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Is It Safe to Talk About Abortion on Facebook? Arrest of Nebraska Mom and Teen Raises Questions

Experts say the short answer is no—the longer answer is absolutely not.

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Photo: AP

On Monday, a Nebraska mother and her 17-year-old daughter were arrested and now face criminal charges for allegedly ending the daughter’s pregnancy with abortion pills. With each new detail, the story becomes more alarming: As Jezebel’s Susan Rinkunas has reported, court documents show the teen was reported to police by her friend, and police obtained the teen’s Facebook text conversations about the abortion by serving Meta with a warrant.

In the face of backlash, Meta responded on Tuesday evening with a confusing statement claiming that its involvement with police had been misreported. Meta says the warrants it received “did not mention abortion at all,” and “court documents indicate that police were at that time investigating the alleged illegal burning and burial of a stillborn infant.”

What, exactly, was “misreported” isn’t clear, but one thing is: The exclusion of the word “abortion” in warrants served by police isn’t actually that important. Any miscarriage, stillbirth, or pregnancy loss could technically have been self-induced through abortion pills. Because a medication abortion can’t be distinguished from a miscarriage, in states that have banned abortion, miscarriage is effectively banned too. And it sure seems like Meta—the parent company controlling popular messaging apps like Facebook/Facebook Messenger, Instagram, and Whatsapp—clearly has no qualms with helping law enforcement build cases against pregnant people.

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In an email to Jezebel, a spokesperson for Meta highlighted several previous statements from the company, which claim that “each and every request” it receives from law enforcement is “carefully reviewed for legal sufficiency,” and some can be rejected for being “overly broad or vague.” The email also asserts that when Meta complies with warrants, it “only produce[s] information that is narrowly tailored to that request.” If the company determines a request “deficient or overly broad,” Meta claims it “will fight in court, if necessary.”

None of this is particularly reassuring to Cynthia Conti-Cook, technology fellow at the Ford Foundation who focuses on gender, racial and ethnic justice, and wrote “Surveilling the Digital Abortion Diary.” Conti-Cook says it doesn’t make a difference whether warrants explicitly refer to abortion. “It’s been documented over many years how it’s not just strict legal statutes that have the word ‘abortion’ in them that are used to punish people for their reproductive choices,” she told Jezebel. “It’s very clear that going forward, Meta and other tech companies can’t hide behind the omission of the word to claim they didn’t know that user information they’re handing to police would be used in investigations for abortion.”

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Image for article titled Is It Safe to Talk About Abortion on Facebook? Arrest of Nebraska Mom and Teen Raises Questions
Photo: AP

Instead of vague, unhelpful reassurances, companies like Meta should “demand detailed affidavits that have factual allegations,” she says. And “when they have those factual allegations, they need to scrutinize them beyond keyword search for abortion to determine whether the investigation is for any behavior related to criminalizing health care, whether abortion or gender-affirming care.

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“Then, they need to create standards for when they withhold that information if it is related to criminalizing health care,” Conti-Cook told Jezebel. Meta, she points out, has criticized the overturning of Roe v. Wade—now it needs to “put its money where its mouth is.”

Cases of pregnancy outcomes and abortion being criminalized are typically first brought to law enforcement’s attention by doctors and acquaintances rather than digital surveillance. But nonetheless, all the more so in post-Roe America, messages and online activities play a major role in helping police and prosecutors build cases against pregnant people. For example, long before Meta turned over the Nebraska teen’s texts, in 2018, a Mississippi woman was convicted of manslaughter for experiencing a stillbirth and her previous online searches for abortion pills were entered as criminal evidence against her. Prosecutors used the same strategy against Purvi Patel, who allegedly self-managed an abortion in 2013. People of color are often at greater risk of pregnancy-related criminalization.

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Location data placing people at abortion clinics or even visits to seemingly unrelated facilities like rehabilitation centers for substance use while pregnant can also be weaponized against pregnant people. Google said it received almost 12,000 geo-fence warrants from police in 2020 alone. It also continues to advertise and include anti-abortion crisis pregnancy centers in search results for abortion, though their websites collect pregnant people’s data and in some cases have relationships with state governments.

To Conti-Cook’s point, few states have passed or even seriously considered legislation to explicitly criminalize abortion patients rather than just abortion providers. But pregnancy outcomes have always been policed, typically though misapplication of “fetal homicide” laws from prosecutors, or—as in the case of the Nebraska mother and daughter—varying criminal violations like “gross abuse of a corpse” and improperly disposing of fetal remains.

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Kat Green, managing director of Abortion Access Front, says there are vitally important ways to protect ourselves from building digital trails that can be used as evidence against us. Being safe can be as simple as practicing discretion with what we share about ourselves online: “A large part of the vulnerability to law enforcement is from people disclosing too much information on platforms that could get subpoenaed easily.” Green says people should also secure their phones and devices with more than fingerprint and face scans, since police don’t need a warrant to unlock these devices. Using secure, encrypted platforms like Signal and Protonmail is also key.

According to Conti-Cook, we should all start casually using Signal and Protonmail, so we don’t have to install and familiarize ourselves with these apps for the first time when emergency strikes. It’s also essential to know our rights against self-incrimination. “Devices like phones, computers, are completely unregulated, used in a really extensive way by law enforcement—and the majority of people hand their devices over voluntarily without knowing they can refuse, giving police all kinds of access to searches, messages.”

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“We’ve seen so many things escalate in the last few years that we didn’t think would happen this fast,” Green said. “We all need to be prepared. It’s important for people to just be conscientious about what they’re putting out on any platform.”

Meta’s role in the Nebraska mom and daughter’s arrest isn’t surprising. This, after all, is a company that has been exposed for sharing abortion seekers’ data with CPCs, prohibiting employees from talking about abortion on the company’s internal management system, and censoring information about abortion pills while allowing dangerous anti-abortion disinformation. But this most recent development is chilling, nonetheless—and a stark indictment of how much times have changed and arguably become more dangerous between before Roe and now.