Facebook had no choice but to provide data in Nebraska abortion case

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Facebook came under political scrutiny this week after it was revealed the company passed private messages between a young woman and her mother to Nebraska authorities investigating the death and disposal of a fetus.

The #DeleteFacebook hashtag was trending on Twitter as activists denounced the social media giant’s role in pursuing what looked very much like a young woman’s efforts to end her pregnancy. Faced with the pushback, Facebook said the search warrant they received did not mention abortion, but declined to say how the company would have responded had it been clear the case was about abortion.

Facebook might have had a good reason to remain silent on this issue. Legal experts said that even if the nature of the case had been made clear, the company would have had no choice but to comply.

Prosecutors and local law enforcement have strict rules they must follow to obtain individuals’ private communications or location data to bolster a lawsuit. Once a judge grants a request for user data, tech companies can do little to avoid complying with the requests.

That’s why, say advocates, social media platforms, telcos and other internet data brokers will have to limit the data they collect if they want to avoid helping prosecute women seeking abortions in states where the procedure is illegal.

“If the order is valid and targets an individual, tech companies will have relatively few options to challenge it,” said Corynne McSherry, legal director of privacy advocacy group Electronic Frontier Foundation. “That’s why it’s really important for companies to be careful what they collect, because if you don’t build it, they won’t come.”

How tech companies handle user data has come under increasing scrutiny from privacy advocates, politicians and their own employees since the Supreme Court overturned. Roe vs. Wade in June, making abortion illegal for millions of Americans. Privacy advocates fear that the massive collection of user data by tech companies, from private messages to real-time location information to search results, could be used to prosecute those who obtain or facilitate abortions.

Despite repeated attempts in Congress, there is no comprehensive federal law protecting data privacy in the United States. On Thursday, the government’s top technology watchdog, the Federal Trade Commission, announced it was considering whether to create new federal rules to address privacy concerns over health and location data.

“Some of the discussions around the recent Dobbs This decision only underscores what many people have been saying for a long time: consumer privacy is not just an abstract issue,” said Sam Levine, Director of the FTC’s Consumer Protection Bureau.

In the Nebraska case, Celeste Burgess, now 18, and her mother, Jessica Burgess, were charged in June with covering up a person’s death, among other charges, after authorities alleged that they had attempted to inappropriately bury the body of a stillborn foetus. Jessica Burgess was also accused of performing an abortion on a fetus over 20 weeks old. Abortion is legal in Nebraska until the 20th week of pregnancy; a court affidavit cited medical records estimating that Celeste Burgess was over 23 weeks old when her fetus was aborted between April 22 and April 29.

To bolster the case, a law enforcement officer asked a court to order Facebook to forward the private messages between the women. In his request, the officer said the women told investigators they had texted on Messenger about Celeste’s pregnancy. In the messages, the two women discussed taking pills and removing the “thing” from Celeste’s body, according to court records.

For a court to issue a warrant for such conversations, the request must meet two conditions, experts said: proof that a crime was committed and a narrowly tailored request giving details such as when the exchange took place and who was involved.

“Based on that warrant, they can go to the phone company and say, ‘Give me what I ask for,'” said Daniel Richman, a professor at Columbia Law School.

A similar bar exists for government requests for location data, Richman said.

Once tech companies receive a court-ordered request for information, they have few options. They can either comply with the legal request or commit contempt of court and face a fine.

Companies are much more likely to be successful in challenging a court order if the data requested comes from a large group of people rather than individuals, McSherry said.

In March, a federal judge ruled Virginia authorities violated the constitution when they used Google location data to find people near the scene of a 2019 bank robbery. concluded that a widely used police tactic known as geo-fencing, where an agency asks a company for the identifying information of anyone whose phone has been detected in a given area at a certain time, violated Fourth Amendment protections against unreasonable searches because it gave police information about the locations of many innocent people who were not suspects in the crime.

Many privacy activists say the abortion issue only reinforces what they’ve been saying for years: Tech companies should collect less data that could be used in an abortion lawsuit. Or messaging apps and device makers could implement end-to-end encryption, which means the data is scrambled so outsiders, and even the company, can’t read it.

“It’s obviously good for users of these devices because they don’t have to worry about who has access to what they assume are private conversations,” said Caitlin Seeley George, campaign manager for the group. Privacy Fight for the Future.

“It’s also good for companies, because then they’re not caught in that position where they have to try to defend themselves for their actions. They can simply say, “We didn’t have the ability to share this information.” ”

Cat Zakrzewski contributed to this report.

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