Nebraska abortion case reveals ‘nothing is beyond’ Big Tech, law enforcement’s grasp

A Nebraska mother and daughter who were charged with abortion-related crimes after their private texts were subpoenaed poses a crucial test of the post-Roe legal landscape, experts say

Teenager Celeste Burgess couldn’t wait to “get the ‘thing’ out of her body”, law enforcement in Nebraska allege.

In a private exchange with her mother Jessica Burgess over Facebook Messenger in April, the then-17-year-old said she would “finally be able to wear jeans” after ending the pregnancy, according to a police affidavit.

The messages, subpoenaed by Nebraska investigators from Facebook’s parent company Meta, allegedly show Jessica, 41, telling her daughter that she obtained abortion pills and would show her how to use them, the Lincoln Journal Star reported, citing court records.

Police accuse Celeste of aborting the pregnancy at about 24 weeks -- past the 20 week limit for abortions in the state -- and say her mother helped her abort the child and bury the foetus.

They were initially charged in June with a felony count of removing, concealing or abandoning a body, and two misdemeanours: concealing the death of another person and false reporting.

After obtaining the texts from Meta, police added more serious abortion-related charges against Jessica Burgess. Celeste, who is now 18, is being tried as an adult at the prosecutors’ request.

The Burgesses’ case has sparked a furious response among pro-choice advocates who say it confirms their worst fears about Big Tech and over-zealous law enforcement officials working together to breach women’s right to privacy post-Roe v Wade.

Outrage was directed especially at Meta. The hashtag #deletefacebook trended on Twitter on Tuesday as did accusations of a gross invasion of privacy.

“Every woman should delete Facebook right now,” Texas-based activist Olivia Julianna tweeted.

Every woman should delete Facebook right now.#DeleteFacebook pic.twitter.com/7kAPRMszUq

— Olivia Julianna 🗳 (@0liviajulianna) August 9, 2022

The social media giant insisted in a statement that they were simply complying with a legitimate legal request, and that police had not revealed in the subpoena that they were pursuing abortion charges.

Legal experts tell The Independent that fear and confusion caused by the Supreme Court overturning Roe in June had “absolutely been an intended consequence”.

“The people who are proponents of right to life, they don’t care. They want the chilling effect,” New York-based criminal attorney Randy Zelin told The Independent.

The Nebraska case is an example of this new, untested legal framework, where a patchwork of contrasting state laws appears to open up to anyone discussing abortion care to potential legal jeopardy.

Randy Zelin, of New York firm Zelin Law, says overturning Roe has opened up a Pandora’s Box of legal ramifications (Supplied)

“I don’t mean to be flippant about it because it is such a sensitive issue. But this is going to stretch the rubber band of lawyerly creativity both on the defence side and the prosecution side. It is going to be limitless,” he said.

He said women charged with illegally having an abortion could put forward a self-defence argument if their life was in danger.

“There’s going to be an entire body of law which is going to be hashed about and thrown around. Depending on what side of the aisle you’re on, it’s horrifying.”

‘Nothing is beyond the grasp of law enforcement’

Police received a tip in April from a friend of Celeste Burgess’s that she had miscarried and buried the foetus. When interviewed, Celeste told police she had a stillbirth unexpectedly in the shower in late April. She claimed that she, her mother and another man helped to bury the baby just outside of their home town of Lincoln, the Lincoln Journal Star reported, citing court records.

The man has pleaded no contest to a misdemeanor, the report said.

The Facebook messages came to the attention of police after Celeste Burgess scrolled through them looking for the date that she miscarried, according to the Journal Star.

In a statement to The Independent, Meta said received the subpoenas on June, before the Supreme Court’s decision in June that ended federal abortion protections.

Meta said the warrants did not mention abortion at all, and that the police were at that time investigating the alleged illegal burning and burial of a stillborn infant.

The additional charges were added in July, after police seized computers and phones belonging to both mother and daughter, and accessed their private messages.

Jessica and Celeste Burgess pleaded not guilty to all charges including concealing the death of another person and abandoning a body at a hearing in the Madison County Court last week, KMTV reported.

Officials have also charged a 22-year-old man for helping the mother and daughter in burying the foetus.

In his request to the judge, Detective Ben McBride of the Norfolk Police Investigations Unit said he wanted to access the messages as they “that might indicate whether the baby was stillborn or asphyxiated”.

“I know from prior training and experience, and conversations with other seasoned criminal investigators, that people involved in criminal activity frequently have conversations regarding their criminal activities through social networking sites i.e. Facebook,” he said.

The investigator also requested for the chats without informing the mother and daughter as the disclosure “may result in the destruction of or tampering with evidence, or have an adverse result or effect on the investigation”.

Mr Zelin told The Independent that Nebraska police had every right to go after the messages, as the law does not afford an expectation of privacy to families’ communications like it would to an attorney-client or physician-patient relationship.

Even encrypted messages on platforms such as WhatsApp, which is also owned by Meta, could be accessible to police.

“People had better understand that deleting a message is not making it go away like it never happened. It is amazing what people are able to recover from computers and smartphones,” Mr Zelin said. “Nothing is beyond the grasp of law enforcement.”

Prosecutors could even claim that using encrypted apps to discuss abortion care was evidence of trying to conceal a crime, he said.

“The more lengths you go to hide it, that will be thrown right up in your face as consciousness of guilt.”

Attorney Neama Rahmani, president of West Coast Trial Lawyers, told The Independent that law enforcement’s ability to access encrypted messages depended on the type of encryption technology used and where the company that owns the technology is based.

“The average person would probably find it very difficult to gauge which type of encrypted technology is the safest from law enforcement intrusion, because law enforcement is constantly finding ways to crack open the codes on different technologies and they obviously don’t announce that type of thing before they have to disclose it in court documents,” Mr Rahmani said.

As soon as the landmark 1973 precedent was overturned on 24 June, privacy experts sounded the alarm bells that Big Tech would be used as a tool by over-zealous law enforcement officials.

In a statement following the Supreme Court’s ruling, digital rights group the Electronic Frontier Foundation said: “Those seeking, offering, or facilitating abortion access must now assume that any data they provide online or offline could be sought by law enforcement.”

Among the companies that privacy advocates raised concerns about were Twitter, TikTok, Uber, Snap and Microsoft.

Officials in states with punitive abortion laws such as Texas and Oklahoma have pledged to charge any women who seek abortions with first-degree felony charges punishable by up to 10 years in prison.

Jessica Burgess’s lawyer Brad Ewalt told The Independent he was unable to comment while the case was pending.

Celeste Burgess is being represented by a public defender, who could not be reached for comment.