The Controversy Explained
A recent controversy has erupted over reports that Facebook provided private user messages to law enforcement in Nebraska as part of a criminal investigation. Here are some key questions and answers to understand what happened:
What are the allegations against Facebook?
In June 2022, legal filings revealed that Meta Platforms, Facebook’s parent company, had complied with search warrants from law enforcement in Nebraska and provided private messages sent on their platform.
The warrants were related to the investigation of an illegal abortion that took place in Nebraska in late 2022. Abortion became illegal in Nebraska after the Supreme Court overturned Roe v. Wade in June 2022.
The private messages obtained by police allegedly discussed facilitating the illegal abortion. The subpoenas were broad, covering entire accounts, and were not limited to messages specifically regarding the criminal investigation.
How did Facebook respond to the allegations?
Facebook maintains it received valid legal requests and was obligated to comply with the search warrants.
A Meta spokesperson provided this statement:
“The warrants concerned charges related to a criminal investigation and court documents indicate that police attested that they had probable cause to believe the accounts in question contained evidence of crimes. The warrants were accompanied by non-disclosure orders that prevented us from sharing information about them until recently.”
However, Facebook stated it will be closely reviewing the warrants for compliance with the law going forward.
How much data did Facebook provide to law enforcement?
While the full scope remains unclear, the warrants covered extensive amounts of private user data.
Reports indicate at least 12 people had their Facebook messages revealed during the investigation. The warrants covered entire accounts and were not limited to specific information.
Over 82 pages of private messages and user data were handed over to the authorities, spanning hundreds of individual communications.
Is this a common occurrence for technology companies?
Major technology companies frequently comply with government data requests as part of criminal investigations.
However, the broad nature of the warrants sets a troubling precedent in this case. Law enforcement obtained expansive access to private conversations without specificity on the exact information sought.
How have digital privacy advocates responded?
Digital rights groups harshly criticized Facebook’s compliance with the overbroad search warrants.
The Electronic Frontier Foundation released this statement:
“Facebook must push back on overbroad demands from law enforcement for private communications and ensure proper legal protections are in place. Users rely on platforms to guard their data against unjustified access.”
The ACLU of Nebraska also condemned the “dangerous invasion of privacy” demonstrated by the warrants. They called on Facebook to be more transparent about its policies for complying with government requests.
Overview of the Nebraska Abortion Case
To fully understand the context around Facebook’s involvement, here is a summary of the Nebraska criminal investigation that led to the controversial warrants:
What alleged crimes were committed?
In April 2022, investigators in Norfolk, Nebraska began looking into an alleged illegal abortion that took place in the city.
Abortions after 20 weeks became illegal in Nebraska once Roe v. Wade was overturned, except in medical emergencies.
The police obtained evidence that a 17-year-old girl allegedly underwent an illegal surgical abortion in Norfolk in late 2022.
Who is being criminally charged?
In July 2022, Norfolk police criminally charged 41-year-old Jessica Burgess with performing an illegal abortion as an unlicensed doctor.
Burgess allegedly conducted a surgical abortion when the fetus was 23 weeks along.
Investigators also charged 22-year-old Celeste Burgess, the mother of the 17-year-old who underwent the abortion. Celeste is accused of helping coordinate the illegal procedure.
What is the current status of the case?
As of October 2022, the criminal trial is still ongoing.
Jessica Burgess has pleaded not guilty to all charges. Celeste Burgess has not yet entered a plea but also denies the allegations.
Lawyers for the two women have criticized what they call an “invasive investigation” by police, including obtaining the private Facebook messages.
If convicted, Jessica and Celeste Burgess could each face over 20 years in prison on the felony charges.
How were the Facebook warrants justified by police?
The warrants submitted by Norfolk police claimed the Facebook accounts contained evidence of crimes related to facilitating and performing an illegal abortion.
Investigators believed private messages would demonstrate intent, planning, coordination and payment for the prohibited abortion.
The extensive warrants allowed access to all messages, photos, videos and user data to build the criminal case.
Facebook’s Policies on Privacy and Complying with Law Enforcement
Facebook and its parent company Meta have extensive policies about how they handle government requests for user data, including from law enforcement. Here is an overview of those policies:
What does Facebook say about protecting user privacy?
Facebook claims that respecting the privacy of its users is of paramount importance. Its published policies state:
“We work around the clock to help protect people’s accounts, and we build security into every Facebook product. Our security systems run millions of times per second to help catch threats automatically and remove them before they ever reach you.”
However, Facebook also admits it will hand over user data when compelled by law enforcement through proper legal processes. Their policy states they may disclose account records “in response to a legal request if we have a good faith belief that the law requires us to do so.”
How does Facebook evaluate law enforcement requests?
Facebook states all requests from law enforcement are reviewed for “legal sufficiency.” This means valid legal documentation must be provided, such as subpoenas, search warrants and court orders.
For users based in the U.S., requests also must comply with the Stored Communications Act. This requires probable cause warrants for content data.
Facebook claims requests deemed deficient or excessively broad are challenged through legal avenues.
What types of data can law enforcement obtain?
Depending on the request, law enforcement can obtain:
– Basic subscriber information like name, length of service, IP address, etc.
– Photos, documents and other files stored on Facebook
– Private messages and contents of the account
– Location history data including device locations
– Records of who the user interacted with on Facebook
How many law enforcement requests does Facebook receive?
According to its latest transparency report, Facebook received 57,294 requests for user data from U.S. authorities in the second half of 2021.
They produced at least some data in response to 88% of those requests.
Globally, Facebook receives tens of thousands of requests per year across its family of apps.
| Year | Total Requests | Requests Producing Data |
|---|---|---|
| 2016 | 56,605 | 41% |
| 2017 | 82,341 | 52% |
| 2018 | 107,694 | 62% |
| 2019 | 122,181 | 74% |
| 2020 | 165,737 | 78% |
| 2021 | 117,399 | 88% |
Nebraska Abortion Laws and Investigations after Roe v. Wade
To fully understand the context of this criminal case, here is an overview of Nebraska’s laws on abortion and the enforcement climate after Roe v. Wade was overturned:
What was Nebraska’s pre-Roe abortion policy?
Prior to 1973, Nebraska banned abortions except to save the life of the pregnant woman.
There was no exception for abortions in cases of rape, incest or fetal abnormalities.
Performing an illegal abortion was punishable by 2-5 years in prison in Nebraska.
How did Nebraska initially react to Roe v. Wade?
With the 1973 Roe v. Wade Supreme Court decision, Nebraska was forced to allow most abortions in the first and second trimester of pregnancy.
However, Nebraska laws continuously challenged the ruling over the years, such as requiring parental consent for minors and banning certain procedures.
Nebraska prohibited abortions after 20 weeks gestation for decades, except in medical emergencies.
What laws took effect after Roe was overturned?
A “trigger law” passed in Nebraska in 2021 almost entirely banned abortion once Roe was overturned by the Supreme Court in June 2022.
The only exception is to prevent the pregnant woman’s death or “serious risk of substantial and irreversible physical impairment.”
There are no exceptions for rape, incest or fatal fetal abnormalities.
Performing an illegal abortion is now a Class II felony punishable by 1-50 years in prison in Nebraska.
How strictly are the new laws being enforced?
Nebraska lawmakers and law enforcement indicated strong intent to fully enforce the near-total abortion ban.
Within weeks of Roe being overturned, subpoenas were issued by state investigators to Planned Parenthood and other clinics demanding medical records.
By late 2022, criminal charges had been filed in the Norfolk case and other illegal abortion investigations statewide.
Women could also potentially be criminally charged for undergoing or assisting with illegal abortions.
What has been the reaction from abortion rights groups?
Abortion rights advocates have strongly condemned both Nebraska’s restrictive abortion laws and the rigorous enforcement efforts by police.
They argue investigating private messages on Facebook to prosecute abortion seeks to punish women who are already in difficult situations.
“The criminalization of pregnancy outcomes is troubling,” said Katherine Goss of the ACLU of Nebraska in a statement, arguing it deprives women of agency over their own healthcare and bodies.
Broader Implications for Privacy and Abortion Rights
Beyond just Facebook’s specific role, the situation in Nebraska raises broader concerns about digital privacy and abortion rights nationwide:
Could this deter women from seeking care online?
Privacy experts say the extensive Facebook search warrants could make women afraid to seek advice or help related to abortion online.
Knowing their private messages could be handed over to law enforcement may discourage them from having conversations about abortion at all.
This “chilling effect” may prevent women from learning about options legally available in other states.
Will tech companies push back on invasive warrants?
Digital rights advocates are pressuring tech firms to increase transparency about law enforcement requests and fight back against warrants that are excessively broad.
“Technology companies have an obligation to protect their users’ data from unjustified access,” said the Electronic Frontier Foundation in a statement about the Nebraska case.
More objections to overbroad warrants could help curb invasive searches that violate user privacy.
Could this case impact abortion prosecutions elsewhere?
The Nebraska case will likely be watched closely by both law enforcement and advocates in states that have restricted abortion post-Roe.
If the extensive Facebook warrant is upheld, it could influence investigation tactics in other abortion cases.
However, if Meta challenges the warrants, it could discourage seeking such broad access to user data during abortion probes.
Will public opinion impact abortion prosecutions?
Polling shows a majority of Americans oppose criminal penalties for women who obtain illegal abortions.
One national survey found 58% believed women should not face jail or prison time for abortion.
If public opinion sours on criminal abortion cases, it could put pressure on prosecutors to be more selective about which violations to charge.
Vocal opposition may also discourage investigations of women directly and influence lawmakers to change penalties.
Conclusion
The revelation that Facebook provided extensive private messages to Nebraska police as part of an illegal abortion investigation raises many troubling questions.
Though Meta argues they were legally compelled to comply, the incredibly broad warrants set an alarming precedent. Handing over huge troves of private data without specificity risks fundamentally violating digital privacy rights.
As abortion prosecutions ramp up nationwide post-Roe, technology companies will face increasing pressure from law enforcement seeking access to sensitive user information. Women’s rights advocates are urging tech firms to guard user data and push back on invasive searches that overreach.
More broadly, the Nebraska case exemplifies the dire collision of digital surveillance and the criminalization of abortion. As police leverage private online data to charge illegal abortions, it may deter women from seeking healthcare information and options online altogether.
Advocates warn that punishing women directly for abortion will cause significant harm and push procedures underground in dangerous ways. With public opinion largely against jail time for illegal abortions, there are calls for more discretion by prosecutors and changes to state laws.
Though the trial is ongoing, Nebraska’s aggressive tactics have already dealt a blow to privacy and reproductive rights. The case will be closely watched as other states grapple with enforcing abortion bans in a digital age.