The internet is filled with warnings that single points of digital health data, like details from a period tracking app or Google Maps showing that someone visited Planned Parenthood, could be used against someone in a criminal case. But experts who have studied cases in which people have been prosecuted for abortion-related crimes say those fears are largely misplaced.

Digital information and intent

In the few cases in which people have been charged, law enforcement has been mostly concerned with evidence that someone knowingly carried out an abortion-related crime. A period tracker can at best indicate that someone became and then no longer was pregnant, which stops short of proving they had an abortion.

Prosecutors instead often rely on a digital paper trail created by looking through a suspect’s smartphone. That means text messages, emails and search histories that show someone sought an abortion, said Cynthia Conti-Cook, a Ford Foundation fellow who authored an influential paper about digital evidence used in abortion prosecutions.

Searching on the internet for how to have an abortion isn’t illegal. But states have used search histories as evidence of intent in cases against people who were accused of illegally administering their own abortion.

“A prosecutor is always going to need some evidence of intent,” Conti-Cook said. “As long as we don’t have strong protections for digital self-incrimination, our digital devices will do the work of telling prosecutors what was in our minds at the moment we were accused of conduct related to the termination of a pregnancy.”

That means just about any form of digital communication could become evidence, though not all digital communication is easily acquired by law enforcement either through official requests or subpoenas. Law enforcement can get access to unencrypted information, but they can only view end-to-end encrypted messages such as those sent by apps like Signal by directly accessing a user’s device.

Period apps

The type of information that period-tracking apps store hasn’t been a priority for prosecutors. But some apps that track health data treat it more securely than others, and it’s impossible to fully predict all the ways that prosecutors could use sensitive information to charge someone.

Many period-tracking apps store patient information on one central server. That lets both law enforcement and malicious hackers know where they can go for all user information if they want to get it.

Some apps say they anonymize users’ profiles, though it’s often possible to reverse those kinds of tactics. Some period trackers keep all user information on the user’s phone, like the Flatcracker Software’s Period Plus app.

Abortion pills

Abortion pills pose one of the trickiest legal questions at the moment.