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Nebraska abortion case underscores how evidence from online services is now fair game

AILSA CHANG, HOST:

A prosecutor in Madison County, Neb., has charged a woman with helping her daughter abort a pregnancy illegally. And some of the evidence against her was handed over to police by Facebook.

NPR law enforcement correspondent Martin Kaste has been following this story and joins us now. Hi, Martin.

MARTIN KASTE, BYLINE: Hi, Ailsa.

CHANG: Wait. So is this the first abortion prosecution after the overturning of Roe v. Wade back in June?

KASTE: Well, some have framed it that way, but it's a little murkier than that. What happened is that in April, the police in the town of Norfolk, Neb., investigated two women, Jessica Burgess, 41 years old, and her daughter, Celeste Burgess, who was 17 at the time. They investigated them for mishandling human remains. Police say a fetus that Celeste said was stillborn was illegally disposed of, that it was burned, then buried. And the women were initially charged for that in June. But then police got a warrant to see the women's private Facebook messages. And they say those showed that this was not a miscarriage; that, in fact, Jessica had helped her daughter get pills to perform an illegal abortion.

CHANG: OK. But why would this alleged abortion be illegal if it happened before Roe v. Wade was overturned? I don't get that.

KASTE: Well, police say the pregnancy was 23 weeks along. Nebraska law bans abortion after 20 weeks. Now, that wouldn't have been enforceable under Roe v. Wade. Now it would be, but legal experts doubt it could be enforced for an abortion done weeks before the Supreme Court's ruling. Even Justice Brett Kavanaugh said so in his concurring opinion. So you're right that these felony abortion charges may not very well hold up in court.

CHANG: OK. Well, let's turn to these Facebook messages. I understand police got them with a warrant - right? - while investigating, as you say, the mishandling of human remains. How exactly did these messages lead to these illegal abortion charges?

KASTE: Well, these are very private conversations between a mother and a daughter. They're pretty frank. They talk about when to take the pills. Celeste writes, I will finally be able to wear jeans. We should say that we tried to reach the Burgesses and their lawyers by phone today without success. But the two women have pleaded not guilty.

CHANG: And how is Facebook explaining why they gave police these private messages?

KASTE: Well, they wouldn't talk to us about this - they wouldn't talk about this on the record. They rarely do in cases like this. But their parent company, Meta, put out a statement and it says police gave them, quote, "valid legal warrants." And they say the warrants did not mention abortion. But what they don't say is whether they would have handled this any differently if they had known it was an abortion investigation.

I talked about this with Andrew Crocker. He's a senior staff attorney with the Electronic Frontier Foundation. And he says if a warrant is legal, a tech company like Facebook is going to comply.

ANDREW CROCKER: Every day across the country, police get access to private messages. And this is an extremely routine part of everyday criminal investigations. I think a lot of people are waking up to it because of the far-ranging nature of how we expect abortion investigations are going to go. And it's going to touch people's lives, many more people's lives, in a way that maybe they hadn't thought about in the past.

CHANG: OK. Well, maybe this is routine, but what do you think, Martin? Do you have any sense of whether companies like Meta are going to be feeling a lot of public pressure not to cooperate with abortion investigations?

KASTE: Well, these data companies have a longstanding policy of complying with warrants that are valid in the jurisdictions that they're coming from. And even Andrew Crocker at the EFF says it's probably not a great idea if they're going to start picking and choosing which kinds of criminal investigations they're willing to cooperate with. What he would like to see, though, is that companies like Meta might be willing to start keeping less information about people on hand so it's not available when law enforcement comes calling. And, of course, people do have the option of shifting their conversations to other platforms like Signal, where everything is encrypted end to end. And that company doesn't have - couldn't hand over your messages even if it wanted to.

CHANG: That is an option. All right, that is NPR law enforcement correspondent Martin Kaste. Thank you, Martin.

KASTE: You're welcome. Transcript provided by NPR, Copyright NPR.

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Martin Kaste is a correspondent on NPR's National Desk. He covers law enforcement and privacy. He has been focused on police and use of force since before the 2014 protests in Ferguson, and that coverage led to the creation of NPR's Criminal Justice Collaborative.