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Fifth Amendment Does Not Extend To 'Digital Person'

By Shari Claire Lewis

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.

In another such case, Crocker C. v. Anne R., 2015 N.Y. Slip Op. 51365(U) (Sup. Ct. Kings Co. Sep. 18, 2015) , the Supreme Court of New York, Kings County, addressed whether the plaintiff husband's Fifth Amendment protections, afforded by the U.S. Constitution, 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.”'(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://bit.ly/1jLMGhf.

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