Michele Gilman, ‘Periods for Profit and the Rise of Menstrual Surveillance’

ABSTRACT
Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in several ways. Menstruators lose control over their personal data and how it is used. Some of these uses can potentially disadvantage women in the workplace, insurance markets, and credit scoring. In addition, these apps can force users into a gendered binary that does not always comport with their identity. Further, period trackers are sometimes inaccurate, leading to unwanted pregnancies. And, the data is also nearly impossible to erase, leading some women to be tracked relentlessly across the web with assumptions about their childbearing and fertility. Despite these harms, there are few legal restraints on menstrual surveillance. American data privacy law largely hinges on the concept of notice and consent, which puts the onus on people to protect their own privacy rather than placing responsibility on the entities that gather and use data. Yet notice and consent is a myth, because consumers do not read, cannot comprehend, and have no opportunities to negotiate the terms of privacy policies. Notice and consent is an individualistic approach to data privacy that envisions an atomized person pursing their own self-interest in a competitive marketplace. The needs of menstruators do not fit this model. Accordingly, this Essay seeks to reconceptualize Femtech within an expanded menstrual justice framework that recognizes the tenets of data feminism. In this vision, Femtech would be an empowering and accurate health tool rather than a data extraction device.

Gilman, Michele E, Periods for Profit and the Rise of Menstrual Surveillance (April 10, 2021). Columbia Journal of Gender and Law, volume 41, 2021.

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