Could Facebook messages be used in abortion-related prosecution?

Originally published by The 19th.

By Shefali Luthra, health reporter.

A Nebraska case involving a mother who illegally gave her daughter an abortion pill has put renewed attention on the role digital information and communication could play in prosecutions around abortion.

In April 2022, Celeste Burgess, who was then 17, used medication to terminate a pregnancy when she was past 20 weeks, which was the cutoff in the state at the time. Facebook messages between her and her mother, Jessica Burgess, showed them discussing how to procure the medication, which Jessica said she acquired for her daughter. Celeste and Jessica told the court that after delivering the stillborn fetus, they burned and buried it.

Both mother and daughter pleaded guilty to felony charges. Celeste, now 18, was sentenced to 90 days in jail on Thursday. Jessica will face sentencing in September. 

Though the incident took place before Roe v. Wade’s overturn, the case has become the first abortion-related prosecution since federal abortion protections ended to rely on people’s online consumer data. The case’s outcome could offer a potential preview to how people’s digital footprints could be used to enforce abortion laws.

“This is all yet to unfold,” said Laurie Sobel, associate director for women’s health policy for KFF, a nonpartisan health policy research organization. “It’s not just state dependent. It’s very local. It’s which prosecutors would like to try to do this.”

State abortion bans typically do not target the pregnant person — only Nevada and South Carolina have active laws criminalizing the pregnant person for taking medication to end a pregnancy. Still, prosecutors can use other laws like “wrongful death” statutes, targeting friends or family who might “aid or abet” someone in pursuit of an abortion — which is illegal in some states — or, as in the Nebraska case, relying on laws that criminalize illegally concealing a dead body. Both Celeste and Jessica pled guilty to charges related to burning and burying the fetus; Jessica also pled guilty to false reporting and to providing an abortion after 20 weeks.

Only two instances in the past year have made use of unprotected consumer data to prosecute people related to abortion: the Nebraska case and another out of Texas, in which a man sued his ex-wife’s friends, claiming they helped her get a medication abortion and that doing so violated the state’s wrongful death statute. In that case, which will go to jury trial next year, the claim relies on text messages the man allegedly found on his ex-wife’s phone. The women being sued have filed a countersuit.

Prosecutions are still rare in part because abortion opponents are nervous about political backlash from targeting pregnant people as opposed to medical providers, said Mary Ziegler, a law professor at the University of California, Davis who studies the anti-abortion movement. For decades, the movement has focused on prosecuting providers instead, in an effort to frame restrictions on the procedure as an effort to protect pregnant people.

But efforts to go after individual patients or their personal support networks could become more common in time, especially as anti-abortion groups grow more frustrated by people finding ways to circumvent state bans, such as ordering medications online from services such as the European organization Aid Access, or traveling out of state to receive abortions. 

If that happens, Ziegler said, internet user data could become a meaningful law enforcement tool. But the sheer amount of online information that exists means officials are more likely to seek records if they have a specific reason, such as a suggestion from another party that the person involved may have somehow sought an abortion.

“It’s not hard for law enforcement to know who to monitor and where to look,” she said. “But if you’re law enforcement and are being tasked to survey your entire state of reproductive age to see if they’re ordering something on the internet or leaving the state, that’s a Herculean task. Even with reams of consumer data, you need a tip.”

Internet user data is relatively unprotected. Meta, which owns Facebook, already complies with the vast majority of government requests — including those from law enforcement — for user information, per company reports. That information can include unencrypted messages sent over its Messenger platform, which the company has access to. Google also complies with most government data requests; that company’s archives can include access to people’s search history and location data if they visit an abortion clinic.

And that type of digital information is just the beginning, some digital privacy scholars argue. The sheer amount of non-medical information stored in people’s internet footprints and on their phones could similarly be used in future abortion prosecutions, several researchers said.

“It’s impossible to know what kinds of cases are on the horizon,” said Aditi Ramesh, the policy manager for watchdog organization Accountable Tech. “There are many, many data points we might not even know about that law enforcement authorities might be able to subpoena and use.”

There are ways for users to circumvent which companies can retain user data, at least to an extent: communicating on encrypted messaging systems, using browser extensions that block internet trackers, searching for abortion-related material in private mode and, if connecting to the internet from a cell phone, making sure to turn off an app’s location services whenever possible. It may help to use a virtual private network as another way to limit the extent to which phones track someone’s location or their search history said Jordan Wrigley, a researcher at the Future of Privacy Forum, a D.C.-based think tank. But not everyone may know how to navigate those options, she added.

“Trying to hide data about one’s health data and use is inconvenient and can be expensive and requires high-level understanding of these tools,” Wrigley said. 

Tech companies that do comply with abortion-related prosecutions and data inquiries may face some internal pushback, noted Jordan Famularo, a cybersecurity scholar at the University of California, Berkeley. She pointed in particular to a case earlier this year, when a group of shareholders at Meta pressed for the company to assess how it could further protect consumer data related to reproductive health, citing the Nebraska case specifically. Their proposal was rejected at a company shareholder meeting. 

Currently, there is little legal protection for people who use internet platforms such as Google or Facebook and who seek abortions. Washington state has passed a law to protect consumer data as it is related to reproductive health, including patients’ search and location history. Similar legislation has been introduced in California, and lawmakers in Massachusetts and New York are also looking at measures that would increase protections for consumer data. 

But abortion is legal in all three of those states, and similar protections don’t exist in the largest states to have banned abortion. Congressional Democrats have introduced a bill that would limit what reproductive health information tech companies can keep or disclose, but those protections are unlikely to pass while Republicans control the U.S. House of Representatives.

For now, even the threat of being reported has another effect, Sobel said: Isolating the people who seek abortions from support networks they might otherwise have turned to.

“People stop talking to their neighbors about what their plans are,” she said. “The laws can be effective without any enforcement.”