Message encryption not used in Nebraska criminal abortion case involving Facebook Messenger subpoena
Most major instant messaging services now enable message encryption by default; Facebook Messenger is the only major hurdle that doesn’t, forcing the user to proactively find and enable it in their menus. The design decision paved the way for a 41-year-old Nebraska woman to be charged with helping her teenage daughter take abortion pills. Both women face charges related to covering up a death after the girl claimed the fetus was stillborn.
The case is unusual in that it happened coincidentally just before the overthrow of Roe v. Wade in late June, with police initially investigating as a false report and mishandling of the remains rather than an illegal abortion. However, following the Roe decision, law enforcement and state prosecutors expanded their powers to lawfully request such information from online platforms.
Facebook opt-in message encryption traps Nebraska abortion seeker
Norfolk resident Jessica Burgess and her daughter Celeste are facing charges primarily based on evidence obtained from their Facebook Messenger conversations. The pair appear to have not enabled optional message encryption, which could have hampered law enforcement efforts. Instead, Facebook received a legal warrant and returned a series of posts in which the mother and daughter (who was 17 at the time) discussed how to use abortion pills correctly.
The girl also made a reference to “burning the evidence” in one of the posts. The abortion took place in April, about two months before Roe’s overthrow, and was not illegal at the time. Police appear to have investigated the case as mishandling of human remains when Dobbs v. Jackson who canceled Roe fell. After this ruling, Nebraska reinstated its pre-Roe state law that prohibits abortions after 20 weeks; Celeste was 23 weeks pregnant when it was done. Madison County District Attorney Joseph Smith later filed illegal abortion charges and is trying the girl as an adult.
It’s unclear whether the state’s abortion law charges will hold up in court, as members of the Supreme Court ruled that retroactively charging someone in this way was a likely violation. the due process clause or the ex post facto clause. However, the mother and daughter still face separate serious charges in the abortion cover-up, which formed the basis of the June 7 warrant that led to their Facebook posts being rotated. Parent company Meta said the warrants were valid at the time under Nebraska state law and that it was legally obligated to cooperate.
In addition to posts dating back to April 15, Nebraska police asked Facebook for images that Jessica Burgess was tagged in, wall posts, her profile information and contact lists of friends. Meta says the warrants came with confidentiality orders and the information he can share is limited.
Should message encryption be the focus or take data out of the hands of big tech?
Over the years, Facebook has argued that it fends off “wrong” or “overbroad” law enforcement requests, but that the ultimate layer of security for users is end-to-end message encryption. which prevents him from seeing what they are typing. However, message encryption continues to be disabled by default, even as it becomes the out-of-the-box setting for most of its major competitors.
This wouldn’t necessarily have changed the outcome of this particular case, as if message encryption had been enabled, the mother and daughter would likely have had their phones and devices checked for messages in the next step. Some privacy advocates argue that big tech shouldn’t retain so much information for so long, especially as laws change to create situations that could be abusive for individuals.
It would, however, mean less data to power the economic engine of companies like Meta, which is likely why Facebook’s message encryption is not only disabled by default, but relatively complicated to access (it has to be enabled manually for each individual conversation and does little to remind users to turn it on each time the service is used).
Although Facebook may not have been legally able to deny the warrants in this case (and although they predate the Roe decision), the obtuse design of Facebook Messenger‘s privacy settings and its apparent lack of resistance to research do not bring anything to the company. Good will. A small movement has emerged on other social media sites following news calling supporters of Roe v. Wade to delete Facebook. Meta responded to the incident by promising a feature called “secure storage” that protects messages already sent with a PIN known only to the user, removing them from company visibility.