Concerned About Abortion Surveillance and Law Enforcement? Time To Treat Encryption Seriously

A mother-daughter arrest in Nebraska was fueled in part by unencrypted Facebook messages police accessed through a warrant.

If you're concerned about police and prosecutors in your state tracking abortions in a post-Dobbs world, developments in a case getting national attention should encourage you to learn whether end-to-end encryption is available in the communication tools you use.

A Nebraska mom, Jessica Burgess, and her then-teenage daughter, Celeste Burgess, have been charged with several crimes for coordinating and executing a plan in April to purchase medication to induce an abortion at home and illegally dispose of the stillborn fetus.

Media coverage suggested that this case is an example of how abortion law enforcement might look after the Supreme Court struck down Roe v. Wade in the June Dobbs v. Jackson Women's Health decision. But to be very clear here, this abortion both preceded the decision and also took place when the daughter was 28 weeks pregnant, running counter to Nebraska's existing abortion laws, which bans them after 22 weeks unless medically necessary to protect the mother's life. The Dobbs decision had no bearing on what happened here.

What's also getting attention, though, is that the evidence Norfolk, Nebraska, police used to bring the charges against the mom and daughter includes private Facebook messages they sent to each other. The police filed a search warrant with Meta, the company that owns Facebook, to provide the contents of these messages and ordered the company to not disclose the existence of these search warrants to others, including the suspects.

Facebook cooperated, which has prompted a handful of people to encourage everybody to delete Facebook or shut down their accounts or otherwise punish the company. It's not as though Facebook could have just declined to cooperate with a search warrant. They could have fought it, but it's not clear, given the circumstances of the case, that they would have won. A spokesperson for Meta told Vice's Motherboard that the warrants they received did not mention abortion and instead appeared to be an investigation of a stillborn baby that was illegally buried and then burned.

It just so happens that it's possible to privately communicate with Facebook's tools in such a way that could prevent the company from sharing those messages with the police. Facebook has implemented end-to-end encryption with some of its private messaging tools. Through end-to-end encryption, only the reader and the recipient can read the contents of messages. Facebook cannot access them or read them and cannot provide them to law enforcement, even if they have a warrant.

Facebook even has helpful instructions on how to set up end-to-end encryption. For starters, you need to use the separate Facebook Messenger app on your smartphone. If you're an old fuddy-duddy like myself who still uses the direct message tool at Facebook.com to send messages to your friends, encryption is not offered on the desktop website itself.

If you are using the phone app for Message, however, you can have what Facebook refers to as "secret conversations" in which users can send messages, images, videos, and voice recordings through this encryption system.

We know that government and law enforcement hate end-to-end encryption and are trying to keep citizens from being able to keep private conversations, well, private. The Department of Justice has been trying to keep Facebook from spreading this encryption to all its platforms. As J.D. Tuccille noted this morning, the U.K. is pushing hard to try to force social media companies to compromise encryption so that they can use it for law enforcement purposes.

But encryption backdoors can be used for so many intrusive surveillance mechanisms and to enforce oppressive laws that can control what we do with our own bodies. People who are concerned about access to abortion in the long-term, particularly in states implementing harsh bans, should be taking a closer look at the communication tools they're using to see what sort of encryption is available.