What Family Judges Can Learn From Pornography
For those who may not have heard the term before, “deepfakes” are images or videos that have been digitally altered to include very realistic – but deceptive – portrayals of celebrities or well-known individuals. As one example, a series of recent deepfakes appear to show Tom Cruise doing magic tricks and telling jokes. Far more notoriously, they are also found in pornography videos, where celebrity faces are convincingly transplanted onto the bodies of porn stars using digital tools and artificial intelligence; the result is that the actor is effectively put into the sexual “action”, without his or her consent.
Technologically, deepfakes are a few steps up from the concept of email “spoofing”, which involves creating an email message with a forged address for the sender, i.e. making it seem like the email originated from a particular person, when it did not. In whatever form, this type of tech-based deception is getting harder and harder to spot, especially with the advanced state of technology. And, it’s becoming more prevalent even outside the realms of pornography and Hollywood.
Case in point: Deepfakes and spoofing have even infiltrated the Family Court system, in the form of fake evidence proffered to a judge – usually by a spouse or parent in support of his or her position at trial or in a proceeding.
The potential for misuse and misrepresentation was illustrated in a recent custody battle, in a case called Lenihar v. Shankar. The court began its judgment in the case this way:
Text messages, emails and social media postings have become leading sources of evidence across a wide array of criminal, civil and family disputes. Judges have before them the actual words and deeds of the parties, written or posted in the party’s own hand.
Or do they?
In an era of “fake news” it should come as no surprise that from time to time, courts will be presented with fake evidence. Accessible technologies have made it easier than ever to generate or alter phone calls, texts, emails, social media accounts, photographs and even experts’ reports in a manner that disguises their origin and fakes, or “spoofs”, their intended purpose.
On the fifth day of trial, the longstanding custody dispute took a sharp turn when the mother – who was a citizen of India but a permanent resident in Canada – tendered a series of what the court called “transparent and shocking forgeries” that she had created. These included “an altered paternity test, a forged ‘Sperm Donor Agreement’ and a sham email exchange between the father and his counsel which alleged the planning of a criminal act to remove the mother from the litigation.”
The mother’s rampant deception prompted her current lawyer (who was the last in a series of 11) to withdraw immediately; the mother advised the court she would be continuing as a self-represented litigant. However, only 30 hours later she hopped a plane to India, and did not even stop to say goodbye to the daughter for whom she was seeking custody. The court also heard evidence that the parents’ brief three-month courtship, as well as their volatile long-distance marriage, were peppered with confusing lies and controlling behavior by the mother.
After untangling all the fake texts and emails, doctored audio, false testimony by imposter witnesses, and other discredited evidence tendered by the mother, the court readily granted custody to the father, who was a native of Oregon and was still living there.
Then, at the end of the judgment spanning over 250 paragraphs, the court offered the following prescient comments about the rise of digitally-altered evidence of all types, the court’s own role at weeding out the forgeries:
Some Final Thoughts
As our court transitions to a fully digital platform, this trial was a stark reminder of the potential for the manipulation and misuse of electronic evidence.
The most common internet definition of a spoofed email is when the email address in the “From” field is not that of the sender. It is easy to spoof an email, and not always so easy to detect. For sophisticated senders – such as actors who are “phishing” for information of commercial value – the origins of a spoofed email may never be detected.
Spoofing originates from the idea of a hoax or a parody, and in the early days of the internet, it was a legitimate tool for managing communications so that a user believed that an email came from one source, when it actually came from another.
Spoofing first arose as a term in family law (more commonly referred to in the U.S.A. as divorce law) to describe cell phone users hiding their identity and/or location for nefarious purposes. As a result of advances in mobile apps, websites, forwarding services and other technologies, callers are now able to change how their voice sounds, to evade a blocked number or to pretend to be a person or institution with whom their target was familiar. Targets can be tricked into disclosing sensitive information, harassed, stalked and frightened.
Any electronic medium can be spoofed: texts, emails, postings to social media, and even messaging through a reputable software program specifically designed to provide secure communications between sparring parents.
What stood out in this case was the purpose of the spoofed communications. Instead of tricking or scaring the target, electronic communications were spoofed to deliberately damage the other parent’s credibility and to gain litigation advantage. In R. v. C. B., the Ontario Court of Appeal foreshadowed the relevance of inauthentic electronic evidence. “[T]endered as bogus” is a critical catch that is not always apparent. A party’s lament that “it wasn’t me” may appear credible at one stage of the proceeding but may no longer be credible at a later stage. An email or text that on first reading appears authentic might later be found to be inauthentic when examined within the evidence as a whole.
Fake electronic evidence has the potential to open up a whole new battleground in high conflict family law litigation, and it poses specific challenges for Courts. Generally, email and social media protocols have no internal mechanism for authentication, and the low threshold in the Evidence Act that requires only some evidence: direct and/or circumstantial that the thing “is what it appears to be;” can make determinations highly contextual.
In a digital landscape, spoofing is the new “catch-me-if-you-can” game of credibility.
I urge lawyers, family service providers and institutions to be on guard, and to be part of a better way forward. Courts cannot do this work alone, and the work must be done well. High conflict litigation not only damages kids and diminishes parents; it weakens society as a whole, for generations to come.
As technology gets more accessible, and as fake evidence gets easier to create, it may be tempting for Family litigants to embark on a little digital wizardry of their own, in a bid to bolster their case. But for those who might be tempted, the decision in Lenihan v. Shankar serves as a stark warning: In a separate ruling, the court slapped the mother with an order requiring her to pay a whopping $438,000 in costs.
For the full text of the trial and costs decisions, see:
Lenihan v. Shankar, 2021 ONSC 330
Lenihan v. Shankar, 2021 ONSC 1537