For the first time since Roe v. Wade was overturned, there’s a clear example showing exactly how Facebook will react to law enforcement requests for abortion data without user consent.
Forbes reports that a 17-year-old named Celeste Burgess in Nebraska had her Facebook messages subpoenaed by detective Ben McBride, who suspected that Burgess’ reported stillborn birth was a medication abortion. In the officer’s affidavit, he explains that he asked that Meta not notify the teen of the request for her Facebook data because she might tamper with or destroy evidence. Court records show that Meta complied with the logic.
Meta did not immediately respond to Ars’ request for comment on this case, but previously, Meta has said that “we notify users (including advertisers) about requests for their information before disclosing it unless we are prohibited by law from doing so or in exceptional circumstances, such as where a child is at risk of harm, emergencies, or when notice would be counterproductive.” (Update: A Meta spokesperson says, “Nothing in the valid warrants we received from local law enforcement in early June, prior to the Supreme Court decision, mentioned 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.” The spokesperson also clarified the reason why data was shared without notifying Celeste or Jessica Burgess: “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.”)
In this case, no child was at risk of harm because the abortion occurred in April, months before the data request in June. There was also no emergency seemingly. That leaves some other kind of “exceptional circumstances” to justify Meta sharing the data without notice, or else this case counts as being “counterproductive” for Meta to provide notice, as McBride suggests in his affidavit.
What happened?
According to court documents, Burgess was 28 weeks pregnant when her mother, Jessica Burgess (who is also being charged), helped her mail-order abortion pills in April to terminate the pregnancy.
An abortion at 28 weeks breaks Nebraska law, which hasn’t changed since the Dobbs decision, but prevents abortion after 20 weeks.
McBride says his investigation started when he learned that the mother and daughter had buried a child after claiming the baby was stillborn. Immediately, McBride sought medical records to find out when Celeste miscarried, and when he interviewed the teen about the day of her miscarriage, he noticed that she consulted her Facebook Messenger app to determine the exact date.
This led McBride to believe that there was more evidence in the case stored on Facebook owner Meta’s servers. So, even though the final autopsy report said the cause of the baby’s death was undetermined, McBride still sought evidence to confirm that Celeste had an abortion. He says in his affidavit that Celeste sharing her messages with him was a turning point that led him to believe that “there will be more messages.”
His request to Meta cited suspicions that the tech company was keeping evidence of a crime under Prohibited Acts with Skeletal Remains, not abortion. To support his case, he sought every photo of mother and daughter, plus every photo they’d been tagged in, all their private messages, and location data via their IP logs.
Following the data request, both Celeste and Jessica Burgess were arrested, with bond set at $10,000. Since then, both have been released, and their jury trial is now planned for October. Celeste will be tried as an adult for two misdemeanors and one felony for burying the stillborn child. Jessica is charged with two misdemeanors, as well as three felonies for performing an abortion after 20 weeks as an unlicensed abortion provider and then hiding the body.
Attorneys representing the state of Nebraska and public defenders representing Celeste Burgess did not immediately respond to Ars’ requests for comment or requests from other outlets.
Although the criminal charges seem to have little to do with Roe v. Wade being overturned, the notion that helping someone procure mail-order abortion pills equates to performing an abortion as an unlicensed provider is another wrinkle that’s concerning for people in states losing access to abortion. Attorney General Merrick Garland previously stated that states could not ban abortion pills but didn’t specify that providing abortion pills couldn’t be banned. The case in Nebraska has exposed that new hurdle to reproductive rights.
In her messages to her mother, Celeste seems to carefully avoid directly mentioning “abortion pills,” seemingly taking advice from experts who have recommended using code words. Jessica, however, refers to pills, hormones, and the time Celeste will have to wait before taking doses of the medication. Because of these messages, law enforcement pursued a second search warrant, seizing 13 laptops and phones that yielded 24GB of data, including texts and web histories. The Facebook data opened the floodgate to all their data.
Unless Meta changes its stance on sharing sensitive data without user consent, experts have offered advice to help abortion seekers avoid law enforcement mining online data for evidence. The Electronic Frontier Foundation has posted guides like this one to help anyone concerned about protecting the privacy of abortion-related data. Or, for anyone who’s deeply troubled by Facebook’s actions or is living in a state without abortion access, there is still one way to guarantee that Facebook won’t share your data in the future—a method that started trending on Twitter after news of the Nebraska teen’s case broke nationwide—#DeleteFacebook.
https://arstechnica.com/?p=1872574