“Until Meta gives up surveilling private messages and begins protecting its users with end-to-end encryption, it remains complicit in the surveillance and criminalization of pregnant people,” said one advocate.
Digital rights advocates on Tuesday said an abortion case in Nebraska illustrates how powerful tech companies like Facebook could play a major role in prosecutions of people who self-manage abortions as more states ban the procedure, and called on the social media platform to reform its privacy policies to protect users.
The case in Nebraska centers on a 17-year-old girl and her mother, Celeste and Jessica Burgess, who sent messages on Facebook regarding plans to terminate Celeste’s pregnancy prior to Roe v. Wade being overturned in June.
According to court documents posted by Vice Tuesday, a friend of Celeste’s called the police after seeing her take the first of two abortion pills. The teenager, who is being tried as an adult, was estimated to be 23 weeks and two days into her pregnancy. Abortion is legal until 22 weeks of pregnancy in Nebraska.
Celeste’s fetus was stillborn shortly after she took the pills, according to the court filings.
Jessica Burgess was charged last month with three felonies and two misdemeanors and Celeste was charged with one felony and two misdemeanors, all related to performing an illegal abortion, concealing the fetus’s body, and providing false information. They both pleaded not guilty.
After receiving the tip from Celeste’s acquaintance, Detective Ben McBride of the Norfolk Police Investigations Unit obtained a warrant to access digital communications of both Celeste and her mother. The police seized six smartphones and seven laptops from the family and ordered Facebook to turn over messages between the two.
Facebook stores user information on its servers and messages sent through Facebook Messenger are often visible to the company. In order to use end-to-end encryption, which makes messages unreadable to Facebook and anyone who requests access, users have to be using the mobile device Messenger app and have to select a setting to mark the conversation as “secret.”
Facebook told NBC News that the warrant it was ordered to comply with said nothing about a user discussing abortion care and that police told the company the case they were investigating involved “a stillborn baby who was burned and buried.”
While the alleged details of the Burgess case are distinct from the majority of medication abortions—which are approved by the Food and Drug Administration for use in the first trimester of pregnancy—digital rights advocates warned that the current policies of companies like Facebook will make people vulnerable to prosecution as Republican legislators impose abortion bans.
“If companies don’t want to end up repeatedly handing over data for abortion investigations, they need to rethink their practices on data collection, storage, and encryption,” Jake Laperruque, deputy director of surveillance at the Center of Democracy and Technology, told NBC.
At The Verge on Wednesday, James Vincent wrote that “by highlighting the detail that the warrant didn’t mention abortion, Meta [Facebook’s parent company] seems to be attempting to distance itself from criticism that its current data-collection policies can and will be used to prosecute women in the U.S. who have illegal abortions.”
Rights groups including Fight for the Future say the company must make end-to-end encryption the default for all conversations that happen on its platform.
Facebook just handed over private messages between a Nebraska teenager and her mother to aid in an investigation into an abortion, now illegal under state law.
Every single online platform needs to implement default end-to-end encryption of private messages.
— Evan Greer (@evan_greer) August 9, 2022
“Meta has the ability to make end-to-end encryption the default for all of its messages, ensuring that no one but the message senders—not even people at Facebook or Instagram themselves—can access private conversations,” Caitlin George, managing director of Fight for the Future, told The Verge.
“Until Meta gives up surveilling private messages and begins protecting its users with end-to-end encryption, it remains complicit in the surveillance and criminalization of pregnant people,” George added.
The Burgess case gained national attention as reproductive justice and legal advocacy group If/When/How released a report on the criminalization of self-managed medication abortions, finding that although “only seven states historically criminalized self-managed abortion”—and only Nevada, South Carolina, and Oklahoma do now following a push by advocacy groups—”overzealous police and prosecutors have circumvented the law’s parameters” in at least 26 states.
In 43% of the 61 cases If/Now/When examined, police considered homicide or murder charges.
While “there has been a lot of focus on period tracker apps in recent months,” wrote study co-author Laura Huss, “what we’ve seen is that even less sophisticated forms of data and technology—text messages and Google histories—were wielded as evidence in some of these cases.”
As in the Burgess case, more than a quarter of cases were initially reported by an acquaintance.
“The fact remains that abortion stigma, perpetuated by abortion restrictions, leads to criminalization even when there is no authorizing statute,” the report reads. “Isolating 21st Century criminalization lends insight into what the criminalization of abortion is likely to look like in a post-Roe America.”