Blog
By Will Simpson, Class of 2025
Amidst the fallout of the Supreme Court’s decision on June 24, 2022, to overturn the cornerstone abortion case of 1973, Roe v. Wade, a privacy issue has surfaced: the extent to which digital data can be used against us to prosecute novel forms of criminalized behaviors. To make matters worse, tech giants such as Facebook and Google—who collect and largely control this data—are legally obligated to assist governments with this invasive practice.
Why should we care? While the Fourth Amendment helps protect Americans against unreasonable searches and seizures by the government, private companies are not restricted from archiving our digital data. As a result, the details of our online lives are preserved for potential access by government warrants.
This matter comes vividly to light in the ongoing Nebraska case, State v. Burgess. Pursuant to a Madison County search warrant, Facebook disclosed troves of private data that the social media platform had amassed for Jessica Burgess and her eighteen-year-old daughter Celeste, (who was pregnant at the time) including direct messages between the two. According to court documents, these messages concern “the purchase of” and “the use of” medications that would induce a miscarriage.
Due to this disclosure, Jessica Burgess is now charged with two felonies under a 2010 Nebraska law outlawing most abortions after 20 weeks according to court records.
In early June, the Burgesses were each charged with a single felony of concealing or abandoning a body, and 2 misdemeanors: concealing the death of another person and false reporting. Although the alleged crimes took place when she was seventeen, Celeste Burgess is being tried as an adult at the prosecutor’s request.
The Burgesses initially claimed that Celeste experienced a miscarriage on April 22, but after the recovery of the Facebook messages, police decided that the pregnancy was aborted, not miscarried.
Additionally, the messages were used as the primary basis for a second search warrant, in which 13 laptops and smartphones were seized from the Burgesses’ home (totaling 24 gigabytes of data including images, messages, and web histories from their phones).
When asked by local media Facebook stated that its officials “always scrutinize every government request [they] receive to make sure it is legally valid.” Even so, Facebook reports that in 2021, the company supplied some amount of personal data to at least 88% of government requests.
Facebook’s parent company, Meta, responded to the Nebraska case as follows: “[w]e 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.”
While Facebook and Meta are quick to emphasize their autonomy from the Dobbs decision, they offer no insight as to how Facebook would have responded to the search warrant post-Dobbs. Even more chilling, they fail to address the fact that Facebook’s ubiquitous data-collection practices have ostensibly created a potential for widespread government surveillance.
To this latter notion, privacy experts are not blind. As Andrew Crocker of the Electronic Frontier Foundation explains, “every day, across the country, police get access to private messages between people on Facebook, Instagram, [and] any social media or messaging service you can think of.”
“[S]urveillance […] is complicated,” writes Neil Richards in his book Why Privacy Matters.[1]“It’s traditionally thought of as a government activity, but it’s also widely practiced by the private sector, with at best a blurry and permeable barrier separating the two.”[2]
As Richards highlights, “American law already restricts these activities in some areas,” such as “the Fourth Amendment’s warrant restriction and in the constitutional right of information privacy recognized in Whalen v. Roe (1977), which envisions constitutional limits on the government’s ability to disclose sensitive data about its citizens, such as their medical records.”[3]
But these constitutional rights do nothing to place restrictions on private actors. Companies like Facebook and Google are free to collect all the data they desire, so long as they disclose such practices in lengthy and convoluted privacy policies. What’s more, governments have an incentive to permit tech companies in doing so. [4]
One possible solution to this vicious cycle may be to adopt data minimization requirements. Indeed, “at the most basic level, data that is never collected cannot menace […] privacy,”[5] but it is not possible or desirable to disallow all data collection. Accordingly, minimizing the preservation of data might serve as a workable compromise.
In any event, Facebook’s collection and preservation of personal data provide an unprecedented repository from which the government can engage in problematic surveillance of citizens. Certainly, it is in the best interest of our democratic values – and our democracy itself – to corral this insidious practice through prompt legislative action.
[1] Neil Richards, Why Privacy Matters 162 (2022).
[2] See Id.
[3] Id. at 163.
[4] Id.
[5] Id. at 162.
