A 17-year-old Nebraska girl and her mother face criminal charges including performing an illegal abortion and concealing a corpse after police obtained the couple’s private Facebook chat history, court documents released by Motherboard To display.
Although the charges against the two women are based on established abortion law (Nebraska prohibits abortions 20 weeks after fertilization unless the mother’s life is in danger), women’s health activists women and digital privacy advocates say the case illustrates the dangers of pervasive digital surveillance in a post-roe deer America.
“Since the overthrow of roe deer, Facebook’s parent company Meta, and other big tech companies have made lofty promises about advocating for access to reproductive health care,” said Caitlin Seeley George, chief executive of the nonprofit. lucrative Fight for our Future, in a press release. “At the same time, these companies’ hypocritical surveillance practices make them complicit in the criminalization of people seeking, facilitating and providing abortions.”
Court and police records show police began investigating Celeste Burgess, 17, and her mother Jessica Burgess after they received a warning that the couple had illegally buried a stillborn child delivered prematurely by Celeste. The two women told Detective Ben McBride of the Norfolk, Nebraska, police division that they discussed the matter on Facebook Messenger, prompting the state to issue Meta a search warrant for their chat history and their data, including login timestamps and photos.
Meta complied with the request, with the Messenger chat history appearing to show Celeste and Jessica discussing Celeste’s use of home abortion medication. At the time, Celeste was 28 weeks pregnant – at the start of her third trimester.
Police used the chat history as evidence to seize the couple’s computers and phones. They have since charged the two women with a number of crimes, including accusing Jessica of allegedly performing an abortion 20 weeks after fertilization and performing an abortion without a licensed physician (both crimes), and charging Celeste (who is on trial as an adult) with the crime of removing, concealing, or abandoning a dead human body.
Details of the case were first reported by the Lincoln Journal-Star and Forbeswith Motherboard release documents, including an affidavit submitted by Detective McBride
In response to the media, Facebook’s parent company Meta pointed out that the search warrant it received for the data was “valid” and “legal” and did not mention abortion.
“The warrants were for charges related to a criminal investigation and court documents indicate that police at the time were investigating the case of a stillborn baby who was burned and buried, not an abortion decision” , tweeted Andy Stone, Meta Communications Director. “Both of these warrants originally came with confidentiality orders, which prevented us from sharing information about them. Orders have now been lifted.
By pointing out the detail that the warrant did not mention abortion, Meta appears to be trying to distance itself from criticism that its current data collection policies can and will be used to prosecute women in the United States who have illegal abortions.
However, activists note that Meta must still comply with legal requests for data, and the company can only change this if it stops collecting this data in the first place. In the case of Celeste and Jessica Burgess, that would have meant making end-to-end encryption (E2EE) the default in Facebook Messenger. This would have meant that the police would have had to access the couple’s phones directly to read their conversations. (E2EE is available in Messenger but must be manually enabled. It is enabled by default in WhatsApp.)
“Meta has the ability to make end-to-end encryption the default for all of its messages, ensuring that no one but message senders – not even people on Facebook or Instagram themselves – can access private conversations,” George of Fight for the Future said. “Until Meta gives up monitoring private messages and starts protecting its users with end-to-end encryption, it remains complicit in the surveillance and criminalization of pregnant women.”
However, private chat messages are just one of a whole host of digital evidence that could be used by police to prosecute illegal abortions in the United States. Investigators will be able to request access to numerous data sources, including digital health records, Google search history, text messages and phone location data.