IPhoneXLockWhen I think of the intersection of the iPhone and the law, I usually think about how lawyers can use an iPhone and related products like the iPad and Apple Watch in a legal profession.  But there are also legal implications of the data stored on an iPhone and other devices that must be considered by all iPhone users, regardless of whether they are lawyers.

Sometimes, the data comes from a victim of a crime.  For example, Christine Hauswer of the New York Times reported in 2018 that a man was arrested for killing his stepdaughter because while he claimed that he had an innocent visit with her that just so happened to occur shortly before she was killed, the victim was wearing a FitBit that recorded a spike in her heart rate when he was there, then a slowing and eventually stopped heart rate after he left the house.  Carol Robinson of the Birmingham News reported in 2021 that a man was convicted of killing his wife in part based on data from the Health app on her iPhone, which provided evidence of where she was and when she moved.

Sometimes, the data comes from the iPhone or other device used by the person accused of breaking the law.  For example, Samantha Cole of Motherboard reported in 2018 about a man in Germany who was arrested for raping and murdering a student in part based on data in the Health app on his iPhone, which showed that he climbed stairs at the time that the police knew that the victim’s body was brought down to a river embankment.  That defendant refused to give the police access to his iPhone, but they were able to use hacking software to bypass his passcode.

I’m not going to focus on the legal merits of the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, which of course overruled Roe v. Wade and numerous other precedents and sets the stage for a large number of other decisions that will take away even more privacy rights.  Instead, I want to point out an important iPhone angle that I’ve seen mentioned in numerous news stories, such as this one by Cordilia James and Shara Tibken of the Wall Street Journal and this one by Geoffrey A. Fowler and  Tatum Hunter of the Washington Post.  For women who use an iPhone app to track their period, if they live in a state that has criminalized abortion, the data in that app could be used as evidence against them.  Prof. Danielle Citron of the University of Virginia School of Law was quoted in a CNN article by Jennifer Korn and Clare Duffy as saying:  “Let’s say you got your period, stopped your period and then got your period again in a short time …  It’s [potential] evidence of your own criminality, or your doctor’s criminality.”

As those articles note, some of these apps store the data online, so the police or others looking for evidence would not even need to access the woman’s iPhone, just the online data being stored by the developer of the app.  In response to this, numerous apps are now promising to anonymize the data to reduce this risk.

Women don’t need to use a third-party app to monitor their cycle.  Apple’s built-in Health app can be used, and as John Gruber of Daring Fireball noted recently, if you are using two-factor authentication on your iCloud account, the data is mathematically secure via end-to-end encryption.  But there is always some risk that the police could bypass the security on an iPhone just like those German police officers did in 2018, although today’s iPhone is far more secure than it was a few years ago.  Police might also try to force a woman to place her finger on an iPhone or use her face to unlock her iPhone against her will.  In another recent post, Gruber reminds all of us that you prevent that from happening by using the side buttons to lock your iPhone.

And of course, it is not just police who might try to access this type of data.  Texas, for example, has a law with a $10,000 bounty to encourage private citizens to sue any women who they believe may have had an abortion.  I’m sure that folks taking advantage of a law like that would see no problem invading a woman’s privacy by seeking access to confidential records on her iPhone.

I wish I could conclude this post by pointing to some easy answer for women trying to protect their digital privacy, but I don’t have one.  Using Apple’s own Health app seems more secure than third-party alternatives, but it is not without risk.