In Nebraska, the prosecution of an alleged illegal abortion has highlighted the fact that evidence from online services such as Facebook is fair game for evidence in a post-deer WE
AILSA CHANG, HOST:
A Madison County, Neb., prosecutor has charged a woman with helping her daughter get an illegal abortion. And some of the evidence against her was turned over to the police by Facebook.
NPR law enforcement correspondent Martin Kaste followed this story and joins us now. Hello Martin.
MARTIN KASTE, BYLINE: Hello, Ailsa.
CHANG: Wait. So is this the first abortion lawsuit after the overturning of Roe v. Wade in June?
KASTE: Well, some have phrased it that way, but it’s a little murkier than that. What happened is that in April, police in the city of Norfolk, Neb., investigated two women, Jessica Burgess, 41, and her daughter, Celeste Burgess, who was 17 at the time. They investigated them for mishandling human remains. Police say a fetus that Celeste says was stillborn was illegally disposed of, burned, and then buried. And the women were originally charged for it in June. But then the police got a warrant to see the women’s private Facebook messages. And they say these showed that it wasn’t a miscarriage; that in fact, Jessica had helped her daughter obtain pills to perform an illegal abortion.
CHANG: Alright. But why would this alleged abortion be illegal if it happened before Roe v. Wade? I don’t understand.
KASTE: Well, the police say the pregnancy was 23 weeks. Nebraska law prohibits abortion after 20 weeks. Now this would not have been enforceable under Roe v. Wade. Now it would, but legal experts doubt it could be enforced for an abortion performed weeks before the Supreme Court ruling. Even Judge Brett Kavanaugh said so in his concurring opinion. So you’re right that these criminal abortion charges might not hold up in court.
CHANG: Alright. Well, let’s get to those Facebook posts. I understand the police got them with a warrant – right? – while investigating, as you say, the mishandling of human remains. How exactly did these messages lead to these charges of illegal abortion?
KASTE: Well, these are very private conversations between a mother and her daughter. They are quite frank. They talk about when to take the pills. Celeste writes, I will finally be able to wear jeans. It must be said that we tried to reach the Bourgeois and their lawyers by telephone today without success. But both women have pleaded not guilty.
CHANG: And how does Facebook explain why they gave these private messages to the police?
KASTE: Well, they wouldn’t tell us about it – they wouldn’t tell about it on the record. They rarely do in cases like this. But their parent company, Meta, released a statement and it said police gave them, in quotes, “valid legal warrants”. And they say the warrants didn’t mention abortion. But what they don’t say is whether they would have handled this differently if they had known it was an abortion investigation.
I talked about it with Andrew Crocker. He’s a senior attorney for the Electronic Frontier Foundation. And he says if a warrant is legal, a tech company like Facebook will comply.
ANDREW CROCKER: Every day across the country, police have access to private messages. And it’s an extremely routine part of everyday criminal investigations. I think a lot of people realize this because of the expansive nature of how we expect abortion investigations to go. And it’s going to touch people’s lives, the lives of many more people, in ways that they may not have thought about in the past.
CHANG: Alright. It may be routine, but what do you think, Martin? Do you know if companies like Meta will come under heavy public pressure not to cooperate with abortion investigations?
KASTE: Well, these data companies have long had a policy of complying with valid mandates in the jurisdictions they come from. And even EFF’s Andrew Crocker says it’s probably not a good idea if they start picking and choosing which types of criminal investigations they’re willing to cooperate with. What he’d like to see, however, is that companies like Meta might be willing to start keeping less information about people on hand so it’s not available when law enforcement are calling. And, of course, people have the ability to move their conversations to other platforms like Signal, where everything is end-to-end encrypted. And this company didn’t – couldn’t deliver your messages even if they wanted to.
CHANG: It’s an option. Okay, that’s NPR law enforcement correspondent Martin Kaste. Thanks Martin.
KASTE: You’re welcome.
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