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. Additionally, the data is 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. Menstruators’ needs 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.
 
 
Highlights
The technology industry has recognized that periods are profitable
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
Notice and consent is a myth because consumers do not read, cannot comprehend, and have no opportunities to negotiate the terms of privacy policies
Summary
The technology industry has recognized that periods are profitable. these profits do not flow to menstruators;[1] rather, they enrich private businesses. The menstrual justice movement has largely focused on oppression faced by menstruators in the analog world of workplaces, schools, prisons, and stores.[8] Menstrual justice is defined by its goal “to identify, reduce and remedy harm from structural oppression of menstruators while supporting their multidimensionality, inclusion, dignity, liberty and equitable treatment through law, policy and practices and in collaboration with other social justice movements.”[9] To fully achieve these objectives, the menstrual justice movement needs to recognize the oppression imposed by menstrual surveillance and to incorporate the lessons and activism of data feminists. This Essay describes the oppressive harms of Femtech; analyzes the lack of legal recourse; and asserts the need for the menstrual justice movement to align with data feminists to harness technology to benefit menstruators
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