STORY: "Facebook gave police their private data. Now, this duo face abortion charges," by Reporter Johana Bhuiyan, published by The Guardian, on August 10, 2022.
SUB-HEADING: "Experts say it underscores the importance of encryption and minimizing the amount of user data tech companies can store."
PHOTO CAPTION: "Court documents revealed how tech companies contribute to criminal prosecution of abortions."
GIST: "In the wake of the supreme court’s upheaval of Roe v Wade, tech workers and privacy advocates expressed concerns about how the user data tech companies stored could be used against people seeking abortions.
When a Facebook staffer posed the dilemma to the chief executive, Mark Zuckerberg, asking how the platform would protect the user data of individuals seeking abortion care, Zuckerberg said the company’s ongoing push to encrypt messaging would help protect people from “bad behavior or over-broad requests for information”.
But when local Nebraska police came knocking in June – before Roe v Wade was officially overturned – Facebook handed the user data of a mother and daughter facing criminal charges for allegedly carrying out an illegal abortion. Private messages between the two discussing how to obtain abortion pills were given to police by Facebook, according to the Lincoln Journal Star. The 17-year-old, reports say, was more than 20 weeks pregnant. In Nebraska, abortions are banned after 20 weeks of pregnancy. The teenager is now being tried as an adult.
Court documents filed in June and made public on Tuesday show how tech companies including Facebook contribute to criminal prosecutions of abortion cases. Experts say it also shows the importance of encryption and minimizing the amount of data Facebook stores on its users.
The affidavit in support of the search warrant reveals that a detective with the Norfolk police department asked Facebook for extensive user information for the teen’s mother, Jessica Burgess, dating back to 15 April 2022 including, “profile contact information, wall postings, and friend listing, with Facebook IDs”. The warrant and its details were first published by Motherboard. Authorities also requested all photos Burgess uploaded and was tagged in and her private messages from April to the day the warrant was issued. It’s not clear the extent of the user data Facebook handed over.
The company said the warrants they received in early June did not mention an abortion, but related to a police investigation of a stillborn baby.
“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,” said a Meta spokesman, Dave Arnold.
Brad Ewalt, an attorney for Burgess declined to comment. Emails seeking comment were left for a lawyer listed as a representative for her daughter on Tuesday afternoon.
Limit data stored by tech companies
True end-to-end encryption would have made it impossible for Facebook to hand over that data, says Albert Fox Cahn, the founder of Surveillance Technology Oversight Project. However, as it exists today, Facebook and Instagram messages are not end-to-end encrypted by default. Instead, consumers have to opt in to encrypt their messages. But privacy advocates and experts like Evan Greer, the director of digital rights group Fight for the Future, say most people don’t have it on.
Plans to make end-to-end encryption, a mechanism that prevents anyone except the sender and the recipient from accessing the contents of the message, the default for Facebook and Instagram was pushed back to 2023. The company already uses end-to-end encryption on its WhatsApp messaging service and had planned to extend that to its Messenger and Instagram apps in 2022, but the global head of safety at Meta, Antigone Davis, said in November 2021 that the company was “taking our time to get this right”.
Burgess was charged with two additional felonies after Madison county authorities served the search warrant, according to the Lincoln Journal Star. Documents show Burgess is charged with hiding a dead human body, performing an abortion as a non-licensed doctor and performing an abortion at more than 20 weeks. The latter two are considered felonies in Nebraska.
Privacy advocates argue that one of the only ways tech companies can avoid handing over sensitive abortion related data to law enforcement is to not store it at all. “Expanding end-to-end encryption by default is a part of that, but companies like Facebook also need to stop collecting and retaining so much intimate information about us in the first place,” Greer said.
“Every tech company will tell you the same thing: they comply with law enforcement requests in the jurisdictions where they operate. The only way for companies like Facebook to meaningfully protect people is for them to ensure that they do not have access to user data or communications when a law enforcement agency comes knocking.”
In lieu of that, experts say Facebook could have fought the warrant in court if it chose to.
“Even if they lost, it would make it so slow and expensive for police to target this information that they’d likely seek it less often,” Cahn said. “That seems like the least they can do when their own product flaws are leaving this data vulnerable to police searches in the first place.”
There is some precedent for tech companies fighting warrants in court, said Logan Koepke, a project director at Upturn, a non-profit that pushes for policy change that advances equity and justice in the use of technology.
“In the past we’ve seen companies fight over-broad requests, or fight requests that seek to damage or change a product feature in some way,” he said. Koepke pointed to Facebook’s refusal to comply with a wiretapping request for Messenger calls. A judge ultimately ruled in Facebook’s favor. “Generally speaking though, technology companies using legal tools to resist search warrants or subpoenas for user data, is the definitive exception, not the rule,” he said.
Koepke also points out that even if Facebook fought the warrant or made end-to-end encryption the default, police could use other mechanisms to get a hold of those same messages including obtaining a search warrant to directly search the mother or daughter’s phone.
The bottom line, though, Koepke and others maintain, is tech companies should limit the user data they collect and store.
“Every technology company that collects and retains personal, sensitive data (messages, location history, searches, etc.) will likely at some point be served with search warrants from law enforcement in states and jurisdictions where politicians and law enforcement are seeking to prosecute and criminalize people seeking, offering, or facilitating abortions,” Koepke said.
“As a result, companies should seek to limit how they collect, retain, or otherwise use data that might be used by law enforcement to glean information about someone’s reproductive health.”
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
