Nebraska abortion case shows how Facebook and other tech companies may be weaponized to police women’s bodies

OPINION: The way evidence was obtained against a mother and her teenage daughter should raise serious concerns about privacy when it comes to people's online data and social media activity.

Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.

The Supreme Court justices that struck down Roe v. Wade this summer didn’t make an effort to address the potential collateral damage of their decision, so that reckoning was left for women, their doctors and their families to grapple with. 

Many of abortion rights advocates’ long-held worst fears have come to fruition. In some states, doctors have been hesitant to offer certain care over concerns that it may be criminalized. Miscarriages are now no longer safe from investigations and prying eyes. And children, who survive a sexual assault, are faced with the prospect of forced pregnancy in many regions of this country.

On the heels of the highly publicized case of a 10-year-old Ohio rape victim who had to cross state lines into Indiana to receive an abortion (a procedure the state has outlawed as of last week) comes another disturbing case that highlights the consequences of stripping away a fundamental right to bodily autonomy that women (and their families) have had access to for roughly 50 years.

According to a new report from Vice, a 17-year-old Nebraska girl and her mother are being prosecuted by their state for crimes related to obtaining medication online (called Pregnot) to safely induce an abortion at home. If that were not shocking enough, it was revealed that the evidence against them was obtained via their Facebook accounts due to a court order.

Facebook complied, turning over incriminating private messages that contradicted the girl and his mother’s initial account that she had simply given birth to a stillborn child. The detective investigating the case argued that plumbing their social media accounts was necessary in order to determine whether the fetus was “asphyxiated.” 

The mother and daughter’s private messages appear to confirm that after giving birth to a stillborn child as a result of the abortion medication, they sought to enlist and pay a man to help them dispose of the body. Nebraska currently has a ban on abortion 20 weeks after fertilization (the teen was reportedly 28 weeks pregnant), and the mother and daughter both face potential jail time for a mix of felonies and misdemeanors. The daughter will be tried as an adult, according to the Lincoln Journal Star.

Regardless of what one may think of the morality of their actions and the legality, the way evidence was obtained against them should raise serious concerns about privacy when it comes to people’s online data and social media activity.

Tech companies like Facebook have long tried to portray themselves with a sort of benign objectivity when it comes to the content on the platforms, for better or worse. It is true that social media conversations have inspired positive movements for social change but have also been a hotbed for hate and even in some cases, domestic terrorism.

For example, a new study from the Tech Transparency project shows that there are currently over 100 openly white supremacist pages on Facebook, with more than a third of the hundreds of hate groups identified by the Anti-Defamation League and Southern Poverty Law Center represented. The company also continues to serve ads alongside the likes of the Ku Klux Klan, even though Facebook purported bars posts that attack people because of their race, religion or sexual orientation. 

If Facebook can’t be counted on to crack down on the Klan, how can they be trusted to protect your content or your privacy?

Pro-abortion rights signs are seen during the March for Life 2016, in front of the U.S. Supreme Court in Washington, Jan. 22, 2016. (AP Photo/Alex Brandon, File)

And while social media has been a part of so many Americans’ lives for years, it’s only been recently that people have become more aware of how much their internet footprint can come back to haunt them from a legal perspective.

For its part, Facebook has insisted that it was simply complying with an investigation into a case of a stillborn baby that had been “burned and buried” and not about whether there was a decision to have an abortion (the investigation started before Roe was overturned). And the company’s founder and chief executive, Mark Zuckerberg, has claimed that the social media giant is advocating for more user encryption to prevent “bad behavior or overbroad requests for information.” 

Still, it would be hard for many Americans to take Zuckerberg’s professed concern for his users’ autonomy seriously, given his company’s long history of being unwilling or unable to sufficiently crack down on widespread bullying and disinformation on his platform. There are reportedly plans to make end-to-end encryption, a mechanism that prevents anyone except the sender and the recipient from accessing the contents of a message, the default for Facebook and Instagram, but they have been pushed back to next year.

The internet is overflowing with stories of criminal suspects who have incriminated themselves by posting on social media—take many of the Jan. 6 insurrectionists, for example. And while it might seem counterintuitive, the nature of modern communication via apps and texts inevitably leads to digital paper trails that law enforcement can exploit, again, for better or worse.

Just this last week, right-wing conspiracy theorist and demagogue Alex Jones saw his leaked text messages take center stage in his defamation trial. And multiple allies of President Trump have seen their phones confiscated by the FBI because of presumably incriminating data inside them. Ironically enough, the former president’s lack of personal tech savvy may serve him well because there may be no documented evidence of his alleged criminal exploits.

But where does this leave regular, rank-and-file Americans and especially Black women who use social media apps like Facebook in order to conduct their private affairs? This Nebraska case isn’t about some brazen post shared over Instagram. It was a private conversation between a mother and daughter that has now become fair game in a national struggle over reproductive rights.

Beyond pouring over private conversations, right-wing anti-abortion zealots have threatened to criminalize crossing state lines for abortion care and the safety and security of period-tracking apps have already come under renewed scrutiny. What is being established is not just a nation where many women won’t be able to decide when and how they become pregnant, but they also may not have any conversations pertaining to it that aren’t the purview of law enforcement.

Whether or not this is the kind of society the Supreme Court envisioned with its radical decision to undo 50 years of Roe precedent, this is the world they’ve wrought. And at this point, with social media companies’ hands either tied or being sat on, the American people have little choice but to go offline and get to the polls this fall—to put lawmakers in place that will protect their freedom to plan their own families and to conduct their conversations in private.

Adam Howard is a senior associate producer for “Full Frontal with Samantha Bee” and a producer on the “Full Release with Samantha Bee” podcast. He has written about pop culture, sports and politics for The Daily Beast, Playboy, and NBC News and has recently curated an exhibition of the history of blaxploitation for the Poster House museum in New York City.

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