Facebook turned over chat messages between mother and daughter now charged over abortion

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Facebook turned over the chats of a mother and daughter to Nebraska police after getting served with a warrant as part of an investigation into an illegal abortion, court documents show.

The investigation, which was launched in April before the Supreme Court overturned Roe v. Wade, is one of the few known instances where Facebook has turned over information to help law enforcement pursue an abortion case — but is also an example of a scenario that abortion rights experts have warned will be more common as all abortions becomes illegal in many states.

County prosecutors say Jessica Burgess, 41, acquired and gave abortion pills to her daughter, Celeste, who was 17 at the time, and then helped her bury and then rebury the fetus. The Norfolk Daily News first reported the case. The two were charged last month and have pleaded not guilty. A lawyer for the two women did not respond to a request for comment.

According to a sworn affidavit from Detective Ben McBride of the Norfolk Police Investigations Unit, police started with a tip from a woman who described herself as a friend of Celeste who said she saw her take the first pill in April.

Under a Nebraska state law enacted before Roe was overturned, abortion is illegal 20 weeks after an egg is fertilized. According to McBride’s affidavit, Burgess had a miscarriage when she was around 23 weeks pregnant, soon after taking abortion pills.

McBride then applied for and received a warrant in June for access into the digital lives of the mother and daughter, seizing six smartphones and seven laptops and compelling Facebook to turn over chats between them.

Those alleged chats, published in court documents seen by NBC News, show a user named Jessica telling a user named Celeste about “What i ordered last month” and instructing her to take two pills 24 hours apart.

The Norfolk Police Department didn’t respond to a request for comment.

Facebook stores most user information in plaintext on its servers, meaning that the company can access it if compelled to do so with a warrant. The company routinely complies with law enforcement requests. 

Facebook didn’t respond to a request for comment for this article.

Facebook Messenger offers end-to-end encryption, meaning that chats between two users will only be visible on users’ phones, and are not readable by Facebook or any government entity that makes a legal request to the company. But that option is only available to people using the Messenger app on a mobile device, and messages are only encrypted after they select the option to mark a chat as “secret.”

“I know from prior training and experience, and conversations with other seasoned criminal investigators, that people involved in criminal activity frequently have conversations regarding their criminal activities through various social networking sites, i.e. Facebook,” McBride said in his warrant application.

Prosecutors charged Jessica Burgess with three felonies and two misdemeanors and Celeste Burgess with a felony and two misdemeanors. All charges were related to performing an abortion, concealing a body and providing false information.

Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a nonprofit that advocates for reproductive rights policy, said that the Supreme Court’s decision in June to overturn Roe v. Wade likely didn’t change Nebraska law enforcement’s legal ability to bring the charges, as the state hasn’t changed its law since then and the case began in April.

But it’s the type of case abortion law experts expect to see more of in a post-Roe world, she said.

“The police could have decided not to charge them, but it looks like the police are throwing the book at the mother and daughter, charging them with everything from criminal abortion to false reporting,” Nash said. “This is the kind of response we are expecting to the Dobbs decision and states banning abortion.”

Jake Laperruque, the deputy director of surveillance at the Center of Democracy and Technology, a think tank that promotes digital rights, said that tech companies that store plaintext information about users who intend to have abortions will likely continue to be served warrants as more states prosecute abortion-related crimes.

“This is going to keep happening to tech companies that store significant amounts of communications and data,” Laperruque said.

“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,” he said.

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