Fifth Amendment Does Not Extend to ‘Digital Person’

An acrimonious marital breakup has been known to bring out the worst in some people. Those battles increasingly are fought on the technology field, thereby leaving courts to determine complex personal rights issues in the context of grown-ups behaving badly.¹

In another such case, Crocker C. v. Anne R.,² the Supreme Court, Kings County, addressed whether the plaintiff husband’s Fifth Amendment protections, afforded by both the U.S.³ and New York⁴ Constitutions, shielded him from inquiry into his alleged use of spyware and other technologies to wrongfully access the defendant wife’s privileged and confidential communications. In so doing, the court concluded that those constitutional protections did not extend to the plaintiff husband’s “digital person.”⁵

Background

The decision resolved the defendant wife’s order to show cause, which sought an order seizing the plaintiff husband’s computers based on evidence that supported the defendant’s claim that the plaintiff had accessed her cellphone, installed spyware, and monitored her communications for a period of months.

First, the defendant submitted evidence that included the plaintiff husband’s subpoenaed bank records, which revealed that he had made purchases of spyware on Oct. 2, 2014. Furthermore, the defendant’s expert stated that the defendant’s iPhone security had been breached—commonly referred to as “jail breaking”—at approximately 1:32 a.m. on Oct. 6, 2014 and that spyware (consistent with the spyware purchases allegedly made by the plaintiff) had been installed on the defendant’s iPhone approximately 14 minutes later. The defendant asserted that only she, the plaintiff, and the parties’ two young children were in the marital residence on the night her iPhone allegedly had been jail-broken and that she had not jail-broken her iPhone herself.

The defendant contended that the plaintiff’s acts were tantamount to his “bugging” her iPhone and that, as a result, the plaintiff had intercepted and monitored her confidential communications, including those between the defendant and her matrimonial counsel. She said that there were 202 emails between her counsel and her from Oct. 6, 2014, when the plaintiff allegedly jail-broke her iPhone and installed spyware, and Feb. 9, 2015, the date that the defendant claimed that she discovered the intrusion and stopped using the phone to communicate with her attorneys.

In the course of his deposition in the underlying matrimonial action, the plaintiff husband was questioned about his alleged purchases of spyware and whether he had jail-broken the defendant’s iPhone or had installed spyware on it. The defendant said that the plaintiff responded by invoking his Fifth Amendment privilege against self-incrimination approximately 58 times.

On May 15, 2015, the defendant, moving by order to show cause without notice to the plaintiff, requested that the court, among other things, direct the plaintiff to turn over to the defendant’s attorneys, for inspection, forensic imaging, and analysis, all of his computing devices, including, without limitation, his desktop computer, his laptop computer, and any prior computer that the plaintiff may have used that was under his control, as well as his iPad, his cellular telephones, and any hard drives that had been replaced, modified, or refurbished. The court issued an order directing the New York City sheriff to serve a copy of the order to show cause on the plaintiff and directing the plaintiff to turn over all of his computing devices to the sheriff.

The plaintiff subsequently opposed the defendant’s order to show cause to seize his computer devices. He argued that he had invoked his Fifth Amendment privilege with respect to deposition questions about certain alleged purchases of spyware out of “an abundance of caution” because the questions related to his software purchases through an independent corporate entity. The plaintiff asked the court to reject the defendant’s contention that his repeated invocation of the Fifth Amendment at the deposition was somehow an admission that he had used “ill-gotten information” in the parties’ litigation and offered other purported proper sources from which he had obtained his information. However, the plaintiff did not specifically address the defendant’s allegations that he had purchased spyware, had jail-broke the defendant’s iPhone to install spyware, and had used the spyware to monitor her confidential communications. To the contrary, he asserted he could not address those issues after he had invoked the Fifth Amendment privilege during his deposition.

At oral argument, the plaintiff’s counsel argued that there was no basis for the defendant’s counsel to “make an extraordinary jump from a Fifth Amendment invocation by [the plaintiff]” to refuse to respond to questions on whether he had jail-broken and installed spyware on the defendant’s iPhone as justification for the seizure of the plaintiff’s computer devices. The plaintiff argued that the defendant’s application was nothing more than a fishing expedition and delay tactic in the underlying matrimonial dispute.

Additionally, the plaintiff argued that the court was barred from granting the defendant’s application to have an expert appointed to analyze the plaintiff’s computers and cell phone records relating to any confidential communications allegedly intercepted by the plaintiff using the spyware. He argued that his Fifth Amendment rights against self-incrimination extended to his “digital person” and that records stored on his computer and cell phone were extensions of his “digital person.”

The Court’s Decision

The court began its analysis with the established principle that a party to a civil suit may take advantage of the Fifth Amendment where testimony might later subject the witness to criminal prosecution.⁶ The court added, however, that a party who invoked the Fifth Amendment privilege in a civil action might be subject to an adverse inference.⁷

Here, the court said, the plaintiff had invoked his Fifth Amendment privilege against self-incrimination when asked directly about the alleged acts during his deposition, adding that the evidence was “fairly compelling.” The court then ruled that it was “appropriate to find an adverse inference against the plaintiff related to the allegations that he installed spyware on the defendant’s iPhone and used that spyware to monitor defendant’s communications and location.”

The court rejected the plaintiff’s argument that the defendant’s relief should be limited to the court drawing something of a “general” adverse inference against the plaintiff on the issue. The court reasoned that if it were to adopt the plaintiff’s theory, it would allow parties “to shield documents from discovery by claiming the Fifth Amendment privilege.” Moreover, the court continued, there was a public policy issue that could not be ignored: Parties and their attorneys “must continue, even in this digital era, to be able to communicate without fear of interception.”

The court said that, to “simply allow an adverse inference and permit no further inquiry” invited opposing parties into the other attorneys’ law office “through digital means.” The court ruled that it was “imperative” that the defendant know the extent, if any, to which her attorney-client communications had been intercepted by the plaintiff so that she could seek the appropriate remedy, whether it be an application for sanctions, an application to limit the plaintiff’s future discovery, an application to preclude the plaintiff from introducing at trial any evidence or testimony for which he could not establish a legitimate source unrelated to any confidential communications he had obtained by illegitimate means, or any other remedy that might be appropriate once the facts and circumstances were known.

The court reasoned that, if the plaintiff had installed spyware on the defendant’s iPhone and had used it to intercept the defendant’s privileged communications to obtain an advantage in the parties’ litigation by allowing him to obtain information that would be unavailable to him through normal methods of pre-trial discovery, then the remedy available to the defendant had to flow from the plaintiff’s actions. The court decided that, given the allegations and facts presented by the defendant and the plaintiff’s continued assertion of his Fifth Amendment privilege, “the only method available” was to “inventory the documents on the computing devices.”

The ‘Digital Person’ Question

The court then addressed the plaintiff’s argument that any documents or data on his computing devices were extensions of his “digital person” that were covered by his invocation of the Fifth Amendment privilege.

The court was unpersuaded by the plaintiff’s argument that, beyond drawing an adverse inference against him, the defendant should not be permitted to pursue any further discovery that related to the issues surrounding whether he had intercepted her confidential communications. It rejected the plaintiff’s argument that, by asserting the Fifth Amendment during his deposition, he could terminate the defendant’s right to any further inquiry through discovery that he claimed was directed at his “digital person.”

The court explained that the Fifth Amendment privilege could “not be used as a shield and a sword.” Accordingly, the plaintiff could not “control the flow of information” by providing only that information that he wanted the defendant to know while refusing to answer specific questions put to him during the deposition that he did not want to answer. Thus, the court found “no legal basis” for the theory that, by invoking his Fifth Amendment privilege, the plaintiff effectively could bar the defendant from pursuing the discovery she sought through other discovery methods that did not involve the plaintiff’s testimony.

The court also declared that it was “not aware of any legal basis” to deem documents stored on the plaintiff’s computing devices to be part of his so-called “digital person.” Indeed, the court continued, the U.S. Supreme Court has ruled that the Fifth Amendment privilege only extends to “the person asserting the privilege” and, further, “only from compelled self-incrimination.”⁸ Thus, the court decided:

• The plaintiff’s argument that the defendant was barred from any further discovery related to those issues on which he had invoked his Fifth Amendment privilege was “unavailing”;

• The plaintiff’s assertion of his Fifth Amendment privilege did not bar the defendant from pursuing the document discovery she sought, including by an examination of the plaintiff’s computing devices; and

• The plaintiff’s Fifth Amendment privilege against compelled self-incrimination was not violated by the document discovery sought by the defendant.

The court concluded its analysis by ordering the appointment of a referee to consider how the defendant could pursue the document discovery she sought while simultaneously safeguarding the plaintiff’s confidential or privileged communications that might be on those computing devices.

Conclusion

As the concept of a “digital person” evolves, the line between a person’s corporeal and virtual identity increasingly will be blurred. Significant analysis will be needed to determine whether and to what extent personal liberty rights, such as those concerning individual privacy, due process, and the right against self-incrimination, should be extended to “digital persons.”

Endnotes:

1. See, e.g., Shari Claire Lewis, “Circuit Clarifies Time Limit for Computer Hacking Suits,” N.Y.L.J. (Aug. 18, 2015); “Defamation Claims Come of Age on the Internet,” N.Y.L.J. (Feb. 18, 2014).

2. 2015 N.Y. Slip Op. 51365(U) (Sup. Ct. Kings Co. Sep. 18, 2015).

3. The Fifth Amendment of the U.S. Constitution states: “No person … shall be compelled in any criminal case to be a witness against himself.”

4. Article 1 §6 of the New York State Constitution states: “No person … shall … be compelled in any criminal case to be a witness against himself or herself … .”

5. The phrase “digital person” may have several meanings and was not defined in the opinion. However, in the context of this case, it is likely that “digital personal” was meant to denote the way that an Internet user is “reconstituted in databases as a digital person composed of data,” which may not accurately reflect the individual. See Solove, “The Digital Person—Technology and Privacy in the Information Age,” p. 49, NYU Press 2004, available at http://docs.law.gwu.edu/facweb/dsolove/Digital-Person/text.htm.

6. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801 (1977).

7. See, e.g., Kuriansky v. Bed-Stuy Health Care, 135 A.D.2d 160 (2d Dep’t 1988), aff’d 73 N.Y.2d 875.

8. United States v. Doe, 465 U.S. 605 (1984).

Reprinted with permission from the October 20, 2015 issue of the New York Law Journal.  All rights reserved.