Facebook turned over the chats of a mother and her daughter to Nebraska police after they were 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 of Facebook’s turning over information to help law enforcement officials pursue an abortion case — but it 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.
Madison 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 didn’t 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’s who said she saw her take the first pill in April.
Under a Nebraska 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 28 weeks pregnant, soon after having taken abortion pills.
McBride then applied for and got a warrant in June for access into the digital lives of the mother and her daughter, seizing six smartphones and seven laptops and compelling Facebook to turn over chats between them.
The 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.
Norfolk police didn’t respond to a request for comment.
Facebook stores most user information in plaintext on its servers, meaning the company can access it if it is compelled to do so with a warrant. The company routinely complies with law enforcement requests.
“Nothing in the valid warrants we received from local law enforcement in early June, prior to the Supreme Court decision, mentioned abortion," Meta, the company that owns Facebook said in a statement Tuesday evening.
"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 company said. "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.”
Facebook Messenger offers end-to-end encryption, meaning chats between two users will be visible only on users’ phones and aren’t readable by Facebook or any government entity that makes a legal request to the company. But the option is available only to people using the Messenger app on mobile devices, and messages are encrypted only after users select the option to mark chats 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 group that advocates for reproductive rights policy, said the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization in June to overturn Roe v. Wade most 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 tech companies that store plaintext information about users who intend to have abortions are likely to 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.
CORRECTION (August 12, 2022, 3:24 p.m. ET): A previous version of this article misstated when Celeste Burgess had a miscarriage. It was around 28 weeks into her pregnancy, not 23 weeks.