Our Right To Privacy Is More Important Than We Realize

How Facebook releasing messages between a mother and daughter ended in a criminal case

In 2019 the Pew Research Center found that a majority of Americans didn’t believe they could get through daily life without companies collecting their data, and that 79% of them were also “concerned about the way their data is being used by companies.”

A recent court case illustrates how Facebook messages can be used to help bring criminal charges against individuals. On July 20, 2023, 19-year-old Celeste Burgess was sentenced to 90 days in jail for illegally concealing human remains.

The case was first widely reported in the media in August of 2022, when headlines blared that a Nebraska teen and her mother were being charged in a case that “involved obtaining their Facebook messages.” Burgess used abortion pills that had been ordered by her mother, Jessica Burgess, to have a medically managed abortion earlier that year.

While investigating what they thought was a case of a stillbirth that mother and daughter had sought to hide, Nebraska police noticed Celeste Burgess checking her Facebook messages to confirm dates she was being asked about. Investigators then served Meta (the parent company of Facebook) for data from the accounts of both Celeste and her mother, where they found messages between the two referring to miscarriage medications and concealing bodily remains.

Much of the controversy of the case centered on the fact that these investigations occurred before Roe v. Wade was struck down on June 24, 2022, and the legality of abortions was called into question. But the case also raises questions about how individuals share conversations (including those that may legally incriminate them) over online and social media platforms.

It could be argued that anyone using any tech or social media apps should be aware that their online conversations aren’t really “private.” Although privacy advocates have been calling for companies like Meta to make end-to-end encryption the standard for their messaging apps, most haven’t done so. Activists at organizations like the Surveillance Technology Oversight Project and Fight for the Future also say that tech companies also need to stop “retaining so much intimate information” that’s shared between its users.

The right to privacy is one that many people feel that they have, but it can be a difficult right to assert. Part of the problem is the complexity of the subject: people expect that their most intimate conversations are inconsequential and would never be kept or used by anyone, but in the era of nearly limitless data storage capabilities, they might be shocked to learn how their every communication is being recorded for long periods of time. Also, although individuals feel they have the right to privacy, many couldn’t tell you the authority that gives them such a right.

One such authority is the United States Constitution. Although the Constitution “does not specifically protect your right to privacy,” it does provide, in the Bill of Rights, some privacy protections. The Fourth Amendment prohibits “unreasonable searches and seizures” by law enforcement; the Fifth Amendment asserts that “your own private property can not be for public use without your consent and/or reasonable compensation.”

In practice, however, it’s safe to assume that individuals will continue to entrust their personal information to online services, whether or not they understand their privacy rights or not.

It’s never safe to assume that you have nothing to hide and therefore have nothing to fear. Scholar Neil Richards has warned about this in several books, and reminds individuals that privacy isn’t dead (even if Mark Zuckerberg tells you that “the age of privacy is over”), and that it’s important for many reasons, including the fact that privacy is about sharing and concealing information, which is one of the most human things we all do. We all have personal secrets, many of which aren’t about illegal behavior or activities, that we still wouldn’t want disclosed in a wider forum.

Richards also warns that, although several companies offer the ability to set more stringent privacy controls on your data, this can also induce a false level of security. Richards notes that “tweaking your privacy settings” on one service might be possible, but so many people use so many devices, apps, and services, that controlling one’s own privacy settings completely is impossible.

Although Celeste Burgess was sentenced to prison time for concealing a body (and not for using medication to cause an abortion), the conversation around her case should lead everyone who uses social media and messaging apps to think carefully about the data they’re sharing and what that means in a culture where the legal and social landscape is constantly changing.