A 17-year-old from Nebraska and her mother face criminal charges, including performing an illegal abortion and hiding a corpse after police obtained the couple’s private chat history from Facebook, court documents published by Motherboard show.
While the charges against the two women are based on established abortion law (Nebraska bans abortion 20 weeks after conception unless the mother’s life is at risk), women’s health activists and digital privacy advocates say the case raises the dangers illustrates ubiquitous digital surveillance in aroe America.
“Since the reversal of roe, Facebook’s parent company Meta and other big tech companies have made big promises about defending access to reproductive health care,” Caitlin Seeley George, director of the nonprofit Fight for our Future, said in a statement. “At the same time, the hypocritical surveillance practices of these companies make them complicit in the criminalization of those seeking, facilitating and offering abortion.”
Court and police records show that police began investigating 17-year-old Celeste Burgess and her mother Jessica Burgess after they received a tip that the couple had illegally buried a stillborn child that Celeste gave birth to prematurely. The two women told Detective Ben McBride of the Norfolk, Nebraska Police Division that they had discussed the matter on Facebook Messenger, prompting the state to issue a search warrant to Meta for their chat history and data, including login timestamps and photos.
Meta complied with the request, with Messenger chat history popping up to show Celeste and Jessica about Celeste’s use of home abortion medications. Celeste was 28 weeks pregnant at the time — at the start of her third trimester.
Police used the chat history as evidence to seize the couple’s computers and phones. Since then, they have charged the two women with a number of crimes, including accusing Jessica of allegedly performing an abortion 20 weeks after conception and performing an abortion without a licensed physician (both crimes), and indicting Celeste. (who is tried as an adult) with the offense of removing, concealing or leaving a dead human body.
In response to media reports, Facebook’s parent company Meta stressed out that the search warrant it received for the data was “valid” and “legal” and that there was no mention of abortion.
“The arrest warrants related to charges related to a criminal investigation and court documents indicate that at the time, police were investigating the case of a stillborn baby who had been burned and buried, not a decision to have an abortion,” tweeted Meta’s communications director Andy Stone. “Both warrants were originally accompanied by nondisclosure orders, which prevented us from sharing information about them. The orders have now been lifted.”
By emphasizing the detail that the warrant did not mention abortion, Meta appears to be trying to distance herself from criticism that her current data collection policies can and will be used to prosecute women in the US who have undergone illegal abortions.
However, campaigners note that Meta must always comply with legal requests for data, and the company can only change this if it stops collecting that data at all. In the case of Celeste and Jessica Burgess, this would mean that end-to-end encryption (E2EE) was the standard in Facebook Messenger. This would have meant that the police would have had to access the couple’s phones directly to read their chats. (E2EE is available in Messenger, but must be enabled manually. It is enabled by default in WhatsApp.)
“Meta has the ability to make end-to-end encryption the default for all of its messages so that no one but the message senders — even people on Facebook or Instagram themselves — can access private conversations,” said George of Fight for the future. “Until Meta gives up private messaging surveillance and starts protecting its users with end-to-end encryption, it will remain complicit in the surveillance and criminalization of pregnant people.”
However, private chat messages are just one part of a slew of digital evidence likely to be used by police to prosecute illegal abortions in the United States. Researchers can request access to many data sources, including digital health records, Google search history, text messages, and phone location data.