An abortion controversy hits Facebook
Platforms find themselves in an impossible situation after Roe. Is there a way forward?
When Roe vs. Wade was overturned, it sparked a fresh conversation about the vast amounts of data collected by a wide variety of companies — and the vanishingly few privacy protections that most Americans have under law. Data privacy, a topic that has often felt abstract in the first few decades of the consumer internet, suddenly has dramatically higher stakes.
It has been clear that we would soon see cases in which companies are subpoenaed for messages, location history, and other data as part of criminal investigations into abortion. On Tuesday, conversation about one such case dominated online discussion.
Jason Koebler and Anna Merlan have the story in Vice:
A 17-year-old girl and her mother have been charged with a series of felonies and misdemeanors after an apparent medication abortion at home in Nebraska. The state’s case relies on evidence from the teenager’s private Facebook messages, obtained directly from Facebook by court order, which show the mother and daughter allegedly bought medication to induce abortion online, and then disposed of the body of the fetus. While the court documents, obtained by Motherboard, allege that the abortion took place before the Supreme Court overturned Roe v Wade in June, they show in shocking detail how abortion could and will be prosecuted in the United States, and how tech companies will be enlisted by law enforcement to help prosecute their cases.
According to court records, Celeste Burgess, 17, and her mother, Jessica Burgess, bought medication called Pregnot designed to end pregnancy. Pregnot is a kit of mifepristone and misoprostol, which is often used to safely end pregnancy in the first trimester. In this case, Burgess was 28-weeks pregnant, which is later in pregnancy than mifepristone and misoprostol are recommended for use. It's also later than Nebraska's 20-week abortion ban (abortion at 28 weeks is legal in about half the country; Nebraska's abortion laws have not changed since Roe v Wade was overturned).
There are a number of important details in those two paragraphs, and in the story that follows, that didn’t make into the viral tweets about the case. One is that, since Nebraska criminalizes abortion care after 20 weeks, this story would have unfolded identically even had Roe not been overturned.
Another is that the case apparently was not initially investigated as an abortion. Police reportedly began investigating after learning that a fetus had been buried; a detective wrote in an affidavit that police suspected that fetus may have been asphyxiated. This is among the reasons why they subpoenaed Facebook to get the Burgess’ messages.
Still, in the conversation I saw today, a consensus emerged: Facebook should not have turned over those messages to police. “It’s nice to see that Facebook always always always does the wrong thing no matter what,” wrote the Atlantic’s Molly Jong-Fast, in a representative tweet.
But of course Facebook complied with law enforcement’s request: all the company would have known at the time is that police were investigating a stillborn fetus, and on what basis could the company credibly reject that request? While tech platforms do sometimes challenge law enforcement, it’s rare: over the past five years, Google complied with 81 to 83 percent of all law enforcement requests.
Would we really want it any different? It strikes me that some of the same people criticizing Facebook today for complying with a police request are the same people who believe Facebook is too big, too powerful, and ought to be restrained by the government. Giving the company selective license to ignore the law would seem short-sighted at best.
Even if Facebook could sniff out all the unjust requests in the thousands sent to it every month, there are costs to continuously flouting the government. Dozens of countries have imposed temporary or permanent bans on Facebook over the years for failing to do the bidding of the government, and you can bet that somewhere a Republican attorney general is salivating over a court battle that would put Facebook, abortion, and his name in the headlines.
At the same time, though, the critics have a point: setting aside the particulars of the Nebraska case, tech companies really do collect too much data; they store it for much longer than is safe for their customers; and they do a poor job of educating those customers about how and when that data can be used against them.
As I wrote here last month: in a world where American law conflicts with human rights, as I believe is the case in states that ban abortion care, a different approach is required. In short: collect less data, delete that data more often, and educate users about the possibility that their data may not be private.
Meta, which owns Facebook, WhatsApp, and Instagram, has taken some positive steps in this direction. For years now, the company has invested heavily in adding end-to-end encryption to its messaging products, often to outrage from law enforcement and regulators. WhatsApp is encrypted by default, and Messenger is expected to be encrypted by default by next year. Encryption is currently available to Messenger users via a feature called “secret messages,” and you can make your messages even more private there by setting them to disappear. (WhatsApp has disappearing messages, too.)
But the Nebraska case above illustrates how encryption alone is not enough. Most users will not be aware whether their chats are encrypted or not — companies typically do little to highlight this visually within their user interfaces. Nor will they be aware of significant loopholes in companies’ encryption; iMessage is encrypted end to end, but law enforcement can force Apple to turn over iCloud passwords, and if you’re one of the hundreds of millions of people who backs up their messages to iCloud police can decrypt them that way.
And that’s just the potentially incriminating data that police can find via messages. Suspicious actors are beginning to seek location data related to abortion access as well, Patience Haggin reports at the Wall Street Journal:
In May, shortly after the draft of the Supreme Court opinion overturning Roe v. Wade became public, location-data specialist Tapestri Inc. received unusual requests from two companies.
Each wanted to purchase mobile-device data that would reveal users who had visited abortion clinics along the Illinois-Missouri border, said Tapestri Chief Executive Walter Harrison. Tapestri declined both requests, saying it doesn’t keep such data. “In our view that’s the best way to do it: just not collecting it at all,” Mr. Harrison said.
That’s good for anyone whose data has unwittingly been collected by Tapestri, whatever Tapestri is. But Haggin reports that in the absence of a national privacy law, companies that monetize location data are doing little more than to adopt voluntary promises not to sell “precise” data about “sensitive” locations, including abortion providers, unless compelled to do so by law enforcement.
As Sara Geoghegan, law fellow at Electronic Privacy Information Center, tells the Journal: “They really shouldn’t be collecting unnecessary data in the first place. And some sort of scout’s honor promise is no substitute for enforced privacy rights or legal limits on data processing.”
This really gets to the heart of it. As Facebook learned today, and many more companies will learn soon, collecting and preserving more data than necessary will implicate platforms in all manner of horrific cases related to matters of bodily autonomy, potentially creating huge reputational risks. The more that messages and location histories are used to prosecute women, the larger those risks will become.
So what to do? Keep pushing forward on encryption. Consider making more messages disappear by default. Allow location history to auto-expire. Add and highlight information about law enforcement requests to privacy pages, terms of service, marketing materials, and release notes.
It won’t be enough; even a national privacy law likely won’t be enough. But it’s a start, and it would serve as a powerful message to users that their very legitimate concerns are being heard. Platforms didn’t create his mess, and they have no easy way out of it. But there are clear and helpful steps they can take, and the time for them to act is now.
Governing
The Department of Justice is preparing to sue Google over its dominance of the online ad market as early as next month. It would be DOJ’s second, concurrent antitrust suit against Google. (Leah Nylen and Gerry Smith / Bloomberg)
A look at the improbable continuation of service in Russia of YouTube, which the Kremlin may have decided is “too popular to block.” (Sam Schechner, Miles Kruppa, and Evan Gershkovich / Wall Street Journal)
Russia has succeeded in spreading propaganda through social media in languages other than English, as American platforms’ moderation enforcement is less aggressive outside their home country. (Steven Lee Myers and Sheera Frenkel / New York Times)
How Russia took over Ukraine’s internet in occupied territories, blocking much of the web and shutting off Ukrainian cellular networks. (Adam Satariano / New York Times)
A former Twitter employee was convicted of spying for Saudi Arabia for funneling the government personal information of platform users who criticized the royal family. Ahmad Abouammo faces 10 to 20 years in prison. (Joel Rosenblatt and Robert Burnson)
The US Treasury sanctioned Ethereum “mixer” Tornado Cash, implicating it in the laundering of more than $455 million in cryptocurrency stolen in the Axie Infinity case, among other crimes. (Chainalysis)
An anonymous user sent Tornado Cash transactions to celebrities including Jimmy Fallon, the clothing brand Puma, and Coinbase CEO Brian Armstrong, potentially implicating them in a “regulatory mess.” (Eli Tan, Oliver Knight, and Nikhilesh De / CoinDesk)
Two years’ worth of Alex Jones’ text messages have been turned over to the committee investigating the January 6 attacks. (Oliver Darcy / CNN)
More popular Twitch streamers are being stalked, swatted, and threatened by their fans, and the platform says there’s little it can do about it. Scary story and more evidence for my growing file of reasons why Twitch streamer seems like a terrible job. (Kellen Browning and Kashmir Hill / New York Times)
Google sued Sonos with a pair of patent-infringement lawsuits, as part of a long-running legal back-and-forth between the two companies. (Jacob Kastrenakes / The Verge)
Syria has recruited travel bloggers and creators to whitewash its regime, and rehabilitate its image, after a brutal civil war. (Sophie Fullerton / Washington Post)
Industry
Google launched a marketing campaign asking people to call out Apple for refusing to make iMessage truly interoperable with Android messages. (Richard Nieva / Forbes)
Roblox stock dropped after it reported declining revenue and slower user growth. (Cecilia D'Anastasio / Bloomberg)
Coinbase lost $1 billion in the last quarter as its revenue declined 64 percent. (Jordan Novet / CNBC)
ByteDance acquired one of China’s largest private hospital chains for $1.5 billion. Obviously we all saw this coming and have no further questions. (Bloomberg)
Soon you will also be able to un-send a message on iOS up to two days after it was sent. (Filipe Espósito / 9to5Mac)
A profile of Meta’s next CFO, Susan Li, who joined the company in 2008 at 19 and has impressed colleagues with “her knack for pairing financial acumen with big-picture business strategy.” (Sylvia Varnham O'Regan / The Information)
Reddit will bring its “community points” feature to the blockchain under a partnership with the Ethereum scaling platform Arbitrum, part of Reddit’s growing interest in decentralization. (Mike Truppa / The Block)
Spotify’s home screen will now separate music and podcasts into separate feeds, starting with Android and coming soon to iOS. (Aisha Malik / TechCrunch)
Snapchat added new parental controls that allow caregivers to see which accounts their child is interacting with, without being able to see the messages themselves. (Sarah Perez / TechCrunch)
Snap is reportedly planning layoffs after its disappointing second-quarter earnings. (Alex Heath / The Verge)
Cameo CEO Steven Galanis had a Bored Ape and other NFTs stolen after falling for a scam. The thief re-sold it for $130,000. (Adi Robertson / The Verge)
In a forthcoming version of iOS, the battery percentage can be made visible in the status bar. Helpful for calibrating your battery anxiety more precisely. (Chance Miller / 9to5Mac)
Those good tweets
Talk to me
Send me tips, comments, questions, and disappearing messages: casey@platformer.news.