NO. 12-1776

________________

IN THE

Supreme Court of the United States OCTOBER TERM 2012

________________

UNITED STATES OF AMERICA,

Petitioner,

v.

MARK ZUCKERMAN,

Respondent.

________________

On Writ of Certiorari to the

United States Court of Appeals

for the Thirteenth Circuit

________________

BRIEF FOR PETITIONER

________________

Devin Wagner

Erren Chen

Jeffrey Westwood

TEAM NO. 1

Counsel for Petitioner

i

QUESTIONS PRESENTED

I. Whether the Evans DNA Collection Act violates the Fourth Amendment to the United States Constitution.

II. Whether Respondent Mark Zuckerman has a privacy interest protected by the Fourth

Amendment in his Facepoke page.

ii

TABLE OF CONTENTS Page QUESTIONS PRESENTED ............................................................................................................ i TABLE OF AUTHORITIES ......................................................................................................... iv OPINIONS BELOW ........................................................................................................................1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......................................1 STATEMENT OF THE CASE ........................................................................................................1 SUMMARY OF THE ARGUMENT ..............................................................................................5 ARGUMENT AND AUTHORITIES ..............................................................................................7

I. UNDER THE TOTALITY OF THE CIRCUMSTANCES BALANCING TEST,

COLLECTION OF A DNA SAMPLE FROM A VIOLENT PRETRIAL ARRESTEE DOES

NOT AMOUNT TO A FOURTH AMENDMENT VIOLATION ....................................................7

A. Collection of DNA from a Pre-Trial Detainee, Arrested on Probable Cause of Committing a Violent Crime, Results in a De Minimis Intrusion on an Already Impaired Expectation of Privacy...................................................................9

1. As a violent arrestee and pre-trial detainee, Zuckerman has a severely

diminished privacy expectation in his identity .....................................................9

2. The collection of Zuckerman’s DNA and its subsequent analysis are minor intrusions—further demonstrating the reasonableness of the search .................................................................................................................. 11

a. Performing a buccal swab on Zuckerman is physically harmless ................12

b. The type of information processed to create Zuckerman’s DNA is

scientifically and practically limited to that which only identifies

him.................................................................................................................13

3. Collection of Zuckerman’s DNA under the EDCA, like fingerprinting, is simply a routine booking procedure used for identification ...........................15

B. The Government’s Many Legitimate and Compelling Interests Served by

the EDCA Outweigh Zuckerman’s Reduced Expectation of Privacy in His Identity ......................................................................................................................17

iii

1. The lower court failed to properly assess the government’s compelling interest in accurately identifying violent individuals arrested with probable cause .....................................................................................................17

2. Because the EDCA identifies arrestees with infallible precision, the

law significantly advances a multitude of compelling governmental interests ...............................................................................................................20

II. BECAUSE ZUCKERMAN HAS NO REASONABLE EXPECTATION OF PRIVACY IN HIS

FACEPOKE ACCOUNT, HE MAY NOT AVAIL IT TO THE PROTECTIONS OF THE

FOURTH AMENDMENT .....................................................................................................23

A. Zuckerman Held No Reasonable Expectation of Privacy in His Facepoke Publications Because He “Assumed the Risk” That the Recipients Would Disclose the Messages to the Government ...............................................................24

1. Courts applying the “assumption of the risk” doctrine to other

mediums of communication find that the Fourth Amendment does not prohibit the government from accessing content from intended recipients .............................................................................................................26

2. The principal rationale for the decision in Miller—that the sharing

party “assumes the risk”—is more cogent in the social media context than in e-mail or letter writing ............................................................................27

3. Several courts have applied Miller and its progeny to cases involving

social media—finding that, regardless of privacy measures, social media users enjoy no legitimate expectation of privacy in information they intentionally share online ............................................................................29

4. It must be observed that what Zuckerman claims is an expectation of

privacy in another’s Facepoke account ...............................................................30

B. Supplying Fourth Amendment protection to an individual’s Facepoke page belies the very purpose of social media—the sharing of information—which users have demonstrated is worth the “risk” ..................................................32

C. Zuckerman had notice that EST would pursue an investigation into his

Facepoke account if its use compromised EST’s interests .......................................34

CONCLUSION ..............................................................................................................................36

iv

TABLE OF AUTHORITIES Page(s)

CASES: Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007)..............................................................................................15, 21 Bell v. Wolfish, 441 U.S. 520 (1979) ....................................................................................................8, 10, 14 California v. Ciraolo, 476 U.S. 207 (1986) ..............................................................................................................23 Florence v. Bd. of Chosen Freeholders of Cnty. of

Burlington, 132 S. Ct. 1510 (2012) ..........................................................................................................10 Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) ....................................................................................26, 27, 28 Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) ................................................9, 12, 14, 15, 16, 18, 19, 20, 21 Hayes v. Florida, 470 U.S. 811 (1985) ..............................................................................................................16 Hoffa v. United States, 385 U.S. 293 (1966) ..............................................................................................................24 Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995) ..................................................................................................10 Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) ..............................................................................10, 16, 18, 21

Katz v. United States, 389 U.S. 347 (1967) ..............................................................................................................23

King v. State, 42 A.3d 549 (Md. 2012) ...............................................................................10, 13, 15, 18, 19 Knights v. United States, 534 U.S. 112 (2001) ......................................................................................................8, 9, 17

v

O’Connor v. Ortega, 480 U.S. 709 (1987) ..............................................................................................................35 Ornelas v. United States, 517 U.S. 690 (1996) ................................................................................................................7 People v. Harris, 949 N.Y.S.2d 590 (N.Y. Crim. Ct. 2012) .............................................................................28 Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995) ................................................................................................11 Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (2010) ..........................................................................................29, 30, 34 Samson v. California, 547 U.S. 843 (2006) ..............................................................................................................11

Schmerber v. California, 384 U.S. 757 (1966) ..............................................................................................................12 Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) ......................................................................................................7, 8, 13

Smith v. Maryland, 442 U.S. 735 (1967) ..............................................................................................................24

State v. Hinton, 280 P.3d 476 (Wash. Ct. App. 2012) ....................................................................................31 State v. O’Hagen, 914 A.2d 267 (N.J. 2007)......................................................................................................12 United States v. Amerson, 483 F.3d 73 (2d Cir. 2007)........................................................................................13, 17, 18 United States v. Jones, 132 S. Ct. 945 (2012) ....................................................................................13, 17, 18, 19, 22 United States v. Kincade, 379 F.3d 813 (9th Cir. 2004) ..........................................................................9, 10, 11, 20, 22 United States v. King, 55 F.3d 1193 (6th Cir. 1995) ....................................................................................26, 27, 28

vi

United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996) ................................................................................................28 United States v. Meregildo, No. 11-Cr.-576(WHP), 2012 WL 3264501 (S.D.N.Y. Aug. 10, 2012) ................................................................29, 30 United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990) ................................................................................................30 United States v. Miller, 425 U.S. 435 (1976) ......................................................................................23, 24, 25, 26, 27 United States v. Mitchell, 652 F.3d 387 (2d Cir. 2012).................................................8, 9,11, 13, 14, 15, 16, 17, 18, 19 United States. v. Sczubelek, 402 F.3d 175 (3d Cir. 2005)................................................................................12, 16, 20, 22 United States v. Simons, 206 F.3d 392 (5th Cir. 2000) ..........................................................................................35, 36 United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) ..........................................................................................26, 27

United States v. Weikert, 504 F.3d 1 (1st Cir. 2007) .....................................................................................................15

Widgren v. Maple Grove Township, 429 F.3d 575 (6th Cir. 2005) ................................................................................................23 Winston v. Lee, 470 U.S. 753 (1985) ..............................................................................................................12 Zimmerman v. Weis Mkts., Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011) ................................................................................................34

CONSTITUTIONAL PROVISIONS: U.S. Const. amend. IV ...................................................................................................................23

vii

LEGISLATIVE MATERIALS:

151 Cong. Rec. S13,756 (daily ed. Dec. 16, 2005)........................................................................20 H.R. Rep. No. 106-900 (2000) .............................................................................................9, 13, 18

REGULATORY PROVISIONS:

DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. 74932-01 (Dec. 10, 2008) ................................................................................19

BOOKS:

3 Wayne R. LaFave, Search and Seizure (4th ed. 2004) ........................................................................................16

LEGAL PERIODICALS:

Jules Epstein, “Genetic Surveillance”—The Bogeyman Response

to Familial DNA Investigations, 2009 U. Ill. J.L. Tech. & Pol’y 141 (2009) ...........................................................................12 Nathan Petrashek, The Fourth Amendment and the Brave New World

of Online Social Networking, 93 Marq. L. Rev. 1495 (2010) ........................................................................................28, 32 Patricia Sanchez et al., Blurred Boundaries: Social Media Privacy and the

Twenty-First-Century Employee, 49 Am. Bus. L.J. 63 (2012) ...................................................................................................33

viii

INTERNET SOURCES:

Facebook & Your Privacy: Who Sees the Data You Share

on the Biggest Social Network?, Consumer Rep. Mag. (June 2012), http://www.consumerreports.org/cro/magazine/ 2012/06/facebook-your-privacy/index.htm ..........................................................................33 Facebook Data Use Policy, https://www.facebook.com/full_data_use_policy (last visited Oct. 10, 2012) ....................................................................................................34 FBI, CODIS—NDIS Statistics, http://www.fbi.gov/about-us/lab/codis/ndis-statistics (last visited Oct. 5, 2012) ......................................................................................................20 Adam Pash, Accepting Friend Requests from People You Don’t

Know Is a Recipe for ID Theft, Lifehacker (Dec. 8, 2009, 8:35 AM), http://lifehacker.com/5421597/accepting-friend- requests-from-people-you-dont-know-is-a-recipe- for-id-theft .............................................................................................................................33 Ian Paul, Facebook Users Don’t Trust Site on Privacy Issues, PCWorld (May 15, 2012), http://www.pcworld.com/article/255615/facebook_ users_dont_trust_site_on_privacy_issues.html .....................................................................33 Jose Antonio Vargas, The Face of Facebook, New Yorker (Sept. 20, 2010), available at http://www.newyorker.com/reporting/ 2010/09/20/100920fa_fact_vargas?currentPage=all ............................................................32

1

OPINIONS BELOW

The opinion and order of the United States Court for The Eastern District of Evans is

unreported, but appears in the record at pages 4-10. The opinion and order of the Thirteenth

Court of Appeals is also unreported but appears in the record at pages 12-23.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fourth Amendment of the United States Constitution. It also

involves provisions of the Evans DNA Collection Act, codified in Evans Code 2010, § 337.

STATEMENT OF THE CASE

This appeal arises from Respondent Mark Zuckerman’s conviction for assaulting a federal

officer and embezzlement. R. at 12. The Respondent (“Zuckerman”) was charged with the

above offenses after his former employer, Evans Software Technologies, Inc. (“EST”), suspected

improprieties in his accounting. R. at 13. Following an investigation, he was convicted of both

charges. R. at 13. Zuckerman complains the investigation violated his Fourth Amendment rights

in two distinct ways. R. at 13.

Zuckerman’s Arrest. EST is a software consulting service that advises clients who

advertise on a social media network called Facepoke. R. at 5. Facepoke allows users to connect

with others for the purpose of sharing information. R.at 18. Before his arrest, Zuckerman

worked as EST’s Accounts Payable Manager. R. at 5. Because EST works closely with

Facepoke sponsors, it requires all employees to furnish their Facepoke passwords to the Human

Resource Department. R. at 5. The company’s written policy provides that an employee’s

Facepoke password is confidential. R. at 5. Moreover, EST may access an employee’s Facepoke

account only if the company has reason to believe the employee has used Facepoke against the

interests of EST and its customers. R. at 5.

2

Although Zuckerman opposed disclosing his Facepoke password “as a matter of principal,”

he obliged to fulfill EST’s condition of employment. R. at 17. Nine months into his employment

with EST, the company’s President, Jordan Tracey, discovered some inconsistencies in

accounting. R. at 17. Specifically, the company’s checks were not accounted for, and its bank

statements did not match the ledger. R. at 18. Tracey instructed Human Resources to conduct a

comprehensive review of Zuckerman’s file. R.at 5. The process usually involves a review of the

employee’s Facepoke page. R. at 5.

Human Resources was unable to access Zuckerman’s Facepoke account because the

password he provided was invalid. R.at 5. EST asked Zuckerman to provide the correct

password but he refused—at which time he was terminated. R. at 5. Refusing to leave EST’s

facility peacefully, Zuckerman attacked the escorting FBI officer. R. at 5. He was arrested and

charged with assault. R.at 5.

After taking his fingerprints, authorities asked Zuckerman to submit a DNA sample. R. at

8. The Evans DNA Collection Act (EDCA) requires every person arrested or convicted of a

violent crime to provide a DNA sample by rubbing a cotton instrument on the inner cheek—a

process otherwise known as a buccal swab. R. at 8. The DNA is then implemented into a profile

and stored in a database for future analysis. R. at 8-9. Zuckerman refused to provide the sample.

R. at 8. After securing further authorization from the trial court, the police forcefully obtained

the sample through the process described. R. at 8. At the time Zuckerman’s DNA sample was

obtained, law enforcement knew he was a person of interest in a sexual assault case. R. at 8.

Embezzlement Investigation. EST and the authorities continued to investigate Zuckerman.

R. at 6. Police tried to obtain evidence from Zuckerman’s Facepoke account, but access was

limited to designated individuals called Facepoke “friends.” R. at 18. The police discovered the

3

name of one of Zuckerman’s acquaintances when reviewing his EST email account. R. at 18.

During an interview with the individual, the police asked about Zuckerman’s Facepoke use. R. at

18. After learning the individual was a Facepoke “friend” of Zuckerman’s, they asked his

permission to view Zuckerman’s page. R. at 18. At first the individual refused, but agreed to

avoid a subpoena. R. at 6. Investigators reviewed Zuckerman’s Facepoke postings from the date

he began working at EST. R at 19. Zuckerman published the following post shortly after starting

at EST:

New job: Working for a whole flock of chickens, no heads. So disorganized they are just waiting to be ripped off. These idiots are lucky I’m honest, I could rob them blind and they would never know about it.

R. at 6. The authorities soon learned that EST was missing over $200,000. R. at 19. Shortly

thereafter, Zuckerman was charged with embezzlement. R. at 6.

The District Court. At trial, Zuckerman moved to suppress both his DNA sample and the

evidence obtained from his Facepoke page. R. at 6, 8. Zuckerman argued the EDCA violated his

Fourth Amendment right to be free from unreasonable searches and seizures. R. at 6. Zuckerman

further contended his Fourth Amendment rights were impinged when his Facepoke friend

permitted law enforcement to view the incriminating Facepoke message. R. at 7.

The trial court denied both motions. R. at 4. Regarding Zuckerman’s challenge to the

EDCA, the court concluded that collecting DNA with a buccal swab, like finger-printing, only

infringed Zuckerman’s diminished privacy interest to a minimal degree. R. at 10. The court

explained that law enforcement has legitimate and compelling interests in identifying arrestees

and solving and preventing crime, and just as collecting and comparing fingerprints help law

enforcement in these matters, so too does the collection of pretrial arrestees’ DNA. R. at 10. The

court, therefore, upheld the EDCA’s constitutionality. R. at 10.

4

In rejecting Zuckerman’s argument that he enjoys a reasonable expectation of privacy in

his Facepoke statements, the court reasoned that sharing information is the “sole purpose” of

sites like Facepoke. R. at 7. The court described Zuckerman’s expectation of privacy as

“frivolous” because nothing prevented those with whom he shared his posts from disclosing

them to the government. R.at 7. The court further observed that Zuckerman had notice that EST

would investigate his Facepoke under certain circumstances. R. at 7. Judge Denzel therefore

held that investigators did not violate the Fourth Amendment by viewing Zuckerman’s Facepoke

page. R. at 7.

Court of Appeals. The United States Court of Appeals for the Thirteenth Judicial Circuit

reversed both decisions. R. at 12. Writing for the majority, Chief Judge Baldwin acknowledged

that Zuckerman’s expectation of privacy is less than that of the general public. R.at 15. The

court, however, determined that the government’s interests in collecting pretrial arrestees’ DNA

are insufficient to outweigh Zuckerman’s mitigated expectation of privacy. R. at 16. The court

found the government’s lack of individualized suspicion or probable cause in collecting the

sample problematic and expressed concern that DNA collection “brings to mind the words of

George Orwell that ‘Big Brother’ is watching you.” R. at 16. The court held that the EDCA is

unconstitutional as applied to Zuckerman. R. at 16.

The court of appeals held that the Fourth Amendment protects Facepoke publications. R. at

21. The court noted that by sharing his information online, Zuckerman’s actions suggest he

maintained no legitimate expectation of privacy in what was shared. R. at 20. But the court

voiced its concern over the informant’s hesitation in cooperating with the government and chose

not to accept the trial court’s position that Zuckerman lost an expectation of privacy by virtue of

5

sharing information on Facepoke. R.at 20. The court concluded that Zukerman had a legitimate

expectation of privacy in his Facepoke page. R. at 21.

SUMMARY OF THE ARGUMENT

I.

Under the totality of the circumstances balancing test, this Court should find that collecting

Zuckerman’s DNA sample with a buccal swab is consistent with the Fourth Amendment. The

EDCA provides for a minimal intrusion—both physically and emotionally—on a violent

arrestee’s already diminished expectation of privacy in his identity. In this regard, the argument

advancing the constitutionality of the EDCA is substantially similar, indeed even stronger, than

what is traditionally used to uphold the constitutionality of obtaining an arrestee’s fingerprints.

The lower court’s decision finding the EDCA unconstitutional should be reversed, and the Court

should uphold the EDCA as constitutional.

As a violent pretrial arrestee, Zuckerman has a severely diminished expectation of

privacy. By virtue of being arrested for assaulting a federal agent, Zukerman is subject to a litany

of searches and seizures—each of which is substantially more intrusive than the collection of his

DNA. These procedures range from the physically invasive to those which disclose his identity.

The EDCA merely provides for an additional booking mechanism to enhance timeworn

identification techniques like fingerprinting and photographing.

Further, under national standards and scientific restrictions, the EDCA limits its analysis

of violent arrestee DNA only to information that identifies the individual. This scientific and

practical reality undermines the lower court’s concerns of “Big Brother.” In fact, nothing in the

record supports the theory that the government abuses or might abuse an arrestee’s DNA

6

identification information. Thus, collecting Zuckerman’s DNA posed a minimal intrusion onto

his identity.

The government has a range of legitimate and compelling interests for obtaining pretrial

arrestee DNA. In promoting these interests, the State of Evans passed a law giving police a tool

that more accurately and reliably identifies individuals arrested for violent crimes. But the lower

court ignored this interest by overlooking the multi-layered concept of criminal identification. In

reality, the only material difference between fingerprinting and DNA collection is that the latter

permits law enforcement to more effectively and efficiently reach its goals of protecting the

public.

The Court should reverse the court of appeals and hold that the EDCA does not violate

Zuckerman’s Fourth Amendment rights.

II.

Because Zuckerman holds no legitimate expectation of privacy in the contents of his

Facepoke page, the Fourth Amendment affords it no protection. To establish a violation of the

Fourth Amendment’s prohibition on unreasonable searches, the challenging party must have both

a subjective and objective expectation of privacy in the object targeted. While Zuckerman may

have exhibited conduct suggesting he subjectively believed no one outside his online community

would view his broadcasts, such an expectation is not one that society is prepared to recognize as

reasonable.

This Court has repeatedly held that one holds no legitimate expectation of privacy in that

which he voluntarily discloses to another. Here, Zuckerman posted information on his Facepoke

page knowing that anyone who viewed it—including the government’s informant—had complete

7

discretion to disclose what was seen. Carving out an exception in Zuckerman’s case would erode

decades of precedent.

Moreover, it is clear that social media networks like Facepoke are based on people

sharing information; the entire concept of social media is dependent on such disclosures. The

simple truth is that Facepoke users are aware of this fact and have shown their willingness to

forego privacy protection to engage in the social benefits derived from the free-flow of personal

information. As such, it cannot be said that society has recognized as reasonable an expectation

of privacy in one’s Facepoke page.

This Court should reverse the court of appeals decision on the Facepoke issue should be

reversed, and hold that Zuckerman has no legitimate expectation of privacy in his Facepoke

page.

ARGUMENT AND AUTHORITIES

Zuckerman asserts two violations under the Fourth Amendment’s prohibition against

unreasonable searches and seizures. Both issues merit de novo review. Ornelas v. United States,

517 U.S. 690 (1996).

I. UNDER THE TOTALITY OF THE CIRCUMSTANCES BALANCING TEST, COLLECTION OF A

DNA SAMPLE FROM A VIOLENT PRETRIAL ARRESTEE DOES NOT AMOUNT TO A FOURTH

AMENDMENT VIOLATION.

The compelled collection of Zuckerman’s DNA is reasonable under the totality of the

circumstances. “[T]he Fourth Amendment only protects individuals from unreasonable searches

and seizures. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 613 (1989). It follows then

that when a “search is reasonable, there is no constitutional problem.” Id. In assessing whether a

warrantless search is reasonable, courts apply the “totality of the circumstances balancing test.”

See Samson v. California, 547 U.S. 843, 848 (2006) (applying totality of the circumstances test

8

to determine whether warrantless search as condition of parole violates the Fourth Amendment);

Bell v. Wolfish, 441 U.S. 520, 559 (1979) (using the totality of the circumstances to determine

whether strip searches for pretrial detainees are constitutional). The test requires a court to

balance the degree of intrusion upon an individual's privacy against the degree to which it

promotes legitimate governmental interests. Knights v. United States, 534 U.S. 112 (2001).

There is no dispute as to the lower court’s analytical framework. Indeed, the totality of the

circumstances balancing test has been adopted by almost every circuit court to consider the

constitutionality of warrantless DNA collection. United States v. Mitchell, 652 F.3d 387, 403 (2d

Cir. 2012) (noting that in addition to the Third Circuit, the First, Fourth, Fifth, Sixth, Eighth,

Ninth, Eleventh, and District of Columbia have endorsed a totality of the circumstances

approach). Instead, the point of dissension lies in the lower court’s application of the totality of

the circumstances exception in determining the search’s reasonableness. In finding the EDCA

unconstitutional, the lower court placed an improper emphasis on a lack of individualized

suspicion. R. at 16. But “[t]he touchstone of the Fourth Amendment is reasonableness, not

individualized suspicion.” Samson, 547 U.S. at 843; see also Skinner, 489 U.S. at 624 (“a

showing of individualized suspicion is not a constitutional floor, below which a search must be

presumed unreasonable”).

A proper totality of the circumstances analysis requires the reversal of the lower court’s

decision. Zuckerman’s arrest and pretrial detainment severely diminished his expectation of

privacy in his identity, rendering it analogous to an individual in prison or on supervised release.

Moreover, DNA collection is one of the least intrusive searches—both physically and

emotionally—and is substantially comparable to fingerprinting. Finally, Congress has recognized

DNA identification technology as “one of the most important advances in criminal identification

9

methods in decades.” H.R. Rep. No. 106-900, pt. 1, at 9 (2000). Thus, the nominal intrusion on

Zuckerman’s diminished expectation of privacy, weighed against the government’s compelling

interests served by the EDCA, should result in this Court’s finding that DNA collection of a

violent pretrial arrestee is a reasonable search. Therefore, the Court should reverse the appellate

court’s decision and find that the EDCA does not violate the Fourth Amendment.

A. Collection of DNA from a Pre-Trial Detainee, Arrested on Probable Cause of

Committing a Violent Crime, Results in a De Minimis Intrusion on an

Already Impaired Expectation of Privacy.

A minimal intrusion on a violent arrestee’s weakened expectation of privacy provides little

weight in the totality of the circumstances analysis. Determining the reasonableness of a search

by considering the totality of the circumstances begins “by assessing . . . the degree to which [the

search] intrudes upon an individual’s privacy. Knights, 534 US at 118. Zuckerman’s expectation

of privacy in his identity—the discovery of which is the focus of the EDCA—is severely

diminished by virtue of his status as a pretrial arrestee. Mitchell, 652 F.3d at 412. Further, the

intrusion permitted by compelled DNA collection “can only be described as minimally

invasive—both in terms of the bodily intrusion it occasions, and the information it lawfully

produces.” Haskell v. Harris, 669 F.3d 1049, 1055 (9th Cir. 2012) (quoting United States v.

Kincade, 379 F.3d 813, 838 (9th Cir. 2004)). Thus, this first prong of the analysis does not

suggest that Zuckerman’s privacy interests were unreasonably impinged by the EDCA.

1. As a violent arrestee and pre-trial detainee, Zuckerman has a severely

diminished privacy expectation in his identity.

According to the court of appeals, the EDCA “brings to mind the words of George Orwell

that ‘Big Brother’ is watching you.” R. at 16 (internal quotations omitted). Notwithstanding its

hyperbolic tone, the court was correct to the extent that the principal purpose of DNA collection

under the EDCA is arrestee identification. Mitchell, 652 F.3d at 412 (explaining that arrestees

10

and pretrial detainees have reduced privacy interests in DNA information because it is “used

only for identification purposes”). And once Zuckerman was arrested on probable cause—an

uncontested fact—“his identification bec[came] a matter of legitimate state interest,” meaning

“he can hardly claim privacy in it.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992). When a

suspect is arrested upon probable cause, like a prisoner or parolee, any right he may have in the

secrecy of his identity is eviscerated and is subject to warrantless searches. See, e.g., Bell, 441

U.S. at 545–46, 557 (pre-trial detainees have “a diminished expectation of privacy after

commitment to a custodial facility,” and are subject to the same limitations and intrusions as any

other prisoner); Kincade, 379 F.3d at 837 (persons who are “lawfully arrested and booked into

state custody” have no privacy interest in their identifying information).

It should be noted from the outset that as a violent pretrial arrestee, Zuckerman’s privacy

was subject to a myriad of deprivations, each of which is significantly more intrusive than DNA

collection. See King v. State, 42 A.3d 549, 583 (Md. 2012) (Barbera, J., dissenting). For

example, Zuckerman’s person was undoubtedly searched head-to-toe immediately upon arrest.

See United States v. Robinson, 414 U.S. 218, 235 (1973). After his booking, nothing within the

constitution protects Zuckerman from being observed, by the police or other detainees, while

using the toilet. Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995). Perhaps no intrusion

diminishes an expectation of privacy more so than the body cavity search—which Zuckerman

may lawfully experience as a pretrial detainee. Florence v. Bd. of Chosen Freeholders of Cnty. of

Burlington, 132 S. Ct. 1510, 1514 (2012). Specifically, this Court recently reaffirmed that

pretrial arrestees such as Zuckerman may be required to “lift [their] genitals, turn around, and

cough in a squatting position” as part of the intake process. Id. In light of such procedures, even

11

critics of DNA sampling concede that felony arrestees’ privacy interests “appear to be

significantly reduced.” Kincade, 379 F.3d at 864 (Reinhardt, J., dissenting).

Moreover, any expectation of privacy Zuckerman had in his identity was thwarted by

identification procedures that preceded the collection of his DNA. Namely, by the time law

enforcement performed the buccal swab, Zuckerman was already fingerprinted and likely

photographed. R. at 13; see also Rise v. Oregon, 59 F.3d 1556, 1559–60 (9th Cir. 1995)

(“[E]veryday ‘booking’ procedures routinely require even the merely accused to provide

fingerprint identification.”). Such standard procedures are why those who are “lawfully arrested

and booked into state custody” have no privacy interest in their identifying information. Kincade,

379 F.3d at 837.

As a pretrial arrestee, Zuckerman has a diminished expectation of privacy. And what is left

of such expectation does not allow him to hide his identity. Zuckerman simply does not enjoy the

same privacy rights as the general public. His privacy interests are minimal and thus, this prong

of the totality of the circumstances analysis is not weighty, nor does it favor Zuckerman.

2. The collection of Zuckerman’s DNA and its subsequent analysis are

minor intrusions—further demonstrating the reasonableness of the

search.

The collection and analysis of Zuckerman’s DNA represents two “searches,” neither of

which unreasonably interfere with his expectation of privacy. Mitchell, 652 F.3d at 406. The first

search was performed when the government swiped Zuckerman’s inner cheek with a cotton

instrument. Second, the processing and storing of Zuckerman’s DNA also triggers a Fourth

Amendment analysis. But neither one of these “intrusions” presents novel Fourth Amendment

questions. Indeed, by collecting and storing Zuckerman’s DNA, the government did no more

12

than utilize advances in technology to identify Zuckerman in a physically harmless manner. See

United States v. Sczubelek, 402 F.3d 175, 185–86 (3d Cir. 2005).

a. Performing a buccal swab on Zuckerman is physically harmless.

The process by which the government obtained Zuckerman’s DNA sample can be

described as “perhaps the least intrusive of all seizures.”1 The buccal swab allows officers to

secure the DNA sample by gently sweeping a cotton instrument along an arrestee’s inner cheek.

Haskell, 669 F.3d at 1059. The event, therefore, is “no more intrusive than the fingerprint

procedure and taking of one’s photograph that a person must already undergo as part of the

normal arrest process.” State v. O’Hagen, 914 A.2d 267, 280 (N.J. 2007). Indeed, it “cannot be

seriously viewed as an unacceptable violation of a person’s bodily integrity.” Haskell, 669 F.3d

at 1059. The benign nature with which the EDCA touches a pretrial arrestee’s expectation of

privacy weighs in favor of finding the law reasonable under the totality of the circumstances.

The method of DNA collection in this case is substantially less intrusive than many other

types of approved procedures that identify and examine pretrial arrestees. For example, a buccal

swab is less invasive than the drawing of blood, which this Court addressed in Schmerber v.

California, 384 U.S. 757 (1966). The Court held in that case that the drawing of an arrestee’s

blood without a warrant did not violate the Fourth Amendment because drawing blood is

“commonplace” and “involves virtually no risk, trauma, or pain.” Id. at 771. Since Schmerber,

this Court has characterized the intrusiveness of blood-drawing as “not . . . an unduly extensive

imposition on an individual's personal privacy and bodily integrity.” Winston v. Lee, 470 U.S.

753, 762 (1985).

1Jules Epstein, “Genetic Surveillance”—The Bogeyman Response to Familial DNA

Investigations, 2009 U. Ill. J.L. Tech. & Pol’y 141, 152 (2009).

13

But unlike the drawing of blood, a buccal swab “can be taken in seconds without any

discomfort.” United States v. Amerson, 483 F.3d 73, 84 n.11 (2d Cir. 2007). Recognizing this

distinction, one judge reasoned that:

If the subcutaneous removal of blood from a person's veins presents only a marginal intrusion into that person's privacy interest, a fortiori the insertion of a cotton swab into a person's mouth is less of an intrusion and fairly characterized as de minimis. Unlike the process of drawing blood, performing a buccal swab does not require skin to be pierced, or a hard, foreign object to be situated inside of the body.

42 A.3d at 583. Thus, the minimal physical intrusion upon Zuckerman’s inner cheek

provides nothing to advance an argument that the EDCA violates the Fourth Amendment.

b. The type of information processed to create Zuckerman’s DNA

profile is scientifically and practically limited to that which only

identifies him.

The second “search” provided by the EDCA is the processing and storage of Zuckerman’s

DNA sample. Skinner, 489 U.S. at 616 (“The ensuing chemical analysis of the sample to obtain

physiological data” is also a search covered by the Fourth Amendment). Like its innocuous

physical imposition, the EDCA’s use and retention of DNA does not significantly impinge

Zuckerman’s privacy. As the appellate court observed, the EDCA’s purpose is to “solv[e] and

prevent[] past and future criminal activity.” R. at 14. This is done by developing DNA profiles

that function only for identification purposes. See Mitchell, 652 F.3d at 412. While the EDCA is

silent as to the scope of information analyzed, “in the current state of scientific knowledge, the

DNA profile . . . establishes only a record of the offender's identity.” Amerson, 483 F.3d at 85.

Moreover, under “national standards,” DNA profiles “do not reveal information relating to any

medical condition or other trait.” H.R. Rep. No. 106-900, at 27. Given such expressed and

scientific limitations, the lower court’s aversion to “Big Brother”—ostensibly to evoke a

scenario in which Zuckerman’s DNA is misused—is misguided.

14

Haskell demonstrates that embellished hypotheticals in which the government abuses

arrestee DNA do nothing but distort the analysis. 669 F.3d at 1061–62. In Haskell, a pretrial

arrestee challenged the collection and use of the information contained in his DNA. Id. at 1059.

He argued that the Fourth Amendment reaches “not only what the [government] actually does

with the DNA samples, but what it could do with the information.” Id. at 1061 (emphasis in

original). Rejecting the plaintiff’s fears that the government could “test the DNA for diseases,”

the court opined that such arguments are based on “hypothetical scenarios” described in “bleak

Orwellian terms.” Id. Instead, the court relied on the facts, stating “there is no evidence in the

record of a single case of DNA misuse.” Id. And “[w]hile it is hypothetically possible that . . .

rogue Government employees may record and analyze more extensive DNA information, . . . we

cannot legitimately weigh the constitutionality of the current legal regime by arguing about . . .

highly speculative actions.” Id. at 1062.

The court in Mitchell also refused to consider the fear of “Big Brother” in deciding whether

collecting a pretrial arrestee’s DNA comports with the Fourth Amendment. 652 F.3d at 408. In

that case, a man arrested but not yet convicted of drug possession argued the collection of his

DNA violated the Fourth Amendment—asserting that “with technological advances, [a DNA

profile] could reveal far more extensive information than it presently discloses.” Id. at 407. The

court was not persuaded. Id. It noted that “every one of our sister circuits to have considered

the[se] concerns . . . has rejected them given their speculative nature.” Id. As was the case in

Haskell, the court concluded that “these hypothetical possibilities are unsupported by the record

. . . and thus do not have any substantial weight in our totality of the circumstances analysis.” Id.

at 408.

15

Here, the lower court’s concerns are no less speculative than those portrayed in Haskell and

Mitchell. And like those cases, the record is completely devoid of evidence to justify fears

conveyed in “bleak Orwellian terms.” Indeed, there are no facts to connect the hypothetical

scenarios in which the lower court alludes with a “reality that is far less troubling.” Haskell, 669

F.3d at 1059. It is true that unlike the laws challenged in Haskell and Mitchell, the EDCA is

silent regarding punishment for DNA misuse. Id. at 1051 (“[u]nauthorized access or disclosure

of DNA information is punishable by State law.”); Mitchell, 652 F.3d at 399 (same under federal

law). But in practice, law enforcement has developed a steadfast policy of analyzing only what is

commonly called “junk DNA,” which is incapable of disclosing Zuckerman’s genetic make-up.

Mitchell, 652, F.3d at 400. There is nothing in the record indicating the government will deviate

from this practice. See also King v. State, 42 A.3d at 559 (noting that state “DNA samples are

analyzed in accordance with FBI standards”). Therefore, Zuckerman’s “meaningful . . . genetic

information” is protected from misuse by virtue of how the EDCA processes DNA. See id. As

such, the threat of punishment as a means for protecting arrestees’ DNA is superfluous in light of

accepted practice. See United States v. Weikert, 504 F.3d 1, 13 n.10 (1st Cir. 2007) (“The

government has stated repeatedly that it uses only junk DNA in creating individual DNA

profiles. . . . For purposes of this appeal, we take the government at its word . . . .”). Therefore,

the lower court’s concerns regarding potential abuse of Zuckerman’s DNA are unfounded.

3. Collection of Zuckerman’s DNA under the EDCA, like fingerprinting,

is simply a routine booking procedure used for identification.

Fingerprinting a violent arrestee has long been considered a part of the routine booking

process. Anderson v. Commonwealth, 650 S.E.2d 702, 706 (Va. 2007). Similarly, using a buccal

swab to take a DNA sample “is justified by the legitimate interest of the government in knowing

for an absolute certainty the identity of the person arrested, in knowing whether he is wanted

16

elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 Wayne R.

LaFave, Search and Seizure § 5.3(c), at 168 (4th ed. 2004).

The analogous treatment of the taking of DNA samples to the taking of fingerprints is

widely accepted. The Second and Ninth Circuits accepted the comparison. See Haskell, 669 F.3d

at 1049; Mitchell, 652 F.3d at 387. The Fourth Circuit opined in Jones that like fingerprinting,

the “Fourth Amendment does not require an additional finding of individualized suspicion”

before a DNA sample can be taken. 962 F.2d at 306–07. The Third Circuit held that “[t]he

governmental justification for [DNA] identification . . . relies on no argument different in kind

from that traditionally advanced for taking fingerprints and photographs, but with additional

force because of the potentially greater precision of DNA sampling and matching methods.”

Sczubelek, 402 F.3d at 185–86.

This readily apparent analogy illustrates with clarity the lower court’s improper reliance on

individualized suspicion. Like standard fingerprinting, Zuckerman’s DNA collection under the

EDCA only occurred after law enforcement determined with probable cause that he committed a

violent crime. See Evans Code 2010, § 337 (the EDCA allows law enforcement to collect DNA

sample after violent individual is arrested). As discussed above, this event diminished

Zuckerman’s expectation of privacy in his identity—which in turn, allowed law enforcement to

take his fingerprints. See Hayes v. Florida, 470 U.S. 811, 813 (1985) (explaining that

suspicionless fingerprinting of all citizens would violate the Fourth Amendment). Thus, law

enforcement did not need individualized suspicion to collect Zuckerman’s DNA for the same

reason it did not need it to obtain his fingerprints.

As a violent pre-trial arrestee, Zuckerman simply does not enjoy the same expectation of

privacy as those who choose to behave lawfully. And just as pre-trial arrestees must submit to

17

finger-printing and other routine identification procedures, so too should they be required to

submit DNA samples as a measure of standard procedure. See Mitchell, 652 F.3d at 414 (“DNA

profiling is simply a more precise method of ascertaining identity and is thus akin to

fingerprinting, which has long been accepted as part of routine booking procedures.”). In

considering the degree to which the EDCA intrudes on Zuckerman’s expectation of privacy, the

Court should find such intrusion of little weight in its totality of the circumstances analysis.

B. The Government’s Many Legitimate Interests Served by the EDCA

Outweigh Zuckerman’s Reduced Expectation of Privacy in His Identity.

The second step in the totality of the circumstances analysis is to assess “the degree to

which [the search] is needed for the promotion of legitimate government interests.” Knights, 534

U.S. at 119. The purpose of the EDCA is to provide law enforcement with an innovative

technique to solve and prevent past and future crimes. Evans Code 2010, § 337.1. The lower

court failed to give these interests proper weight by distorting what the EDCA actually does. By

harnessing the individuality of an arrestee’s DNA, the EDCA seeks to utilize a “dramatic new

tool for matching suspects and criminal conduct.” Amerson, 483 F.3d at 87. In that vein, DNA

identification of arrestees is an invaluable law enforcement gambit, assisting police in saving

lives, preventing and solving crimes, and protecting the public and innocent. This Court should

find that the public interests served by the EDCA outweigh Zuckerman’s diminished expectation

of privacy as a violent arrestee.

1. The lower court failed to properly assess the government’s compelling

interest of accurately identifying violent individuals arrested on

probable cause.

The lower court refused to give adequate consideration to the EDCA’s primary function—

the identification of arrestees. See, e.g., Mitchell, 652 F.3d at 399 (noting that the EDCA’s

federal counterpart is used “for law enforcement identification purposes”). “When a suspect is

18

arrested upon probable cause, his identification becomes a matter of legitimate state interest.”

Jones, 962 F.2d at 306. This is so “because the identification of suspects is relevant not only to

solving the crimes for which the suspect is arrested, but also for maintaining a permanent record

to solve other past and future crimes.” Id.

Against this backdrop, it must be recognized that collecting Zuckerman’s DNA is simply

the technological progression of fingerprints and photographs, neither of which trigger a

constitutional quandary. See Jones, 962 F.2d at 307 (explaining that DNA identification “relies

on no arguments different in kind from . . . taking fingerprints and photographs”); Haskell, 669

F.3d at 1060 (“Fingerprinting has been consistently upheld as constitutional.”). What

distinguishes DNA identification is an offering of “unparalleled speed and, more importantly,

accuracy in solving crimes.” Amerson, 483 F.3d at 82–83. Indeed, Congress has recognized

“DNA identification technology [a]s one of the most important advances in criminal

identification methods in decades.” H.R. Rep. No. 106-900, pt. 1, at 9.

Courts that reject DNA collection as a method for identification claim that fingerprinting

and photographing are themselves sufficient. See, e.g., King v. State, 42 A.3d at 579 (“We

simply will not allow warrantless, suspicionless searches . . . without a showing that accurate

identification is not possible using ‘traditional’ methods.”). But nothing in the constitution

commands this Court to prevent the government from using this new and highly effective tool of

identification to replace or supplement older ones.” Id. at 586 (Barbera, J., dissenting).

Moreover, this argument is no different in kind than one asserting that fingerprinting is excessive

because the government already knows what an individual looks like. Such a position is easily

rejected because, quite obviously, a criminal’s “identification” includes different types of

information. See Mitchell, 652 F.3d at 414 (noting that a person’s identity consists of “who that

19

person is . . . and what that person has done”). It should be of no consequence that photographs,

fingerprints, and DNA serve overlapping interests while simultaneously serving those which they

exclusively or more reliably advance. Notably, “there is a vast class of crimes that be solved

through DNA matching that could not be solved . . . if the biometric identification information

collected . . . were limited to fingerprints.” 73 Fed. Reg. at 74934.2 This is because the odds that

two individuals share identical samples of the DNA tested under methods similar to the EDCA is

“one in several hundred billion.” Haskell, 669 F.3d at 1051 (citation omitted).

The court below dismissed—without citing any authority—the government’s interest in

accurately identifying Zuckerman because “there was no question that [he] was the offender in

this case.” R. at 16. But this failed to grasp the concept of criminal identification. It is true that

Zuckerman’s name and date of birth were never at issue, nor was the fact that it was he who

attacked a federal officer. Still, criminal “[i]dentification encompasses not merely a person’s

name, but also other crimes to which the individual is linked.” Haskell, 669 F.3d at 1062.3 To

suggest the definition of “identification” excludes a person’s past raises the question: Why would

law enforcement want to confirm an arrestee’s name, process his fingerprints, and take his

photograph, if not to know whether he is linked to another crime? King, 42 A.3d at 586. Indeed,

like fingerprinting, whether DNA sampling can assist in criminal investigations and prosecutions

“depend[s] on accurately identifying the suspect.” Mitchell, 652 F.3d at 414 (emphasis added).

2 For example, although an offender might wear gloves or a mask to conceal his identity, he “cannot escape the match that his DNA might make with a sample contained in a DNA bank.” Amerson, 483 F.3d at 87. And because “DNA is more often left at crime scenes than fingerprints,” Id. at 1061, even an arrestee who alters his or her fingerprints in order to avoid detection can still be identified through DNA collection. Mitchell, 652 F.3d at 414. 3 See also, Webster’s Third New International Dictionary 1123 (2002) (defining “identity” as “the condition of being the same with something described, claimed, or asserted or of possessing a character claimed”).

20

2. Because the EDCA identifies arrestees with infallible precision, it

significantly advances a multitude of compelling governmental

interests.

A DNA database such as the one provided by the EDCA promotes increased accuracy and

efficiency in solving and preventing crime as well as protecting the innocent from undue

investigation and harassment. See Haskell, 669 F.3d at 1062 (explaining that interests served by

DNA collection are “solving past crimes, preventing future crimes, and exonerating the

innocent”). Furthermore, just like fingerprints, utilizing DNA identification to solve crimes other

than the one for which a person is arrested serves the government’s interest and also the public’s

interest. See Sczubelek, 402 F.3d at 185 (“The interest in accurate criminal investigations and

prosecutions is a compelling interest that [DNA identification] can reasonably be said to

advance.”). These well-established law enforcement interests weigh heavily in favor of

upholding the EDCA as constitutional.

The added value of early DNA sample collection in solving and preventing murders, rapes,

and other crimes served as a specific motive in Congress’ adoption of the EDCA’s federal

counterpart. See 151 Cong. Rec. S13,756–58 (daily ed. Dec. 16, 2005) (comments by Sen. Kyl

explaining value of the inclusion of arrestee DNA bank); see also Kincade, 379 F.3d at 839

(DNA collection “helps bring closure to countless victims of crime who long have languished in

the knowledge that perpetrators remain at large”). Jurisdictions adopting law similar to the

EDCA, including the federal government, have experienced DNA collection’s measurable

impact on solving crime. See, e.g., FBI, CODIS—NDIS Statistics, http://www.fbi.gov/about-us/

lab/codis/ndis-statistics (last visited Oct. 5, 2012) (“As of August 2012, [the national DNA

database] has produced over 187,700 hits assisting in more than 180,000 investigations.”);

21

Haskell, 669 F.3d at 1064 (noting that ten months after implementing arrestee DNA profiling,

the “samples had aided California police in 291 database hits”).

Virginia’s experience illustrates the benefits that flow from sampling an arrestee’s DNA.

Anderson, 650 S.E.2d at 706. In Anderson, a woman was raped and robbed while walking to

work. Id. at 703. Forensics took a DNA sample from the woman’s body, but the case went

unresolved for twelve years. Id. at 704. After the state implemented pretrial arrestee DNA

sampling, the offender was arrested on charges unrelated to sexual assault. Id. A DNA sample

was taken and entered into a database, where a routine analysis matched a hit to the DNA taken

from the rape that occurred over a decade earlier. Id.4

Although Zuckerman’s DNA profile has yet to match him with the sexual assault for which

he is a person of interest, the facts in Anderson cannot be ignored when assessing the utility of

analyzing his DNA. Regardless of Zuckerman’s guilt or innocence, upholding the EDCA takes a

step towards ensuring that the victim need not wait a decade or more to secure justice and peace

of mind.

DNA profiling not only solves past crimes, it provides a deterring effect to those who

would otherwise be more likely engage in illicit conduct. Haskell, 669 F.3d at 1064 (“The mere

existence of the DNA database creates a strong deterrent effect.”). DNA, unlike a fingerprint, is

difficult to prevent from leaving at the scene of a crime. Id. at 1060. Burdened with the

knowledge that his DNA is catalogued in the Evans Laboratory, a violent arrestee is less likely to

seek future criminal activity. See, e.g., Jones, 962 F.2d at 311 (holding that state’s interest in

deterring criminal behavior “justifies the involuntary taking of the sample and the creation of the

DNA data bank”).

4 The court in Anderson upheld the extraction of the rapist’s DNA, finding it “analogous to the taking of a suspect’s fingerprints upon arrest.” Id. at 706.

22

Past and potential victims of violent crimes are not the only class of people who benefit

from the EDCA. Like all DNA collecting statutes, the EDCA protects “innocent individuals—

whose DNA does not match the DNA collected at the crime scene—from even becoming

potential suspects.” Amerson, 483 F.3d at 87. Moreover, catalogued DNA identification “will

help exculpate individuals who are serving sentences of imprisonment for crimes they did not

commit.” Sczubelek, 402 F.3d at 185. The EDCA, therefore, provides the public with security

from criminals and from a heightened risk of unwarranted police intrusions. Kincade, 379 F.3d at

839 n.38 (the “use of [DNA databases] promptly clears thousands of potential suspects”—which

prevents unnecessary intrusions into the lives of innocent people while “‘advancing the

overwhelming public interest in prosecuting crimes accurately’”) (citation omitted) (emphasis in

original).

As a person of interest in a sexual assault case, the usefulness of Zuckerman’s DNA profile

cuts both ways. If Zuckerman’s profile does not strike a match with DNA collected from the

scene of the assault, his status as a person of interest will be nullified—thereby excusing him

from further inquisition while allowing the government to more narrowly tailor its investigation.

See Sczubelek, 402 F.3d at 185 (“While the presence of [defendant’s] DNA in [the database] may

inculpate him . . . it may also exonerate him.”). Thus, Zuckerman’s case provides a clear

illustration of how the EDCA advances the interests of the innocent.

The Court should reverse the lower court’s holding because the nominal intrusion provided

by the EDCA on Zuckerman’s diminished expectation of privacy in his identity, coupled with

the legitimate and compelling interest served by the collection of pretrial arrestee DNA, do not

amount to a violation of the Fourth Amendment.

23

II. BECAUSE ZUCKERMAN HAS NO REASONABLE EXPECTATION OF PRIVACY IN HIS

FACEPOKE ACCOUNT, HE MAY NOT AVAIL IT TO THE PROTECTIONS OF THE FOURTH

AMENDMENT.

Because Zuckerman has no reasonable expectation of privacy in his Facepoke account, the

Fourth Amendment does not afford protection to its contents. The Fourth Amendment provides

that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause.” U.S. Const. amend. IV. But not all government actions are invasive enough to

implicate the Fourth Amendment. Its “protections hinge on the occurrence of a ‘search.’”

Widgren v. Maple Grove Township, 429 F.3d 575, 578 (6th Cir. 2005). A “search” occurs when

an expectation of privacy that society is prepared to consider reasonable is infringed. Katz v.

United States, 389 U.S. 347 (1967). This standard breaks down into two inquiries: (1) “has the

individual manifested a subjective expectation of privacy in the object of the challenged search?”

and (2) “is society willing to recognize that expectation as reasonable?” California v. Ciraolo,

476 U.S. 207, 211 (1986).

The government does not contest whether Zuckerman had a subjective expectation of

privacy in his Facepoke page. Zuckerman might well have thought what he displayed for many

to see remained private. Nevertheless, Zuckerman’s expectation of privacy fails the second prong

of the analysis. This Court has long held that one does not have a reasonable expectation of

privacy in information he voluntarily discloses to a another, regardless of whether he did so in

confidence. United States v. Miller, 425 U.S. 435 (1976). As such, the Fourth Amendment does

not protect Zuckerman’s Facepoke message when his “friend”—one of the message’s many

recipients—discloses it to the government. Moreover, it is clear that society has behaved in a

manner inconsistent with an expectation of privacy regarding social media. Therefore, this Court

24

should reverse the lower court’s decision and find that Zuckerman enjoys no privacy interest in

his Facepoke profile that is protected by the Fourth Amendment.

A. Zuckerman Held No Reasonable Expectation of His Facepoke Publications

Because He “Assumed the Risk” That the Recipients Would Disclose the

Messages to the Government.

Once Zuckerman shared his denigrating message online, his legitimate privacy interest in it

was extinguished. This Court has consistently held that a person has no legitimate expectation of

privacy in information he voluntarily turns over to another. See, e.g., Miller, 425 U.S. at 442;

Smith v. Maryland, 442 U.S. 735, 744–45 (1979). It is well understood that the Fourth

Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he

voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, 385 U.S. 293, 302

(1966). Thus, the lower court’s decision should be reversed, and this Court should find that

Zuckerman’s expectation of privacy in his Facepoke page is unreasonable.

Miller serves as the seminal case illustrating the “assumption of the risk” doctrine. 425 U.S.

at 443. In Miller, the defendant was charged with tax fraud. Id. at 436. He sought to exclude

from evidence records the government obtained through the banks in which he held accounts. Id.

Miller argued that the records kept by the banks were personal documents he made available

only for a limited purpose—and therefore reserved his legitimate expectation of privacy in their

contents. Id. at 442.

This Court disagreed. Id. It reasoned that once shared with the bank, the records were no

longer Miller’s private possessions. Id. at 440–41. Consequently, he “t[ook] a risk, in revealing

his affairs to another, that the information will be conveyed by that person to the Government.”

Id. at 443. Rejecting the Miller’s argument, the Court explained that the Fourth Amendment is

25

not implicated “even if the information is revealed on the assumption that it will be used only for

a limited purpose and the confidence placed in the third party will not be betrayed.” Id.

Applying the “assumption of the risk” doctrine in this case leads to a conclusion consistent

with that found in Miller—Zuckerman held no legitimate expectation of privacy in his Facepoke

broadcasts. Just as the defendant in Miller voluntarily gave bank employees financial

information, Zuckerman voluntarily disclosed his pejorative message to his Facepoke “friends.”

Arguing that Zuckerman’s privacy settings trigger Fourth Amendment protection is as tenuous as

Miller’s “limited purpose” theory. In both scenarios, the defendants claim an expectation of

privacy based on restrictions placed on the information shared. Miller assumed his bank records

would only be used for purposes related to his bank account. Zuckerman assumed his Facepoke

postings would only be seen by his Facepoke friends.

But these arguments speak only to the sharing party’s subjective belief. As the Miller Court

made clear, the disclosing parties’ assumptions regarding the use of the information shared is not

dispositive. Likewise, any confidence placed in the bank employees and Facepoke friends of

Miller and Zuckerman respectively are of no consequence. Again, the Fourth Amendment does

not prohibit the government from obtaining information shared to a third-party, regardless of the

subjective intentions or beliefs of the sharing individual. Miller, 425 U.S. at 443.

The Miller Court circumscribed one’s reasonable expectation of privacy to exclude

financial documents handed over to a bank—an institution oft thought of as a fiduciary. It cannot

be said that Zuckerman assumed less risk by sharing his posts in a virtual world with

acquaintances who owe him no duty of confidentiality. In disposing of this case, the Court need

not look further than its longstanding decision in Miller—which succinctly points to the

conclusion that Zuckerman held no reasonable expectation of privacy in his Facepoke page.

26

1. Courts applying the “assumption of the risk” doctrine to other

mediums of communication find that the Fourth Amendment does not

prohibit the government from accessing content from intended

recipients.

The “assumption of the risk doctrine” has been applied with equal force to various modes

of communication. For example, in United States v. King, 55 F.3d 1193, 1195 (6th Cir. 1995),

the defendant moved to suppress from evidence letters he sent to his wife that revealed his

involvement in bank fraud. Id. Rather than destroying the letters, as was instructed, they were

turned over to the authorities. Id. The court held that although letters are afforded protection

under the Fourth Amendment, “if a letter is sent to another, the sender’s expectation of privacy

ordinarily terminates upon delivery . . . even though the sender may have instructed the recipient

to keep the letters private.” Id. at 1196. Therefore, the Fourth Amendment was not violated when

the government obtained the letters from the defendant’s wife. Id.

Similarly, courts hold no expectation of privacy exists in emails once they are sent. See,

e.g., Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001). The court in Guest explained:

Users would logically lack a legitimate expectation of privacy in the materials intended for publication or public posting. They would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose expectation of privacy ordinarily terminates upon delivery of the letter.

Id. (citations omitted). Of notable distinction is the opinion in United States v. Warshak, 631

F.3d 266 (6th Cir. 2010). There, the defendant sought to exclude from evidence thousands of

personal emails the government obtained from his email service provider. Id. at 281.

Distinguishing Miller, the court noted that the service provider “was an intermediary, not the

intended recipient of the email. Id. at 287 (emphasis in original). The court held “the mere ability

of a third-party intermediary to access the contents of a communication . . . cannot extinguish a

reasonable expectation of privacy.” Id. (emphasis in the original).

27

The opinions in King and Guest lend guidance here. Just as the King defendant’s

expectation of privacy dissolved upon his wife’s receipt of the damning letter, Zuckerman’s

expectation of privacy ended once he disseminated messages to his “friends” on Facepoke. As

the Guest court explained, a legitimate expectation of privacy in internet communications is lost

once they reach their recipients Indeed, Zuckerman’s “friend,” like the defendant’s wife in King,

was free to use the information however he wanted—including sharing it with the government.

The decision in Warshak is useful when considering its distinguishable facts. Unlike the

service provider in Warshak, Zuckerman’s Facepoke friend—the party from whom the

government obtained the information—was not a mere intermediary. This fact is of critical to the

analysis. As long as the party disclosing information to the government is the intended recipient,

Warshak runs concurrent with Miller. That is, Warshak distinguished Miller’s facts on the basis

that, unlike Miller and the case here, the intended recipients of the defendant’s emails were not

the revealing parties. The implication of the Warshak decision is that Zuckerman had no

reasonable expectation of privacy in his Facepoke messages.

2. The principal rationale for the decision in Miller—that the sharing

party “assumes the risk”—is more cogent in the social media context

than in email or letter writing.

The communicative nature of social networking, email, and letter writing furnishes a

common nexus between their Fourth Amendment analyses. That is, in each instance, the party

sharing the information loses his expectation of privacy because he “assumes the risk” that the

information will be disclosed to the government. See King, 55 F.3d at 1193; Guest, 255 F.3d at

325.

But the qualities exclusive to social media brush a particular gloss on the relationship

between “assumption of the risk” and Facepoke. Unlike a letter, Facepoke allow users to

28

simultaneously send messages to hundreds if not thousands of recipients. The necessary

implication is that Facepoke users assume a significantly greater risk that information will be

shared with strangers or the government. See United States v. Maxwell, 45 M.J. 406, 419

(C.A.A.F. 1996) (recognizing that as transmissions reach more recipients, the “subsequent

expectation of privacy incrementally diminishes”). This goes to the heart of the “assumption of

the risk” doctrine. If one cannot reasonably assume his wife will keep his personal letters secret,5

it is difficult to imagine why he may hold a reasonable belief that hundreds of online

acquaintances would refuse to do the same.

The differences between social media and email, while not as obvious as those between

social media and letter writing, highlight why the assumption of the risk doctrine applies with

greater force to Facepoke users. One court observed that “[a]t best, the defense may argue that

[social media] is more akin to an e-mail that is sent to a party and carbon copied for hundreds of

others.” People v. Harris, 949 N.Y.S.2d 590, 594 (N.Y. Crim. Ct. 2012). But while an email’s

reach can be stretched to permit mass dissemination, unlike social media, its existence does not

depend on it.6 Thus, when Facepoke users such as Zuckerman create their accounts, they consent

to the fact that their personal information will be shared with a wide group of people. See

Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 657 (2010).

5 See United States v. King, 55 F.3d at 1193.

6 Nathan Petrashek, The Fourth Amendment and the Brave New World of Online Social

Networking, 93 Marq. L. Rev. 1495, 1500 (2010) (noting that self-disclosure is what drives social media).

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3. Several courts have applied Miller and its progeny in the social media

context—finding that, regardless of privacy measures, social media

users enjoy no legitimate expectation of privacy in information they

intentionally share online.

A number of courts applying the “assumption of the risk” doctrine in the social context find

that restrictive access does nothing to bolster and argument for a reasonable privacy interest.

Romano v. Steelcase exemplifies the relationship between social media and the assumption of the

risk doctrine. 907 N.Y.S.2d at 650. In that case, the defendants in a personal injury suit moved

for an order permitting discovery of the plaintiff’s social media accounts. Id. at 652. The plaintiff

objected, arguing that by restricting access to her Facebook and MySpace pages, she enjoyed a

reasonable expectation of privacy in the information she conveyed through them. Id. at 655.

The court disagreed—reasoning that sharing information “is the very nature and purpose of

these social networking sites else they would cease to exist.” Id. at 657. Noting that sites like

Facepoke allow “millions of users” to share information, the court explained that “‘[i]n this

environment, privacy is no longer grounded in reasonable expectations, but rather in some

theoretical protocol better known as wishful thinking.’” Id. (brackets in original) (citation

omitted). Thus, when “Plaintiff created her Facebook and MySpace accounts, she consented to

the fact that her personal information would be shared with others, notwithstanding her privacy

settings.” Id.

The decision in United States v. Meregildo, No. 11-Cr.-576(WHP), 2012 WL 3264501

(S.D.N.Y. Aug. 10, 2012), is particularly demonstrative. In that case, the government accessed

the defendant’s Facebook profile through a cooperating witness—the defendant’s Facebook

“friend.” Id. at *2. The defendant argued that by limiting access to his friends, he manifested his

intent to keep the postings private. Id. The court held that “[w]hile [the defendant] undoubtedly

believed that his Facebook profile would not be shared with law enforcement, he had no

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justifiable expectation that his ‘friends’ would keep the profile private.” Id. Indeed, “those

‘friends’ were free to use the information however they wanted—including sharing it with the

Government.” Id. Thus to the extent that “Facebook privacy settings allow viewership of

postings by ‘friends,’ the Government may access them through a cooperating witness who is a

‘friend’ without violating the Fourth Amendment.” Id.

The facts in this case are indistinguishable from Meregildo. Zuckerman, like the defendant

in Meregildo, may not have expected law enforcement to read his posts. Still, nothing suggests

that Zuckerman could reasonably believe that his “friends” would not disclose the messages he

announced. Indeed, like the Facebook friends in Meregildo, Zuckerman’s friends are free to

share the information with whomever they please. Thus, as the court in Romano reasoned, as

long as Facepoke’s privacy settings permit Zuckerman’s friends to view his profile, he cannot

hold a legitimate expectation that said friends will not share the information.

4. It must be observed that what Zuckerman claims is an expectation of

privacy in another’s Facepoke page, an expectation that cannot be

viewed as legitimate.

Zuckerman is effectively arguing that his privacy interest extends to what he made

accessible to another through Facepoke. Specifically, Zuckerman contends that when the agent

read his posting via his the informant’s Facepoke account, the agent conducted a search that

violated the Fourth Amendment. But as a corollary to the assumption of the risk doctrine,

Zuckerman has no expectation of privacy in his Facepoke friend’s profile because he has no

control over it. See United States v. Meriwether, 917 F.2d 955, 959 (6th Cir. 1990) (“[A]ppellant

fails to show that he has sought to preserve a message as private by transmitting it into a paging

receiver over which he has no control.”).

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State v. Hinton, 280 P.3d 476 (Wash. Ct. App. 2012), illustrates the above principle. In that

case, the Defendant sought to exclude from evidence the text messages he sent to the phone of

his drug dealer—a phone that happened to be in the possession of the police. Id. at 478. The

police proceeded to act under the guise of the drug dealer, which led to a meeting with the

defendant. Id. The defendant was subsequently arrested for possession of cocaine. Id. The court

noted that “Hinton is arguing a privacy interest in another's electronic device, not his own.” Id.

And by sending a text message to another’s phone, the defendant “ran the risk that whomever

possessed the [phone] . . . would receive his messages.” Id. at 482.

Like the defendant in Hinton, Zuckerman does not claim a privacy interest in his Facepoke

page, but rather an interest in his friend’s. The FBI in this case, like the police in Hinton, did not

access Zuckerman’s Facepoke by circumventing Zuckerman’s privacy protections. Rather, it

sought out one of the many individuals with whom Zuckerman intended to share his postings.

Just as the drug dealer was the intended recipient of the text in Hinton, Zuckerman’s Facepoke

friend was one of the intended recipients of Zuckerman’s Facepoke messages. Similar to the

drug dealer’s phone, Zuckerman’s friend’s Facepoke page was an object over which Zuckerman

had no control. That is, he exercised no discretion as to who viewed the information available to

it. Therefore, Zuckerman assumed no less risk than the defendant did in Hinton.

B. Supplying Fourth Amendment Protection to an Individual’s Facepoke Page

Belies the Very Purpose of Social Media—the Sharing of Information—

Which Users Have Demonstrated Is Worth the “Risk.”

To hold that Zuckerman enjoyed a reasonable expectation of privacy in his Facepoke page

is to ignore the essential purpose of social media. Facepoke can be described as “an online

service that encourages self-disclosure by requiring members to populate a profile with personal

information and allows them to create a virtual community by linking their personal profile with

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those of other members.”7 Thus, “[t]he more information the user shares, the greater her ability

to connect with others.”8 And this benefit does not run unilaterally to the user. A site like

Facepoke’s “business model depends on our shifting notions of privacy, revelation, and sheer

self-display. The more that people are willing to put online, the more money [social networking]

site[s] can make from advertisers.”9 Quite simply, in order for social media to work, “people

have to give up more and more information.”10

But at what cost? Justice Alito recently observed that “[n]ew technology may provide

increased convenience or security at the expense of privacy, and many people may find the

tradeoff worthwhile.” United States v. Jones, 132 S. Ct. 945, 962 (2012) (Alito, J., concurring).

In the context of social media, Justice Alito is correct. According to a recent study, roughly half

the users of sites like Facepoke accept “friend” requests from perfect strangers.11 Further, the

privacy settings that Zuckerman claims afford his online statements the protection of the Fourth

Amendment are ignored by millions of Americans.12 Another recent survey found that 59 percent

of Facepoke-like users “had little to no trust” that their social network provider would keep their

7 Nathan Petrashek, The Fourth Amendment and the Brave New World of Online Social

Networking, 93 Marq. L. Rev. 1495, 1500 (2010).

8 Id.

9 Jose Antonio Vargas, The Face of Facebook, New Yorker (Sept. 20, 2010), available at http://www.newyorker.com/reporting/2010/09/20/100920fa_fact_vargas?currentPage=all.

10 Id.

11Adam Pash, Accepting Friend Requests from People You Don’t Know Is a Recipe for ID Theft, Lifehacker (Dec. 8, 2009, 8:35 AM), http://lifehacker.com/5421597/accepting-friend-requests-from-people-you-dont-know-is-a-recipe-for-id-theft.

12 Facebook & Your Privacy: Who Sees the Data You Share on the Biggest Social Network?, Consumer Rep. Mag. (June 2012), http://www.consumerreports.org/cro/magazine/2012/06/facebook-your-privacy/index.htm.

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information private.13 Nevertheless, the “network keeps on growing, and users continue to share

their most personal information.”14

The American Business Law Journal performed an empirical study on employees’ views

on social media as it relates to the workplace.15 The findings provide further evidence in support

of Justice Alito’s theory:

Although many respondents expressed unease at the lack of control they exercise over the information about them available on [social networking sites], it is clear that respondents were not willing to forgo participation in social networks to achieve privacy or separation of work and personal life. They displayed a strong desire to socialize, to interact, and to share truthful information about themselves on social networks. The majority believed participation on social networks is worth the risk.16 Moreover, the privacy policies of Facepoke’s counterparts reinforce what users such as

Zuckerman already know—post at your own risk. For example, a social media outlet that

provides identical services to Facepoke warns: “Always think before you post. Just like anything

else you post on the web or send in an email, information you share on Facebook can be copied

or re-shared by anyone who can see it.”17 Such unambiguous reminders have not been lost on

courts finding one has no reasonable expectation of privacy in his or her social media profile.

See, e.g., Romano, 907 N.Y.S.2d at 656 (“[A]s neither Facebook nor MySpace guarantee

complete privacy, Plaintiff has no legitimate reasonable expectation of privacy.”); Zimmerman v.

13 Ian Paul, Facebook Users Don’t Trust Site on Privacy Issues, PCWorld (May 15, 2012, 9:00 AM), http://www.pcworld.com/article/255615/facebook_users_dont_trust_site_on_privacy_issues.html.

14 Id.

15 Patricia Sanchez et al., Blurred Boundaries: Social Media Privacy and the Twenty-First-

Century Employee, 49 Am. Bus. L.J. 63, 108 (2012).

16 Id.

17 Facebook Data Use Policy, https://www.facebook.com/full_data_use_policy (last visited Oct. 10, 2012).

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Weis Mkts., Inc., No. CV-09-1535, 2011 WL 2065410, (Pa. Com. Pl. May 19, 2011) (“All the

authorities recognize that . . . Facebook’s privacy policy explains that users post any content on

the site at their own risk and informs users that this information may become publicly

available.”).

The behavioral tendencies of social media users demonstrate a collective understanding

that online socialization is enjoyed in lieu of privacy. Indeed, the observations by academia and

modern jurisprudence show that Zuckerman’s alleged expectation of privacy in his Facepoke

page is not one that society has recognized as reasonable.

C. Zuckerman Had Notice That EST Would Pursue an Investigation into His

Facepoke Page if He Used It in the Manner He Chose. Therefore, He Can

Claim No Reasonable Expectation of Privacy in the Account.

Before posting the message in question here, Zuckerman had sufficient notice that EST

investigates an employee’s Facepoke profile when the employee’s use of it is potentially harmful

to EST. Such notice severely undermines Zuckerman’s purported reasonable expectation of

privacy. Under this Court’s precedent, an “employee’s expectation of privacy must be assessed

in the context of the employment relation.” O’Connor v. Ortega, 480 U.S. 709, 717 (1987). The

salient point here is that Zuckerman published a message to a number of individuals that clearly

ran counter to the interests of EST and its clients. This is the type of scenario EST contemplated

when adopting its Facepoke policy—and why it required Zuckerman to agree to the policy’s

terms as a condition of his employment. Zuckerman was on notice that if he published

defamatory content about EST—the type involved here—it would pursue access to his Facepoke.

Therefore, he could not reasonably expect that no one outside of his Facepoke friends would see

the post.

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United States v. Simons, 206 F.3d 392 (5th Cir. 2000), demonstrates that employees who

knowingly breach an employer’s internet policy do not enjoy a reasonable expectation of privacy

in the information produced by the violating conduct. In Simons, the defendant worked for the

Federal Bureau of Intelligence. Id. at 395. The employer’s policy expressly prohibited employees

from using the internet while at work for unlawful purposes. Id. at 395–96. The policy provided

that “users shall . . . understand FBIS will periodically audit, inspect, and/or monitor the user’s

Internet access as deemed appropriate.” Id. at 396. After instituting the policy and informing

employees of its terms, the employer searched the network and found child pornography on the

defendant’s hard drive. Id.

The defendant moved to suppress the evidence obtained from his computer arguing the

search violated his Fourth Amendment rights. Id. at 397. The Fifth Circuit held the defendant had

no legitimate expectation of privacy with regard to his internet use in light of the employer’s

written policy. Id. at 398. The court reasoned that “[t]he policy clearly stated that FBIS would

‘audit, inspect, and/or monitor’ employees’ use of the internet . . . as deemed appropriate.” Id. As

such, the “policy placed employees on notice they could not reasonably expect that their Internet

activity would be private.” Id. Therefore, “regardless of whether [the defendant] subjectively

believed that the files he transferred from the Internet were private, such a belief was not

objectively reasonable after FBIS notified him that it would be overseeing his Internet use.” Id.

Because Zuckerman had notice that EST investigates its employees’ illicit Facepoke

messages, he had no reasonable expectation of privacy in the post at issue here. Although EST is

not a government employer, the reasoning in Simons is instructive. Just as the defendant in

Simons was notified of his employer’s internet policy, Zuckerman had notice that EST would

pursue access to his Facepoke under certain circumstances. Zuckerman, like the defendant in

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Simons, ignored the warning and engaged in conduct he knew was prohibited. Indeed,

Zuckerman’s disparaging remarks were just as proscribed under EST’s policy as downloading

pornography was under FBIS’s. Thus, Zuckerman had no less notice that his Facepoke would be

reviewed than the defendant had in Simons. Therefore, regardless of Zuckerman’s subjective

belief—which he manifested by concealing his password—he has no reasonable expectation of

privacy in the Facepoke page because he used it against the interests of EST.

Zuckerman holds no reasonable expectation of privacy in his Facepoke page. By publishing

his messages to an unspecified number of people, he assumed the risk that each of them would

disclose the information to the government. Moreover, the universally accepted purpose of social

media and its fundamental characteristic of full disclosure are proof positive that Zuckerman

held no expectation of privacy in his derisive posts.

CONCLUSION

For the foregoing reasons, this Court should reverse the Thirteenth Court of Appeals’

judgment and find in favor of the United States Government.

Respectfully submitted, Devin Wagner Erren Chen Jeffrey Westwood ___________________________ COUNSEL FOR PETITIONER

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CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that the Petitioner’s Brief complies with the word

limitation specified in Rule C(3)(d) of the ALA Moot Court Competition Rules.

Petitioner’s Brief contains 11,086 words.

Devin Wagner TEAM NO. 1 COUNSEL FOR PETITIONER