Facebook hands over chats to cops in post-Roe abortion case

'If your business model depends on more aggressive surveillance, maybe you need a new business model'

Private Facebook chats between a Nebraska mother and her daughter has been used by law enforcement to build a criminal case against the teen for getting a now-illegal abortion in her home state.

This appears to be the first case in post-Roe America of cops obtaining a search warrant and essentially forcing a tech company to help them prosecute an abortion case.

Jessica Burgess, 41, pleaded not guilty to five criminal charges including felonies for administering abortion pills to her then-17-year-old daughter, and then helping bury the fetus, according to the Lincoln Journal Star. The daughter, who is being tried as an adult, also pleaded not guilty to three charges, including a felony.

A Norfolk Police detective, Ben McBride, began investigating the two women in late April, months before US Supreme Court overturned Roe v. Wade. However, under an earlier Nebraska law, abortion is illegal 20 weeks after an egg is fertilized. 

According to McBride's affidavit [PDF], Burgess claimed to have given birth to a stillborn child when she was around 23 weeks pregnant, after reportedly taking abortion pills.

After obtaining medical records and interviewing both women, McBride obtained a search warrant [PDF] that required Facebook's parent company Meta to hand over a bunch of digital data including user accounts, posts, friend lists, and messages, as law enforcement built its case against the two.

Don't build it, don't keep it, and the cops won't come for it

Meta confirmed that it received the warrant on June 7.

"The warrants did not mention abortion at all," the social media giant said in a statement

"Court documents indicate that police were at that time investigating the alleged illegal burning and burial of a stillborn infant," it continued. "The warrants were accompanied by non-disclosure orders, which prevented us from sharing information about them. The orders have now been lifted."

Using this type of data to prosecute women seeking abortions is exactly the scenario that digital privacy advocates have been sounding the alarm over since it became increasingly clear that the Court intended to overturn constitutional abortion protections.

In May, EFF warned that "service providers can expect a raft of subpoenas and warrants seeking user data that could be employed to prosecute abortion seekers, providers, and helpers."

Given that such companies generally comply with police and government agents' lawful requests for people's personal information in the course of criminal investigations, big tech may ultimately find itself stuck between just handing over that data or significantly overhauling the way they collect and process it.

"Companies generally have to respond to a valid warrant, although they can take care to ensure that it really is valid, and fight it if not," the EFF Legal Director Corynne McSherry told The Register.

"But the best way to protect your users is to minimize the data you collect, delete what you do collect whenever possible, and encrypt private messages end-to-end as a default," McSherry added.

"Don't build it, don't keep it, and the cops won't come for it. And if your business model depends on more aggressive surveillance, maybe you need a new business model." ®

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