Facebook user’s messages bring abortion charges in Nebraska

Protesters lining the street around the front of the Nebraska State Capitol during an Abortion Rights Rally held on July 4, 2022, in Lincoln, Nebraska. A Nebraska woman has been charged in early June with helping her teenage daughter end her pregnancy at about 24 weeks after investigators uncovered Facebook messages in which the two discussed using medication to induce an abortion and plans to burn the fetus afterward. — Lincoln Journal Star via AP

A Nebraska woman was charged with two felonies related to an illegal abortion after authorities discovered information about the pregnancy through private messages on Facebook Messenger, according to court documents. The case renewed debate about how law enforcement may use social media accounts in cases involving reproductive choices.

The messages were collected from Facebook parent company Meta Platforms Inc using a search warrant after investigators in June requested the woman’s personal information to determine whether she had committed other crimes, including concealing the death of another person.

The warrant from local law enforcement asked for data going back to April 15, including account information, images, audio and visual recordings, private messages and other data. The warrant didn’t mention abortion, but it was related to a series of alleged felonies including illegal burial of a stillborn baby.

Police added charges alleging an illegal abortion weeks later, after information received from the social network suggested that the woman, Jessica Burgess, helped her 17-year-old daughter obtain abortion pills. The daughter was more than 20 weeks pregnant, making a termination of the pregnancy illegal in the state. Her daughter is also facing related charges.

In response to the case, Meta spokesman Andy Stone emphasized that the request from law enforcement didn’t discuss 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,” he said in a series of tweets late Tuesday. “Both of these warrants were originally accompanied by nondisclosure orders, which prevented us from sharing any information about them. The orders have now been lifted.”

Though this case, in Norfolk, Nebraska, is particularly complicated, the incident struck a nerve with abortion-rights advocates who were already questioning how technology platforms plan to handle legal requests for users’ personal information, especially when it comes to private content related to reproductive health.

The US Supreme Court’s June reversal of the landmark Roe v. Wade ruling has paved the way for a state-by-state patchwork of newly severe restrictions on abortion access and varying methods for enforcement, leaving technology companies subject to a variety of warrants and subpoenas from investigators looking for a digital trail a patient may have left while trying to access care.

Web searches, instant messages, emails, geolocation data and conference calls may reveal discussions about ending a pregnancy or actual purchases or visits related to a termination. Even health data protected by the federal Health Insurance Portability and Accountability Act, or HIPAA, can be turned over if there’s a court order signed by a judge.

In the Burgess case, information about the mother’s role in her daughter’s abortion appears to have been discovered as part of the investigation of other crimes, but still led to multiple criminal charges related to abortion.

So far, the biggest tech companies have declined to say how they might respond when police or courts demand data from them that could relate to the end of a pregnancy. In some cases, the patient, the care they seek, the company and the data itself may reside in different states with varying laws.

Alphabet Inc.’s Google, the most popular internet search engine, said last month it would automatically delete records of user visits to sensitive locations that many people would prefer remain private, including abortion clinics, fertility centers, addiction treatment facilities, weight loss clinics and counseling centers.

Details of the Burgess case were reported earlier by the Lincoln Journal Star and Vice. – Bloomberg

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