This is the scenario that many defenders of women’s rights and pro-choice associations and activists fear.
The nine-member Supreme Court voted 5-4 in June to overturn the 1973 judgment known as Roe v. Wade, which established a constitutional right to abortion. It also voted 6-3 to uphold a Mississippi state law that would ban all abortions after 15 weeks.
The ruling passes the decision on abortion rights to each of the nation’s 50 states, with around half now expected to pass some form of restriction or prohibition.
This decision immediately raised concern among pro-choice associations about protecting the privacy of people seeking abortions or of those who would help them, such as family members, doctors and nurses.
So the question arises: Given the importance of technology in our daily lives, how are tech companies going to deal with abortion data? Will they give them to the authorities in states that prohibit abortion or will they choose to protect their users?
Eyes were mainly on Alphabet’s (GOOGL) Google and YouTube, Meta Platforms’ Facebook (META) and Apple (AAPL) in particular.
We now have hints about how social media giant Facebook might handle these situations.
What Happened in Nebraska?
A 17-year-old from Nebraska and her mother face criminal charges, including performing an illegal abortion and concealing a dead body.
The case arose after investigators uncovered details of the teen’s pregnancy and abortion through private Messenger messages passed to law enforcement by Meta Platforms, the parent of Facebook, Instagram and WhatsApp.
According to police and court documents published by Motherboard, Forbes and Lincoln Journal-Star, the messages leading to the abortion charges against the woman were gathered through a search warrant issued to Meta.
This warrant was requested by a detective who was looking to collect evidence related to other crimes.
Detective Ben McBride received a tip that Celeste Burgess and her mother, Jessica Burgess, buried a stillborn child given birth by Celeste. The pair told McBride they had discussed the matter on Facebook Messenger.
Looking through Facebook data obtained as part of the warrant, investigators appear to have stumbled across posts suggesting the mother helped her daughter have an abortion. The two women indeed discussed a method of abortion at home, the documents show. Celeste was 28 weeks pregnant at the time.
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The police used the chat history between the two women to charge Jessica with allegedly performing an abortion 20 weeks after fertilization and performing an abortion without a licensed doctor.
No Mention of 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,” Meta’s communications director, Andy Stone, said on Twitter.
This position was later confirmed by Meta in a statement that you can read here.
“We received valid legal warrants from local law enforcement on June 7, before the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization,” the company said. “The warrants did not mention abortion at all.”
“Court documents indicate that police were at that time investigating the alleged illegal burning and burial of a stillborn infant. The warrants were accompanied by non-disclosure orders, which prevented us from sharing information about them. The orders have now been lifted.”
Facebook Maintains the Blur
By insisting that the warrant did not contain the word abortion, Meta is trying to dismiss criticism from pro-choice associations and activists.
But the company does not say what it would have done if it knew that the data it gave authorities would incriminate a woman or someone else for abortion.
This line of defense “would seem to imply that *if* the search warrants mentioned abortion, there would be a different result. But of course that’s not true,” Logan Koepke, a project director at nonprofit Upturn, tweeted. His research focuses on the use of new technologies and their impact on criminal justice.
“Unless Meta is announcing a new policy that they will object to search warrants seeking information in abortion-related investigations (which they are not), that sentence means nothing,” Koepke added.
Even if the abortion restrictions in Nebraska had been enacted long before the overturn of Roe v. Wade, which had been protecting access to abortion since 1973, the Burgess case appears to be the first major case — or at least among the first such cases — in which private data provided by a social network were used in a criminal investigation related to abortion.
This case suggests that Meta may be complying with requests from the authorities seeking private messages, images, and any other type of message.
Some 16 other US states also limit or prohibit abortions in early pregnancy.
Meta is making its messaging services end-to-end encrypted, which means the company has no access to message content. Currently, only WhatsApp provides end-to-end encryption.
In July, Google said it would delete a person’s location history after the person visits medical facilities such as abortion clinics, counseling centers, domestic violence shelters, fertility centers, addiction treatment facilities, weight loss clinics, cosmetic surgery clinics and others.