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9 Aug 2022

Jason Koebler & Anna Merlan, Motherboard

USA: Facebook provides private messages resulting in prosecution of a teenager for abortion; inc. co. comments

"This Is the Data Facebook Gave Police to Prosecute a Teenager for Abortion", 9 August 2022

A 17-year-old girl and her mother have been charged with a series of felonies and misdemeanors after an apparent medication abortion at home in Nebraska. The state’s case relies on evidence from the teenager’s private Facebook messages, obtained directly from Facebook by court order... While the court documents, obtained by Motherboard, allege that the abortion took place before the Supreme Court overturned Roe v Wade in June, they show in shocking detail how abortion could and will be prosecuted in the United States, and how tech companies will be enlisted by law enforcement to help prosecute their cases.

According to court records, Celeste Burgess, 17, and her mother, Jessica Burgess, bought medication called Pregnot designed to end pregnancy.

Jessica Burgess is charged with five crimes ... Celeste is charged with one felony... and two misdemeanors: concealing the death of another person and false reporting.

After taking the medication, according to court documents, Celeste gave birth to a stillborn fetus. She and her mother allegedly enlisted the help of a 22-year-old man to bury the fetus, and later discussed via Facebook DM burning it to dispose of it. (The man, Tanner Barnhill, is charged with attempting to conceal the death of another person, a misdemeanor.)  An autopsy report suggested the fetus was stillborn.

Evidence from Facebook

In June, the state submitted a search warrant to Meta, Facebook's parent company, demanding all private data—including DMs—that the company had for the Burgesses. According to an affidavit submitted along with the search warrant, Ben McBride a detective with the Norfolk, Nebraska Police Division had been investigating the alleged abortion.

McBride told the court that law enforcement needed evidence from Facebook in order to determine "whether the baby was stillborn or asphyxiated."

A court approved the search warrant, and Facebook complied with it, according to other court records.

Facebook DMs obtained by law enforcement were then used as the main basis for a second search warrant...

Facebook and other tech platforms have previously declined to say whether they would give law enforcement data that relates to abortion cases. This case shows that Facebook, at least, will and already has. 

A Meta spokesperson tells Motherboard in a statement:

Nothing in the valid warrants we received from local law enforcement in early June, prior to the Supreme Court decision, mentioned 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. 
Both of these warrants were originally accompanied by non-disclosure orders, which prevented us from sharing any information about them. The orders have now been lifted.