The Nebraska case that proved women cannot communicate safely on Facebook

An employee stands under a sign for Meta, the company that owns Facebook (Getty Images)

An employee stands under a sign for Meta, the company that owns Facebook (Getty Images)

A teenager and her mother are facing charges in Nebraska for allegedly inducing a miscarriage. Celeste Burgess, 18, and Jessica Burgess, 41, both face felony and misdemeanor charges for allegedly procuring drugs to end a pregnancy — in other words, buying abortion pills — and disposing of the fetus after it was stillborn. They have both pleaded not guilty, meaning unless they strike a deal with prosecutors in the coming months, they will face trial.

The idea that a teenager would end up being charged with terminating a pregnancy is jarring, but it has been a possibility since Roe v. Wade was overturned. Some might say it was inevitable. And the manner in which the charges were brought against Celeste and Jessica is particularly noteworthy. Facebook released private messages between the mother and daughter when access to them was requested by investigators in Nebraska, according to The Associated Press. It was only after the private messages were reviewed that these investigators believed they had enough evidence to charge the mother with the abortion-related crime. And even though the daughter was a minor when all this happened, the state now chooses to prosecute her as an adult.

“In early June,” the agency wrote, “the mother and daughter were charged with only a single felony count of removing, concealing, or abandoning a body, and two misdemeanors: concealing the death of another person and false reporting. It wasn’t until about a month later, after investigators reviewed the private Facebook messages, that they added the abortion-related charges against the mother. The daughter, now 18, has been charged as an adult at the request of prosecutors.”

Facebook has argued that it was only complying with an arrest warrant when it gave investigators access to Burgess’s messages. “Nothing in the valid evidence we received from local law enforcement in early June, before the Supreme Court decision, mentioned abortion,” Andy Stone, a Facebook spokesman, told the AP. “The dances involved 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 has insisted that its officials “always scrutinize every government request we receive to ensure it is legally valid,” adding that it “will fight back against requests it believes are invalid or overly broad.” Not shy about providing numbers, Facebook told the AP it was asked for data by the government 59,996 times in the second half of last year, and it provided information about 88 percent of those times.

One could point out that there was a time when Facebook showed a little more restraint when it came to sharing users’ information, and a little more energy when it came time to try to defend it. In 2014, it fought a government inquiry into what New York Times described as “the contents of hundreds of Facebook accounts” stemming from a New York social security fraud case, namely “almost complete account data on 381 people, everything from pages they had liked to photos and private messages.” Facebook lost the case, but damn if it didn’t fight it for years (the search warrants were signed in 2013, and the state appeals court didn’t rule on Facebook until 2017).

Of course, one could argue that that case was different, and that it fell under the “overbroad” requests Facebook says it can oppose. The search warrant in the Burgesses case only affected a couple of people, not 381. But whether or not you think Facebook should have fought a little harder to keep the mother and daughter’s information private, the case is a compelling, urgent call for women to rethink how we use technology— and to think about how it can be used against us. (That Meta, Facebook’s parent company, also owns the encrypted messaging service WhatsApp and Instagram is also not what I would call particularly reassuring.)

We seem to be caught in a perfect storm of crappy legal infrastructure (as I think the scientific language says) and technological scrutiny. The charges against Celeste and Jessica Burgess were previously dropped Roe v. Wade by the Supreme Court in June, but the prosecutor handling the case told AP that it is “the first time he has charged someone with illegal abortion after 20 weeks”.

“Before the US Supreme Court overturned Roe v. Wade in June, states were not allowed to enforce abortion bans until the point at which a fetus is considered viable outside the womb, at about 24 weeks,” the agency noted.

Do you remember when people thought that the only consequence of Roe v. Wade going nuclear was that women seeking abortions in red states “would just go somewhere else”? It was obviously a stupid argument (travel requires funds and time, resources that are far from available to everyone), but it is astonishing to see how short-sighted it really was. Of course knocked off Roe is about more than “just” traveling to another state. It is about further poisoning the well in our legal system by making it easier to prosecute women.

The allegations against Jessica and Celeste Burgess are complex, and deserved to be treated as such. The mother and daughter “allegedly enlisted the help of a 22-year-old man to bury the fetus, and later discussed via Facebook DM burning it to get rid of it,” Motherboard reported after obtaining and reviewing court documents. If anything, the case is an illustration of what happens when states impose abortion bans at 20 weeks — a limit condemned by Planned Parenthood.

“Politicians in Congress have repeatedly introduced bills that would impose a nationwide ban on abortion at 20 weeks of pregnancy. This dangerous, outdated legislation is nothing more than another attempt to limit access to safe, legal abortion,” Planned Parenthood wrote on its website. “Nearly 99 percent of abortions occur before 21 weeks, but when they are necessary later in pregnancy, it is often under very complex circumstances.”

When Roe was overturned, several social media users advised others to delete their period-tracking apps, with the idea that any data they might store about their menstrual cycle — including a potential pregnancy — could be used to prosecute them. (New York Times pointed out that it’s hardly just your period tracking app that can be used as digital evidence of a pregnancy or miscarriage.) If proof were needed that this is a valid concern, the Burgess case is it.

In the words of Shane Ferroan attorney at the Legal Aid Society, a nonprofit legal aid provider in New York City: “Yes, you should stop using Facebook, stop using Instagram, use Signal or the real phone to talk about sensitive topics, but you should also demand the government that represents you takes steps to protect your privacy, physically, digitally and otherwise.”

Because most of us don’t have the option to leave the internet entirely – nor should we be forced to. First, I enjoy communicating with my loved ones (many of whom live across the ocean from me.) Second, working online—including on social media—is a big part of my job as a journalist. With that in mind, it would be nice – some might say the bare minimum – if my government could remember that I and other women are human, and maybe it could do a thing or two to protect our basic rights, like the right to privacy.

For a long time we have been told that free markets mean freedom for all. Facebook has just shown how completely untrue that is. We have also been told that our government is there to protect us and that justice will be done in the Supreme Court. This case makes it look ridiculous too.

In a world like this, I and women across America have to ask: Is there anything protecting us at all? Or was it always the point to lock us in?

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