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41 Colum. J. Gender & L. 100 (2021)
Periods for Profit and the Rise of Menstrual Surveillance

handle is hein.journals/coljgl41 and id is 118 raw text is: COLUMBIA JOURNAL OF GENDER AND LAW

PERIODS FOR PROFIT AND THE RISE OF
MENSTRUAL SURVEILLANCE
MICHELE ESTRIN GILMAN*
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.
* Venable Professor of Law, University of Baltimore School of Law; Director, Saul Ewing Civil Advocacy
Clinic; Co-Director, Center on Applied Feminism; Affiliate, Data & Society Research Institute.

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