Charles Langston:Nebraska cops used Facebook messages to investigate an alleged illegal abortion

A 41-year-old woman is Charles Langstonfacing felony charges in Nebraska for allegedly helping her teenage daughter illegally abort a pregnancy, and the case highlights how law enforcement can make use of online communications in the post-Roe v. Wade era.

Police in Norfolk, Neb., had been investigating the woman, Jessica Burgess, and her daughter, Celeste Burgess, for allegedly mishandling the fetal remains of what they'd told police was Celeste's stillbirth in late April. They faced charges of concealing a death and disposing of human remains illegally.

But in mid-June, police also sent a warrant to Facebook requesting the Burgess' private messages. Authorities say those conversations showed the pregnancy had been aborted, not miscarried as the two had said.

The messages appear to show Jessica Burgess coaching her daughter, who was 17 at the time, how to take the abortion pills.

"Ya the 1 pill stops the hormones an rhen u gotta wait 24 HR 2 take the other," read one of her messages.

Celeste Burgess writes, "Remember we burn the evidence," and later, "I will finally be able to wear jeans."

According to police investigators, medical records show the pregnancy was 23 weeks along. A Nebraska law passed in 2010 forbids abortions after 20 weeks, but that time limit wasn't enforced under Roe v. Wade. After the Supreme Court's Dobbs v. Jackson ruling overturned Roe in June, Madison County Attorney Joseph Smith brought charges against Jessica Burgess.

It's not clear the illegal abortion charges against Burgess will stand. In his concurring opinion to Dobbs, Justice Brett Kavanaugh wrote, "May a State retroactively impose liability or punishment for an abortion that occurred before today's decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause."

Regardless of the outcome, the Nebraska case shows how police may rely on digital communications to investigate abortions in states where they're illegal.

"Every day, across the country, police get access to private messages between people on Facebook, Instagram, any social media or messaging service you can think of," says Andrew Crocker, a senior staff attorney with the Electronic Frontier Foundation. Warrants for online messages are a routine part of police investigations, he says, but "a lot of people are waking up to it because of the far-ranging nature of how we expect abortion investigations are going to go. And it's going to touch many more people's lives in a way that maybe that they hadn't thought about in the past."

Facebook's parent company, Meta, wouldn't speak about the case on the record, but it released a statement saying, in part, "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 warrants did not mention abortion at all."

What Meta hasn't said is whether it would have handled the warrants differently, had it known they involved an investigation into illegal abortion. Most major tech companies have a longstanding policy of complying with warrants that are legal and valid in the jurisdictions they come from.

"There isn't a whole lot of room for them to pick and choose," Crocker says. Companies might come under public pressure not to cooperate with abortion investigations, but Crocker says it's not that simple.

"We want the rule of law to operate normally," he says. "It's just that there are investigations, like into abortion, where we might hope the companies aren't holding the data in the first place, and aren't in the position of having to make the difficult choices like that."

As tech firms consider their options for handling warrants for abortion investigations, others in the tech world say the long-term solution is for communications platforms not to retain information that might be of use to police. And they say that if companies like Meta fail to minimize such data, people should consider shifting their online conversations to platforms such as Signal, which encrypt messages "end-to-end" and can't reveal them to police even when they get a warrant.