Abstract
After the fall of Roe v. Wade, states across the country have enacted extreme abortion bans. Anti-abortion states, emboldened by their new, unrestricted power to regulate women’s bodies, are only broadening the scope of abortion prosecutions. And modern technology provides law enforcement with unprecedented access to women’s most intimate information, including, for example, their menstrual cycle, weight, body temperature, sexual activity, mood, medications, and pregnancy details. Fourth Amendment law fails to protect this sensitive information stored on femtech apps from government searches. In a largely unregulated private market, femtech apps sell health and location data to third parties like Fog Data, who in turn sell this information to police departments. According to traditional interpretations of the third-party doctrine, all reasonable expectations of privacy are eliminated when app users click “accept” to obscure privacy policies. Instead, the Supreme Court should follow the trajectory of their recent decisions and treat modern surveillance techniques differently from traditional government searches. The Court must extend Carpenter’s reasoning to Fog Data because these services allow police to search billions of location data points and instantly discover personally identifying information. Congress can also strengthen privacy protections by adopting comprehensive bills that expand health privacy coverage and prevent the government from purchasing location data from private companies.
Recommended Citation
Rachel Silver,
A Miscarriage of Justice: How Femtech Apps and Fog Data Evade Fourth Amendment Privacy Protections,
30 Wash. & Lee J. Civ. Rts. & Soc. Just. 141
(2023).
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol30/iss1/7
Included in
Civil Rights and Discrimination Commons, Computer Law Commons, Fourth Amendment Commons, Health Law and Policy Commons, Human Rights Law Commons, Law and Gender Commons, Privacy Law Commons