Privacy, Discovery and Social Media

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This post examines an opinion the New York Supreme Court – Richmond County issued in a civil case:  Fawcett v. Altieri, 38 Misc.3d 1022, 960 N.Y.S.2d 592 (New York Supreme Court - Richmond County 2013).  The case involves a suit to

recover for personal injuries allegedly sustained by the plaintiff, John Fawcett, Jr., a high school student during an altercation with the defendant, Nicholas Altieri, another high school student, at a tennis match at St. Joseph By the Sea High School, in Staten Island, New York.

Fawcett v. Altieri, supra.  The defendants are Nicholas Altieri, his parents Gerald L. and Laura M. Altieri and St. Joseph by the Sea High School.  Fawcett v. Altieri, supra. 

The opinion notes that the plaintiff’s complaint “sets forth causes of action against the defendants for assault, battery, negligence and loss of services” and alleges that John Fawcett, Jr. “sustained an injury to his right eye” in the altercation alleged in the complaint.  Fawcett v. Altieri, supra.  In this opinion, the court is ruling on a dispute about discovery, which, as Wikipedia explains, is the

pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. 

You can, if you are interested, find a summary of New York discovery law here.

The issue the court is dealing with arose when the defendants moved “to compel the production of the social media files of the plaintiff, John Fawcett, Jr.” and Fawcett, the plaintiff, “cross-move[d] for a protective order preventing the production of his social media files.”  Fawcett v. Altieri, supra.  More precisely, the defendants demanded

`. . . authorizations to permit the defendants to obtain full access to and copies of Plaintiff's current and historical records and/or information and photographs on Plaintiff's social media website pages, including but not limited to Facebook, MySpace, Friendster, Flickr, and any other social media websites.’

Defendants contend that the plaintiff's social media accounts are not publically viewable and they have been made private with no information available for public consumption. It is unclear when the plaintiff made his social media accounts private.

Fawcett v. Altieri, supra (quoting Defendants’ motion).

The Supreme Court began its opinion by noting that the parties’ motions required it to

evaluate the relevance of social media accounts in the pre-trial discovery phase of a civil action alleging personal injuries. While social media web sites may be a relatively new phenomenon, the liberal interpretation of the words “material and necessary” in New York Civil Practice Law and Rules [CPLR] § 3101(a) remains applicable.

Fawcett v. Altieri, supra. 

CPLR § 3101(a) states that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by various enumerated categories of parties to the suit, witnesses and others with material evidence, experts, etc.  In the rest of the passage quoted above, the Supreme Court explained that the

liberal interpretation of the words `material and necessary’ require disclosure, upon request, of any facts bearing on the controversy that will assist in the preparation for trial by sharpening the issues and reducing delay and prolixity. A party's right to discovery is not unlimited, however, and may be curtailed when it becomes an unreasonable annoyance and tends to harass and overburden the other party. . .

Fawcett v. Altieri, supra. 

The court also noted that it

is without dispute that plaintiffs, who place their physical condition in controversy may not shield from disclosure material, which is necessary for the defense of the action  It is equally well accepted that discovery is permitted with respect to not only materials having to do with liability, but also to damages as well.

Fawcett v. Altieri, supra. 

The Supreme Court then noted that, as to the law specifically applicable to the issue raised by this case, a survey of relevant New York cases

dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts. 

This inquiry requires a determination by the court as to whether the content contained on/in a social media account is `material and necessary;’ and then a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights.

Fawcett v. Altieri, supra. 

The court began with the issue of whether the information was “material and necessary”:

Setting aside the fact that John Fawcett, Jr. turned eighteen years old, the plaintiff submits the affidavit of his mother Gina Fawcett to support his cross-motion. In her affidavit she states that her son, `. . . stated . . . that he has no specific memory of using, discussing this attack, or his injury using social media.’ 

Furthermore, plaintiff's counsel argues that access to the plaintiff's social media accounts sought by the defendants are not relevant to mount a defense against an allegation of civil assault battery or negligence.

However, to accept such an argument would ignore the defendants' right to seek discovery relating to the damages John Fawcett, Jr. sustained as a result of this altercation. Plaintiff's bill of particulars states that the injuries he sustained as a result of this incident will continue to affect him socially, educationally, economically, and in the way he pursues recreation into the future.

Fawcett v. Altieri, supra. 

The Supreme Court noted that the New York Supreme Court –Appellate Division

allows for broad discovery on the issue of damages where a plaintiff states a general loss of the enjoyment of life due to injuries sustained as a result of an accident. . . . However, at this early stage in litigation it is unclear as to whether this information will yield `material and necessary’ information, or . . . is merely a fishing expedition as the plaintiff suggests.

Fawcett v. Altieri, supra. 

It then explained that

[s]ocial media web sites, such as Facebook and Twitter, exist to allow individuals to interact with `real world’ friends, relatives and those individuals sharing common interests that may be as close as your own town, or as far away as a distant continent. 

The court takes judicial notice that subscribers to these sites share their political views, their vacation pictures, and various other thoughts and concerns that subscribers deem fit to broadcast to those viewing on the internet.

Whether these broadcasts take the form of `tweets,’ or postings to a user's `wall,’ the intent of the users is to disseminate this information. Judge Matthew Sciarrino pointed out in his decision concerning an `Occupy Wall Street’ protestor charged in the Criminal Court of New York County that, `[i]f you post a tweet, just like you scream it out the window, there is no reasonable expectation of privacy.’

Fawcett v. Altieri, supra (quoting People v. Harris, 36 Misc.3d 868, 949 N.Y.S.2d 590 (Criminal Court, City of New York, New York County 2012)).

The Supreme Court pointed out that “[a]t the end of 2009 Facebook reset user privacy settings to default all profiles to public from private”, but that “these privacy settings did not prevent the president of the Queer Chorus at the University of Texas to add these two students to a Facebook discussion group which `outed’ them to all of their Facebook friends, regardless of the pre-set privacy settings.” Fawcett v. Altieri, supra. 

Having made that observation, the court explained that the New York Supreme Court – Appellate Division held in Patterson v. Turner Construction Company, 88 A.D.3d 617, 931 N.Y.S.2d 311 (2011) that materials posted on a Facebook page would not be

shielded from discovery in a civil matter `. . . merely because plaintiff used the service's privacy settings to restrict access . . .’ if the material is relevant to the litigation. These materials may be subject to production just as material from a personal diary may be discoverable.

While the ultimate privacy and subsequent disclosure of social media postings are disputable, the facts in this case are not developed to either compel or preclude their discovery. There must be a clear factual predicate in order to compel the production of social media records from the defendants or authorizations for the production of that material from certain social media providers.

Consequently, on the facts before this court depositions must be conducted before one can properly determine whether the plaintiff should be compelled to produce social media records; and conversely, whether the defendants should be precluded from accessing this information.

Fawcett v. Altieri, supra. 

The Supreme Court concluded by noting that information posted on social media

accounts are freely discoverable and do not require court orders to disclose them. However, this court will not go so far as to hold that all social media records are material and necessary based solely on the fact that many people avail themselves to these social media sites. . . .

[T]o obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand. 

The courts should not accommodate blanket searches for any kind of information or photos to impeach a person's character, which may be embarrassing, but are irrelevant to the facts of the case at hand.

Fawcett v. Altieri, supra.  It therefore denied the defendants’ motion to compel the production of the plaintiff’s “social media files”.  Fawcett v. Altieri, supra. 

Harassment, Emails and the Passionate Fan

In 2011, Paul Michael Glaser obtained a six-month civil harassment restraining order under California Code of Civil Procedure § 527.6 against Pamela Meserve. Glaser v. Meserve, 2013 WL 1460339 (California Court of Appeals 2013). When that order expired and Meserve “resumed her harassment,” he “obtained a three-year injunction” against her, after which Meserve “appealed the second order.  Glaser v. Meserve, supra.

According to this opinion, Glaser “was an actor on the 1970's television show Starsky and Hutch”, after which “he became a director and later an author.” Glaser v. Meserve, supra. At some point in 2000, Meserve approached Glaser to see if he was interested

in a Web site she had developed for him, and he agreed she could maintain it. Over time, he communicated with her about the Web site, seeking her assistance in handling fan mail. She also began sending gifts to Glaser. [Meserve] was living in the Boston area and Glaser thanked her for the gifts by telephone, thinking of her as a passionate fan.

In 2008, [Meserve] flew to London to see Glaser in a play and attended over 20 performances. Also in 2008, [she] moved from Boston to the same Venice neighborhood to which Glaser had recently relocated. She constantly appeared in front of his apartment, and though Glaser's children questioned her behavior, Glaser tried to remain friendly with her.

At about the same time, Glaser decided to self-publish his first book, Chrystallia, and asked [Meserve] for her assistance. As early as 2007, [she] had been providing Glaser with editorial comments on the book. Glaser offered to compensate [Meserve] for her time on publishing, and according to [her], she was to receive five percent of the royalties generated from book sales. 

According to Glaser, after working with [Meserve] for approximately six to nine months, he realized his self-publishing efforts were not going to work. He retained professionals, who after two meetings with [her] said they would be unable to work with her, as her behavior disturbed them. Glaser terminated her, but told her he would compensate her for her time once the book made a profit.

[Meserve] continued to contact Glaser and his friends and colleagues, and ultimately moved in with [his] next-door neighbor. She would sit on the stairs opposite Glaser's kitchen door while working on her computer. And at some point she lived only in her car, parked near Glaser's home.

By early 2011, Glaser's e-mail communications to [Meserve] were focused on efforts to get control of the Web sites that she had been managing, offering to pay her for the rights, while [her] e-mails were focused on efforts to mend the parties' relationship.

Glaser v. Meserve, supra.

Glaser applied for the harassment restraining order on April 15, 2011, on the grounds that Meserve “had been continuously lurking near his home, following him and excessively e-mailing him.” Glaser v. Meserve, supra. In a letter attached as support for the order, Glaser said Meserve “`exhibits both a rational and very irrational side and has continued to impose herself on me and my life despite my requests for her to desist.’” Glaser v. Meserve, supra.  Meserve “objected to the application and wrote a letter to the court in opposition, attaching two letters of recommendation from Glaser and a number of e-mail exchanges between” them.  Glaser v. Meserve, supra.

At a May 5, 2011 hearing on his application for the order, Glaser testified that after he

terminated her, she kept showing up in his neighborhood and approaching visitors to his home, sometimes leaving notes on their cars and sometimes pleading her case in person. He was also concerned that [she] had moved into the apartment just behind his, despite his requests to stay away. He stated that although [Meserve] had not made any threats that would lead him to fear for his physical safety, he did fear for his safety as a result of her irrational behavior.

Glaser v. Meserve, supra.  

The judge issued a restraining order that was effective for six months and required Meserve “to refrain from harassing, threatening, following or stalking Glaser, and directed that she not contact him by telephone, message, mail or e-mail.” Glaser v. Meserve, supra. It also required that she “stay at least 20 feet away from [him] and his home and vehicle” and barred her from owning, possessing or purchasing a firearm, and requiring her to turn in any firearm in her possession or control.” Glaser v. Meserve, supra.   Meserve did not appeal the order. Glaser v. Meserve, supra.

Glaser applied for a second restraining order on January 25, 2012. Glaser v. Meserve, supra. In his application, he said that Meserve had resumed

calling him and e-mailing him constantly; that she walked where he was walking, sometimes circling back just to interact with him; and that she blogged on his Facebook and Twitter accounts, representing herself as his `liaison.’ He attached some of her recent e-mails. He sought a three-year restraining order and asked that [she] be ordered to keep at least 100 yards away from him, his family and certain business colleagues.

Glaser v. Meserve, supra. This time, Meserve objected to the order and “denied there was a factual basis for it.”  Glaser v. Meserve, supra.

Meserve and Glaser testified at a February 8, 2012 hearing on the application. Glaser v. Meserve, supra.  “At that point,” she still lived in Glaser's neighborhood “in an apartment about 400 yards from his apartment.” Glaser v. Meserve, supra. Glaser testified that while he asked Meserve to leave him alone, “`she continues to call me, e-mail me, repeating, repeating constantly to read the e-mails. It's kind of bizarre. It's like, you know, “I'll never stop. I'll never stop e-mailing you no matter what. And I will do this because this is my calling. This is what I'm about.”’” Glaser v. Meserve, supra. Meserve “offered various explanations for each time she contacted or attempted to contact Glaser and his family and friends” and “denied she was pursuing him.”  Glaser v. Meserve, supra.

At the end of the hearing, the judge “issued a three-year restraining order” commenting that Meserve “had contacted Glaser excessively, even after he asked her not to,” and said he “understood why Glaser was concerned.” Glaser v. Meserve, supra. The judge told Meserve,

`[e]ven though you yourself may not appreciate how your conduct appears to others, I will tell you from an objective point of view, it appears excessive. And I am concerned with the fact that you specifically started when the first restraining order ended and you stopped as soon as you were served with this. So even though you say you can control yourself, I'm not confident that you can.’

Glaser v. Meserve, supra.  The order prevented Meserve “from contacting Glaser directly or indirectly, either in person, by telephone, by any electronic communication or through social media.”  Glaser v. Meserve, supra. 

In appealing the second order, Meserve argued that it “was not supported by substantial evidence.”  Glaser v. Meserve, supra.  The Court of Appeals began its analysis of her argument by noting that California Code of Civil Procedure § 527.6

was designed to supplement existing law by providing an expedited procedure to harassment victims and was `enacted to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.’” Grant v. Clampitt, 56 Cal.App.4th 586, 65 Cal.Rptr.2d 727 (California Court of Appeals 1997).

Glaser v. Meserve, supra. 

The court also explained that California Code of Civil Procedure § 527.6(b)(3) defines

`harassment’ as `unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a person that seriously alarms, annoys, or harasses the person and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress. . . .’ 

Subdivision (b)(1) defines `course of conduct’ as `a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, . . . or sending harassing correspondence to an individual by any means. . . .’ (California Code of Civil Procedure § 527.6(b)(1))

Glaser v. Meserve, supra. 

The court then addressed the issues raised in this appeal, noting, first that to support the

“issuance of an injunction” under these standards, Glaser “was required to show that [Meserve] had engaged in a course of conduct constituting harassment that would both cause a reasonable person and actually caused him to suffer substantial emotional distress.”  Glaser v. Meserve, supra. 

It found, first, that the evidence showed Meserve engaged in a course of conduct that

both annoyed and harassed Glaser, and served no legitimate purpose. Even assuming [Meserve] had a legitimate basis to contact Glaser while she was working with him on his book, . . . by January 2011 the parties no longer had a working relationship. Nonetheless, [she] continued to e-mail and call Glaser, to walk by his home and to approach him in person, even though he told her he wanted nothing to do with her. There was sufficient evidence to show that her contact had no legitimate purpose.

For example, in a January 2011 e-mail [Meserve] wrote: `I am NOT letting GO. I AM NOT forget [t]ing and I will not let YOU forget either . . . no sir . . . no more BS from you. I LOVED YOU. It is not a terrible thing!’ In April 2011 [she] wrote: “I loved you Paul . . . I trusted and believed everything, every word you shared and promised me . . . I can't let go or forget that. Why can't you understand this? I need to know why!’

And after the first restraining order expired, [Meserve] wrote in a January 2012 e-mail, `Paul . . . don't you think that maybe fate brought us together? Or maybe in our next life, when we meet again, we will really know that the reason we ARE here IS to help each other . . . to appreciate the gift of each other, what we can learn from each other and teach [each] other with open kindness, understanding and compassion. . . .’

Glaser v. Meserve, supra. 

The Court of Appeals also found that the evidence was sufficient to show that Meserve’s

harassment would cause a reasonable person to suffer substantial emotional distress. [Her] conduct was akin to that of the defendant in R.D. v. P.M., 202 Cal.App.4th 181, 135 Cal.Rptr.3d 791 (California Court of Appeals 2011). There, the court found substantial evidence supported the conclusion that a reasonable person would have suffered substantial emotional distress as a result of the defendant's unwanted contacts with the plaintiff spanning almost one year. . . .

The defendant . . . engaged in conduct including confronting the plaintiff at a local market, posting negative consumer reviews on the Internet and distributing flyers with disparaging messages about the plaintiff, and engaging in volunteer activities at the plaintiff's children's schools. . . . 

Here, beyond her unwanted contact with Glaser, [Meserve] similarly blogged on Glaser's Facebook and Twitter Web sites, contacted his children and volunteered for a foundation he founded on behalf of his deceased wife. Correspondingly, this evidence supported the conclusion that Glaser had suffered substantial emotional distress. . . .

Glaser v. Meserve, supra. 

Meserve then claimed “there was insufficient evidence to show that her actions caused substantial emotional distress, either objectively or subjectively.”  Glaser v. Meserve, supra.  The court explained that “emotional distress” is “generally understood” to

include, among other emotions, fright, nervousness, anxiety, humiliation and worry. . . . `Section 527.6 does not define the phrase ‘substantial emotional distress.’ However, in the analogous context of the tort of intentional infliction of emotional distress, the similar phrase ‘severe emotional distress' means highly unpleasant mental suffering or anguish ‘from socially unacceptable conduct’ [citation], which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable [person] in a civilized society should be expected to endure it.’ (Schild v. Rubin, 232 Cal.App.3d 755, 283 Cal.Rptr. 533 (California Court of Appeals 1999)).

Glaser v. Meserve, supra. 

The court also noted that, in entering the restraining order, the trial judge 

explained to [Meserve] that she had `really gone overboard and beyond the pale. And I understand why Mr. Glaser is concerned.’ Substantial evidence supported the trial court's conclusion that Glaser should not have been expected to endure [Meserve’s] excessive and accusatory e-mails, unwanted personal contact and irrational behavior.

Glaser v. Meserve, supra. 

And the Court of Appeals explained that “substantial evidence” also showed that Glaser

suffered substantial emotional distress. Evidence satisfying the subjective prong of § 527.6 may be circumstantial. . . . Ensworth v. Mullvain, 224 Cal.App.3d 1105, 274 Cal.Rptr. 447 (California Court of Appeals 1990). . . . [T]he Ensworth court rejected the proposition that direct testimony is required to establish that a plaintiff actually suffered substantial emotional distress; it found sufficient the plaintiff's testimony that the defendant followed and spied on her, repeatedly drove around her house, made numerous phone calls and sent threatening letters, and contacted other professionals in the community in an effort to harm the plaintiff's reputation. Ensworth v. Mullvain, supra.

Here, in addition to testifying about [Meserve’s] conduct, Glaser testified at the first hearing that he had gotten to the point where he could not control or manage [her] behavior and that, because of her irrational behavior, `I fear for my safety.’ At the second hearing, he reiterated that he did not believe [she] was able to stop herself from contacting him, and he felt as if he were being pursued.

He worried that if [Meserve] was incessantly e-mailing, calling and approaching him, he did not know whether she was capable of more. Any further evidence on the point would have been cumulative. . . .

Glaser v. Meserve, supra. 

The Court of Appeals therefore held that the order was supported by substantial evidence.  Glaser v. Meserve, supra.  It also found that Glaser had shown there was “sufficient evidence of a threat of continued harassing harm” to support to entry of another restraining order.  Glaser v. Meserve, supra.  It noted, among other things, that the trial judge “repeatedly pointed out that [Meserve] had demonstrated she was unable to control herself in the absence of a court order.”  Glaser v. Meserve, supra. 

For these and other reasons, the Court of Appeals affirmed entry of the second restraining order.  Glaser v. Meserve, supra.  The  story you can find here adds some comments about this case. 

Bestiality, Encryption and Probation

According to this and other news stories, in mid-April of 2010 Douglas Spink was arrested “for running what authorities say appears to be a bestiality farm in Washington state in which visitors could engage in all sorts of twisted sex acts with animals.” And according to this news story, Spink was not charged with violating

Washington's animal cruelty law. Instead, because of a past conviction for trafficking millions of dollars in cocaine, a federal judge found him guilty of probation violations for associating with criminals, telling lies in monthly reports and travelling without permission.

A little over two years later, again according to that same story, Spink was

shocked to find a warrant for his arrest was issued last month, days before his release from federal prison. He was transferred to Whatcom County Jail and charged with three counts of animal cruelty. He has since posted $5,000 bond.  Deputy Prosecutor Eric Richey said that with the new charge, he's seeking to ban Spink for life from owning animals.

I am assuming the charges were filed under Washington Revised Code § 16.52.205(3).  (And if you would like to see a photo of Spink (with a horse), check out this site.)

That brings us to the opinion this post examines:  On August 24, 2010, Spink filed a motion for the return of property which, I gather, was seized when law enforcement officers raided his farm.  U.S. v. Spink, 2013 WL 1909523 (U.S.Court of Appeals for the 9th Circuit 2013).  As I have noted in other posts, when someone files a motion for return of property, under Rule 41(g) of the Federal Rules of Criminal Procedure, he/she is not trying to have the property suppressed so it cannot be used as evidence in a criminal prosecution.  Instead, the person is claiming the property was unlawfully seized and/or that the government no longer has a need to retain it, in which case it should be returned to the rightful owner. 

As far as I can tell, Spink’s motion sought (only?) the return of two desktop computers. U.S. v. Spink, supra.  The federal district court judge who has the case “denied the motion on September 15, 2010.”  U.S. v. Spink, supra.  On November 9, 2011, Spink filed a second motion seeking the return of the laptops.  U.S. v. Spink, supra. 

(As this news story notes, Stephen Clarke, “a British man,” was arrested with Spink (for having sex with dogs, convicted of animal cruelty, sentenced to 30-days in jail and then deported.  According to Spink’s reply brief on appeal, Clark’s “video camera and laptop was [sic] seized” during the raid on Spink’s farm. Appellant’s Reply Brief, U.S. v. Spink, 2012 WL 3342718. Law enforcement officers were “able to get into the laptop” and retrieve 70,000 images,” as noted later in this post.  Appellant’s Reply Brief, supra.)

On December 1, 2011, the [judge] . . . directed [Spink] provide the court authority to support his position that his computers be returned to him. The court also stated that he would order the United States Probation Office to clean the hard drive before returning computer to [Spink].

As directed by the court, Spink filed a Memorandum for the return of his property on January 13, 2012. On February 13 2012, the Court issued an order denying [his] second motion for the return of his property. Further, the court ordered The United States Probation Office to,

`completely and thoroughly wipe the computers and equipment in order to be raised any hidden, encrypted and contraband content. . . .  And then return the computers to Mr. Spink or his designee for safe keeping’. . . .

Appellant’s Opening Brief, U.S. v. Spink, 2012 WL 1943725.

Subsequently, on March 12, 2012 [Spink] filed a motion to stay the order directing US probation to wipe the computers. This motion was granted. Spink appeals the trial court's order to deny the return of his property until the information contained therein is `wiped’ clean.

Appellant’s Opening Brief, supra.

In reviewing Spink’s argument, the Court of Appeals noted that once property that has been seized by law enforcement

is no longer needed for evidentiary purposes, ‘”[t]he person from whom the property is seized is presumed to have a right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property.”’ U.S. v. Harrell, 530 F.3d 1051 (U.S. Court of Appeals for the 9^th Circuit 2008) (quoting U.S. v. Martinson, 809 F.2d 1364 (U.S. Court of Appeals for the 9^th Circuit 1987)).

U.S. v. Spink, supra. According to Spink’s initial brief on appeal, when it was filed in May of 2012, he was “serving time at FCI Beaumont Low Beaumont Texas” and was “expected to be released on November 23, 2012.”  Appellant’s Opening Brief, supra. I assume his lawyer and federal authorities expected him then to be put on probation.

Getting back to the Court of Appeals, it then noted that in this case

there appears to be no question that Spink is entitled to the return of the two computers. The only issue is whether the district court could direct that the computer hard drives be erased before the computers were returned to Spink. 

The record reflects that the government had a legitimate reason for seeking an order allowing the erasure of the computers' hard drives. There was substantial evidence that Spink was a skilled computer technician, who had used his computer skills to violate the conditions of his supervised release. 

Among the provisions of Spink's supervised release, which are not at issue in this appeal, are the following:

The defendant shall not possess or peruse any authentic, altered, or manufactured, in whatever form, material that depicts and/or describes `bestiality’, zoophilia or any sexual conduct involving animals except as approved in advance by his probation officer.

The defendant shall allow a probation officer to inspect any personal computer owned and operated by the defendant.

The defendant shall consent to the United States Probation Office conducting ongoing monitoring of his/her computer(s), hardware, and software. The monitoring may include the installation, at the defendant's expense, of hardware or software systems which allow evaluation of his/her computer use. Monitoring may also include the retrieval and copying of all data from his/her computer(s) or other electronic devices/media. The defendant shall also comply with the requirements of the United States Probation Computer Monitoring Program as directed.

The defendant shall shut down all websites owned, operated, or under his control that promote or contain zoophilia, bestiality or any sexual act with animal[s] to include, but not limited to [52 specifically listed websites].

U.S. v. Spink, supra. 

As to why the government thought there might be material involving bestiality on the computers, the court’s opinion notes that in sentencing Spink, the district court judge relied, at least in part,

on evidence linking Spink to the animal websites and to the screen name `Fausty’ that was used in the online postings, including photos of Spink and his animals on the websites, items labeled `Fausty’ found in Spink's home, and a sworn affidavit from one of Spink's associates. 

U.S. v. Spink, supra.   

Spink’s initial brief on appeal notes that the Probation Office also claimed it should be allowed to wipe the computers’ hard drives “because the one, “unencrypted” hard drive in the “laptop” computer that was also apparently seized from him contained 70,000 offensive images.” Appellant’s Opening Brief, supra. And it said Spink “anticipate[d] that the government” would argue that the “Probation office had determined that Spink's computer hard drive was encrypted.”  Appellant’s Opening Brief, supra (emphasis in the original).

The brief also noted that in opposing Spink’s motion for return of property, the prosecution claimed that U.S. Probation

officers seized various records and items, including video cameras and several tapes that contained footage of illicit acts involving animals on Spink's property. Further, the government argued that the officers also seized computers and electronic storage devices. As they later learned, the computers were heavily encrypted, and Spink had wiped the hard drives and the devices clean. (EMPHASIS ADDED)

Appellant’s Opening Brief, supra (emphasis in the original). 

And it argued that the prosecution

has absolutely no proof that the information on Spink's property is contraband apparently because the government has not chosen to expend the resources to ascertain what is on [his] desktop computers. Nor has the government provided evidence that U.S. Probation requested Spink to provide them access into his computer.

Since the government cannot prove that contraband exist [sic] on Spink's computers they are requesting this court to sanction the unadulterated speculation that there must be bestiality related material on [them]. The government has failed to cite authority for this novel approach to justify destroying the property of a United States citizen. 

The guilt by association argument of the government can be described as: `We can't prove Spink had Bestiality material on his desktop computers, but Clarke had this offensive material on his laptop, therefore, Spink does.’

Appellant’s Opening Brief, supra. 

Unfortunately, I do not have access to the prosecution’s brief on appeal. But either it was persuasive or the Court of Appeals simply did not find Spink’s arguments persuasive because it affirmed the district court judge’s order denying the motion for return of property. U.S. v. Spink, supra.  

In so doing, the court explained that the

government professed that it could not determine whether the computers' hard drives appeared to be blank because they had been erased or because they contained encrypted information that the government could not access. This uncertainty favors the order allowing the government to erase the hard drives.

If the hard drives have been erased, there is no harm to Spink from the government wiping the hard drives again before it returns the computers. However, if there is encrypted data, Spink presumably has the ability to access those materials, and he has not offered to access the files in the presence of the Probation Office.

Moreover, if the hard drives contain encrypted materials, those materials are likely to be the type of materials that Spink is prohibited from possessing under the conditions of his supervised release.

U.S. v. Spink, supra.