A 17-year-old from Nebraska and her mother are facing criminal charges including performing an illegal abortion and concealing a dead body after police obtained the pair’s private chat history from Facebook, court documents published by Motherboard show.
Although the charges against the two women are based on established abortion law (Nebraska outlaws abortions 20 weeks post-fertilization unless the mother’s life is in danger), women’s health campaigners and digital privacy advocates say the case illustrates the dangers of ubiquitous digital surveillance in a post-Roe America.
“Since the reversal of Roe, Facebook’s parent company Meta and other Big Tech companies have made lofty promises about defending access to reproductive healthcare,” Caitlin Seeley George, managing director of nonprofit Fight for our Future, said in a statement. “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 that police began investigating 17-year-old Celeste Burgess and her mother Jessica Burgess after receiving a tip-off that the pair had illegally buried a stillborn child given birth to prematurely by Celeste. The two women told detective Ben McBride of the Norfolk, Nebraska Police Division that they’d discussed the matter on Facebook Messenger, which prompted the state to issue Meta with a search warrant for their chat history and data including log-in 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 pair’s computers and phones. They have since charged the two women with a number of crimes, including charging Jessica with allegedly performing an abortion 20 weeks after fertilization and performing an abortion without a licensed doctor (both felonies), and charging Celeste (who is being tried as an adult) with the felony of removing, concealing, or abandoning a dead human body.
In response to media reports, Facebook’s parent company Meta stressed that the search warrant it received for the data was “valid” and “legal” and that it didn’t mention abortion.
“The warrants concerned 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 a decision to have an abortion,” tweeted Meta’s communications director Andy Stone. “Both of these warrants were originally accompanied by non-disclosure orders, which prevented us from sharing any information about them. The orders have now been lifted.”
By highlighting the detail that the warrant didn’t mention abortion, Meta 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 US who have illegal abortions.
However, campaigners note that Meta always has to comply with legal requests for data, and that the company can only change this if it stops collecting that data in the first place. In the case of Celeste and Jessica Burgess, this would have meant making end-to-end encryption (E2EE) the default in Facebook Messenger. This would have meant that police would have had to gain access to the pair’s phones directly to read their chats. (E2EE is available in Messenger but has to be toggled on manually. It’s on 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 the message senders — not even people at Facebook or Instagram themselves — can access private conversations,” said George of Fight for the Future. “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.”
However, private chat messages are only one component in a whole range of digital evidence that is likely to be used by police to prosecute illegal abortions in the United States. Investigators will be able to request access to many data sources, including digital health records, Google search history, text messages, and phone location data.