Richmond Journal of Law and Technology

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Category: Blog Posts (Page 16 of 17)

Blog: Early NFL Matchups Giving Superbowl Stiff Competition

by Walton Milam, Associate Staff


Though the Superbowl typically provides the best television advertisement of the year, the 2014 political races and particularly the Virginia gubernatorial election are giving the NFL championship a run for its money.   From Voldemort like voice overs to overly done images of the candidates sharing their vast knowledge of Virginia agriculture and manufacturing techniques, these candidates make it clear that they are the key to a more prosperous Virginia and that their opponent is downright evil.  Terry McAuliffe and Ken Cuccinelli have managed to spend what are likely millions in television marketing without making a single argument, instead relying on a litany of inductive fallacies that leave me laughing every time.[1] [2] 


Sadly, these commercials must be indicative of what political entities believe will sway voters.  Given the immense money spent by political groups across the nation to determine what campaigning tactics yields results, I think politicians vying for 2014 positions are likely catering to the demands of voters who are affected more by emotionally charged ad hominems than a candidate who ventures to make an argument.   The televised town halls meetings associated with Obamacare left me with impression that American political discourse is devolving to the “rabble- rabble” type meetings that occur on Southpark rather than a market of competing ideas that supposedly lead to a more fruitful society. 


Unfortunately both voters and politicians face incentives that give little reason to think the nature of political campaigns will change.  Voters face the prospect of choosing a “superior” candidate or facing the stigma of foregoing their civic duty to participate in elections.   This dilemma will likely force voters to give into the lesser of two evils and vote in November.  Hopeful politicians must get elected to have any impact and are willing to do what is necessary to achieve their end goal, including waging political warfare that does not actually get to any meaningful issue.


The perplexing issue facing voters is how to change demands so that politicians vying for office will be forced to switch campaigning tactics so that there is meaningful argument that involves improved government rather than alleged personal issues facing their political opponents.  Perhaps the best approach is the one put forth by PJ O’Rourke, to abstain from voting as it only encourages the political machine that their campaigning tactics and efforts are worthwhile.[3]


As mentioned supra, the prospect of abstaining from elections altogether is viewed with disdain as many consider election participation a fundamental element of American democracy.  O’Rourke’s idea then, though well-taken, will not sit well with a majority of voters and thus will not likely be a mechanism through which the nature of political campaigning shifts.


Long terms solutions might come through an improved education system through which both voters and potential elected officials come to understand the importance of using argument rather than fallacy.  This solution will have little impact in the short run and seems even more bleak as education policy stems from the same elected officials waging campaigns today. 


Though a solution seems distant, I think it is important to understand that the lack of inductive argument is a major issue in political races and all facets of society.  While I am entirely confident that this blog post will have a statistically insignificant impact on the 2014 Virginia Governor’s election and the commercials associated with it, I think informal discussion of argument and fallacy can only be helpful.[4]


At least the Virginia race is sure to provide us with more entertainment.  I can’t wait for the debates.   





Blog: Mario vs. the Internet: How Nintendo Chose to Enforce its Intellectual Property Rights

By Dimitri Karles, Associate Staff


The universal appeal of video games is impossible to deny. According to data collected by the Electronics Software Rating Board, the regulatory body that oversees the video game industry, 67% of US households play video games.[1] This ubiquity has led to record sales and industry-wide revenue eclipsed $10.5 billion in 2009.[2] Many entities, from independent developers to giant publishing houses, comprise the video game industry, and each one has the potential to influence the industry. However, there is one company whose influence pervades the industry to a greater degree than any other. Nintendo not only has some of the most recognizable gaming mascots in the world, but has also released a number of best-selling consoles. As such, the gaming community, in a rare show of solidarity, is generally positive in its views towards the Japanese gaming giant.


In May of 2013, however, Nintendo took actions that drew the ire of a large part of the gaming community[3]. One of the recent phenomena of the gaming community sees YouTubers posting videos of footage of new games, with or without commentary, which they share among their followers[4]. The community frequently refers to these clips as “Let’s Play videos” and calls those who upload them “Let’s Players.”[5] A number of these “Let’s Players” run ads on these videos, in turn generating revenue dependent on the number of views the video garners.[6] On May 14, however, a Let’s Player posting to the ZackScottGames channel discovered that the ad earnings from videos he posted of Nintendo games had ceased.[7]


After the news broke, and after the denizens of the Internet reacted as they are wont to do, Nintendo released a statement explaining the situation. Rather than completely blocking Let’s Players from posting copyright content on YouTube, Nintendo chose to insert its own advertisements “at the beginning, next to or at the end of clips.”[8] This meant that Let’s Players would no longer be able to gain revenue from videos containing content containing Nintendo copyright material, and, in turn, many Let’s Players stopped posting such content.[9]


Did Nintendo make the right choice? Should it have left well enough alone and continued to allow Let’s Players to post copyright content? Or, was its decision to exercise its intellectual property rights sound corporate policy? Though there is solid precedent that abandonment of a copyright can only be accomplished by some overt act, Nintendo was justifiably concerned about the future of its copyrights had it continued to allow Let’s Players to post copyright content without comment.[10] So, did, as the Internet predicted, these policies spell doom and gloom for the corporation at the center of this “controversy”? As it turns out, only nine days after he reported the cessation of his ad earnings, the same Let’s Player was back to earning ad revenue on those videos.[11] Was this just Nintendo’s way of sending a message to the gaming community that they would do everything in their power to retain their intellectual property rights, regardless of any potential backlash? We might never find out the answer to that question, but, as the world becomes increasingly reliant on digital media, we have to figure out how this situation fits into the larger context of digital rights management and the gaming community.  

[1] Video Game Industry Statistics, Electronics Software Rating Board (last visited September 13, 2013),

[2] Id.

[3] Stephen Totilo, Nintendo’s Turn for a 180? ‘Let’s Play’ Drama Might Have a Happy Ending, Kotaku (last visited September 13, 2013),

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Nintendo comments on YouTube ‘Let’s Play’ situation, adding ads to certain videos, GoNintendo (last visited September 14, 2013),

[9] ‘Let’s Play’ Drama.

[10] See generally, A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001); Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960).

[11] ‘Let’s Play’ Drama.

Blog: Should Search Engines be Responsible for Personal Information on the Internet?

by Spencer Mead, Associate Staff

Should Search Engines be Responsible for Personal Information on the Internet?


            Advances in technology and the Internet have revolutionized how human beings interact. 20 years ago, embarrassing moments were rarely caught on camera. However, those recorded gems started one of the most popular television shows in recent history, America’s Funniest Home Videos. People knew that their embarrassing moments had a possibility of making it on TV to be viewed by hundreds of thousands of Americans. Thankfully, video recorders were fairly large and recognizable so people generally knew when they were being recorded.


Fast forward to today. The widespread availability of the Internet, vast improvements in video recording capabilities, the advent of YouTube, and the explosion of smart phone usage allows videos to be recorded at any time, without someone being aware they are being recorded, and accessible to the entire world in a matter of minutes. Now, an embarrassing moment can be seen by millions in a few weeks’ time. There are even TV shows that get all of their material strictly from YouTube. Information spreads so quickly across the internet that it can be almost impossible to fully remove something from the public realm. But what if you want one of your embarrassing or personal moments, that should not have been placed in the public realm to begin with, wiped from the Internet for good? Is it even possible to do?


Internet Search Engines, such as Google, are extremely complex and modifying the search algorithm is not easily done. Therefore, making it difficult to permanently remove items from the search engine’s databases. However, most Internet search engines have mechanisms in place to remove unwanted items from their search results.[1] But this does not mean the information is actually removed from the search engine. People can still find this information. Sometimes just changing the search terms is all it takes to find the information through a different search on the same search engine.


One man thinks the solution is permanently altering the search engines to remove the information from their databases.[2] However, this raises several public policy concerns. This would be a very expensive process, and it might not be economically feasible for search engines to accomplish this without the services offered to the public suffering. Also, it raises concerns about free speech under the First Amendment. Where should the line be drawn between the public having full access to as much information as possible and protecting an individual’s private rights? A French Court will decide where this balance lies on October 12.[3]


This ruling might not be on U.S. soil, but it raises many concerns that could have worldwide implications. If Syria does not like all the negative press it is receiving, should it be able to force Google to remove the articles from its database? Should only individuals have the ability to make such a request? Should the First Amendment right to freedom of speech trump all requests for personal information to be removed? The answer is not known, but we as Americans need to be aware of these concerns to make sure the right balance is struck.

[1] Remove a Page or Site from Google’s Search Results, Google, (last visited Sept. 8, 2013).

[2] Google in Fight Over Content That Appears in Search Results, The New York Times, (last visited Sept. 8, 2013).

[3] Id.

Blog: NCAA Getting Out of the Video Game Business?

By Kevin Conneran, Associate Staff


With the beginning of a new football season, every college football fan is acutely aware of the challenges that his or her school will face this season. However, more pressing than your school’s mid-October game against its in-state rival is the issue of player compensation.


The debate over compensation is nothing new in college sports. For years, there have been calls to more fairly compensate student-athletes. Is tuition, room, board, and books fair compensation for athletes who generate millions of dollars for their schools? South Carolina head football coach Steve Spurrier has been outspoken in his support for player compensation, stating that he wished he could give players a “piece of the pie” that they help create.[1]


The latest development that has reignited this debate is the 2009 lawsuit filed against the NCAA by former college basketball player Ed O’Bannon that has been joined by current and former football and basketball players. Detailed information on that lawsuit can be found here. The O’Bannon lawsuit takes aim at two major revenue sources for the NCAA and its member institutions both tied to player’s images and likeness: television revenue and video game licensing.[2]


In July, the NCAA announced that they would not renew its licensing agreement with EA Sports, maker of the NCAA College Football video game franchise.[3] The Pac-12, Big Ten, and the SEC have followed suit and announced that they will not be a part of the franchise moving forward.[4] While this may sound like a win for those championing reform in college athletics, the practical effect of these moves seems to be minimal. While the NCAA and major conferences have severed their ties with EA Sports, each university still has its own licensing agreements with EA Sports. According to industry sources, only one team that appeared in this year’s version of NCAA College Football will not appear in next year’s.[5]


It seems NCAA College Football has at least a few more years left in it. At the end of the day, colleges will continue to use players’ likeness without paying compensation until the threat of litigation becomes too onerous. Until then, college athletes will continue to play for tuition, room, board, and books. I’m sure Johnny Manziel is thrilled.

Blog: NSA Surveillance, the Boston Bombing, and Political Incentives


by Walton Milam, Associate Staff


The National Security Agency’s surveillance of domestic electronic communication has garnered much attention in recent months.  The NSA apparently has access to immense databases that the government claims will protect Americans from international and domestic terrorist threats.  While the extent of the NSA’s surveillance remains a mystery, the government clearly has the capability to collect data regarding personal communications.  Many opposed to the surveillance fear a slippery slope through which the NSA will eventually monitor individual electronic activity without end.  Some including the ACLU suggest monitoring phone calls, text messages, and email violates first amendment rights.  Supporters of the surveillance claim the data collection will be directed only at identifying and monitoring potential threats to United States.  These supporters include President Obama who claims the surveillance is “circumscribed, narrow system, directed at us being able to protect our people, and all of it is done under the oversight of the courts.”[1]


Regardless of the merits of those arguing for or against surveillance, it is likely that NSA surveillance is here to stay as public opinion and as a result politicians will favor homeland security above all else.  Homeland security, for better or worse, has emerged as a dogma in American politics that few politicians seeking reelection dare speak against.  In the wake of the Boston Bombing, where surveillance technology proved particularly helpful in catching the culprits, American sentiment is likely particularly favorable to increased surveillance.  Any politician who opposed NSA surveillance will almost assuredly be met with fear-mongering from opponents who will claim opposition to surveillance equals opposition to homeland security, a cardinal political sin.  At this point, all American voters will have lived through 9/11, the Boston Bombings, the Virginia Tech massacre, and the Sandy Hook school shooting. The vast majority is old enough to remember the Oklahoma City Bombing in 1995.  Thus, National Security remains at the forefront in voters’ minds. 


To wage successful campaigns, politicians must meet the demands of their constituents.  With national security such a prominent issue that politicians can ill-afford to oppose, it is unlikely that any substantial group of politicians will gain enough clout to create legislation ending the NSA’s surveillance.  Opponents of NSA surveillance thus likely stand the best chance of ending or limiting the surveillance in the courtroom.  A number of cases have already been filed.[2]  Major telecommunications companies have a dog in the hunt as their consumers may be upset with having data about their communications parlayed to the government.  These companies will likely be primary sponsors of lawsuits against the government seeking an injunction against the NSA’s continued surveillance.


While those opposing NSA surveillance have shout loudly and frequently make headlines on NPR, Fox, CNN, and NBC, it is likely these shouts will not be heard in the Capitol where politicians face major incentives to act like they care more about national security than individual rights that may or may not be infringed by NSA surveillance.



Blog: I Just (Don’t) Want My MTV: VMA Performances Spark Movement for A La Carte Cable

 By:  Catherine Gray, Associate Staff 


            I admit it. I love the MTV Video Music Awards (VMAs). From Lil’ Kim’s seashell pasty in 1999 to Beyoncé announcing her pregnancy with Blue Ivy in 2011, the VMA’s always deliver just the right combination of crazy, ridiculous, and pure celebrity trash I’m looking for. Unfortunately this year, the event that should have taken the cake—the reunion of *NSYNC and the subsequent restoration of all my middle school hopes and dreams—was overshadowed by Miley Cyrus and her dancing teddy bears. In what can only be described as one of the most bizarre performances in VMA history, Hannah Montana twerked her way into homes across the country wearing nothing more than a spandex bikini.

            While I found this horrific and embarrassing display highly entertaining, I realize that others, particularly those individuals with young and impressionable children, might not find this to be quality broadcast. Moreover, I recognize that these parents might not want their children to have access to networks that offer this kind of programming. Indeed, in the aftermath of Miley’s attempt to prove to the world she’s a big girl now, the Parents Television Council pointed to her display of ‘creativity’ as a reason for Congress to pass the proposed Television Consumer Freedom Act.[1] The bill, introduced by Arizona Senator John McCain, would allow multi-channel distributors to provide video programming to subscribers on an individual, per channel basis.[2]

            Despite the somewhat suspect source of this movement—the Parents Television Council has a history of criticizing MTV programming for failing to adhere to family values—the appeal of the Television Consumer Freedom Act extends beyond parents who want to protect their children from the likes of Miley Cyrus’ foam finger.[3] Even those of us who gleefully tune in to the VMAs, Jersey Shore, and Teen Mom stand to benefit from being able to purchase programming on a per-channel basis. Cost-conscious consumers, instead of paying roughly $70, $80, or $90 a month for a Verizon FiOS package of assorted channels, would be able to select each channel they wish to subscribe to individually, creating a substantial reduction in cost.[4] Gone would be the days of subscribing to a bundled package, paying for channels you’d never watch to have access to ones you want. This option already exists with regard to premium channels such as HBO and Showtime, so why not extend individual subscriptions to basic network channels?[5]

The Television Consumer Freedom Act was referred to the Committee on Commerce, Science, and Transportation on May 9, 2013. [6] Although it has a slim chance of becoming enacted, the idea of a la carte cable has mainstream consumer appeal.[7] Lastly, just in case you’re interested, you can catch all the highlights from the 2013 VMAs here.

[1] Parents Television Council Blasts VMAs as Serving Sex to Teens, The Hollywood Reporter (Aug. 26, 2013),

[2] Television Consumer Freedom Act of 2013, S. 912, 113th Cong. (2013).

[3] Parents watchdog group assailts [sic] content of MTV’s ‘Jersey Shore’ and other shows, NY Daily News (Dec. 7, 2011),

[4] TV PackagesFiOS TV Packages, Verizon, (last visited Sept. 3, 2013).

[5] Premium TV Channels – FiOS TV, Verizon, (last visited Sept. 3, 2013).

[6] Television Consumer Freedom Act of 2013 (S. 912),, (last visited Sept. 3, 2013).

[7] Id.

Blog: Welcoming our Volume XX Associate Staff

by Benjamin Fox, Editor-in-Chief, Volume XX
It is my distinct honor to introduce the incoming staff members of Volume XX of the Richmond Journal of Law and Technology.  These students worked extremely hard during the journal competition, and we look forward to working with them during the upcoming school year!
Congratulations to the following students:

Billy Raska
Brittani Lemonds
Catherine Gray
Danielle Bringard
Dimitri Karles
Dylan Denslow
Emma Buck
Fiona Clancy
Jasmine McKinney
Jessica Ertel
Kevin Conneran
Kit Mathers
Laura Bedson
Matt Miller
Miles Jolley
Silvia Lee
Spencer Mead
Taylor Linkous
Walton Milam

Blog: Social Media Files and the Stored Communications Act

By:  Adam Young, Associate Survey and Symposium Editor


            We, as a society, have entered into an era in which electronic communications has become the preferred way of communicating with friends, co-workers and loved ones.  A recent study has shown that Americans spend over 20% of their online time on social networking sites alone.[1]  Although the majority of social networking sites originated as those where you could find friends, they have exploded into increasingly complex sites.  Most social networking sites, today, allow users to upload photographs and videos, post status updates, comment on friends’ posts, play games, send messages to other users and even tag themselves at specific places where they have been.  As these sites have become more popular, the number of users and the amount of content shared has increased significantly.  For example, Facebook has one billion active users as of October 2012.[2]  604 million of those monthly users use Facebook mobile products, making social networking even more convenient for, and pervasive in, people’s lives. [3]


            As technology advances over time, it forces all professional fields, specifically that of the law, to keep up with it.  One way in which the law is struggling to understand the changes in technology is the discoverability of social media files.  As Americans share more personal information on social networking sites, lawyers are increasingly turning to these social networks as resources when confronted with litigation.  Social media are not just limited to certain types of litigation – they can be found in various litigated issues.


            Social media differ from other media outlets and websites that one might mistake them for being.  Unlike traditional media outlets like newspapers, television, or books, social media’s distinctive characteristic is ease of access.  While it takes significant effort to publish a magazine or broadcast a television program, social media allow users to publish content for wide distribution at little to no cost.  Additionally, social media are different from typical websites.  Unlike a website that can be accessed simply by entering a URL, the information on social networks is not always public because users have power to control access to the content that they publish.  This notion of privacy is not only present in the mind of a social media user.  The companies that own social networking sites are concerned about the privacy of the user as well, which creates the problems lawyers face in the discovery process of social media files.  Many social media providers, as well as other holders of electronic communications, refuse to produce the content of electronic communications of their users based upon the SCA.


            The SCA was enacted as Title II of the Electronic Communications Privacy Act (“ECPA”).[4]  Part of the reason why the act was adopted was to address privacy concerns created by the rise of new technologies that the Fourth Amendment might not be able to adequately address.  In passing the SCA, Congress hoped to “protect privacy interests in personal and proprietary information” that may be stored online.[5]  At the time in which the SCA was passed, internet users were very limited to what they could do.  Therefore, the language of the SCA does not take into account advanced technology due to the very limited version of the internet that existed in 1986.  Since there have been no updates to this piece of legislation, courts have struggled on how to apply it as the internet continues to grow.


            There is a mixture of cases supporting the protection of social media sites under the SCA and those that choose to ignore the SCA completely.  The prominent case that supports protection under the SCA comes from the U.S. District Court for the Central District of California.[6]  The Crispin court walked through the language of the SCA and considered what could be protected (putting emphasis on security settings) with regards to each aspect of social media information that was to be discovered (wall posts, private messages, etc.)  The other line cases, that disregard the SCA, allow overbroad discovery requests and subsequently fail to explain why the SCA does not protect any of the information contained in the requests.


            With some viewing the currently unrevised SCA as falling into antiquity, many questions remain as to how to apply it to cases involving technologically advanced companies.  Social networking sites present one of the largest challenges for courts to tackle when it comes to apply the SCA.  Because social media providers continue to raise the SCA as a defense to third party subpoenas, courts cannot ignore the SCA forever.  In coming years, many courts will have to address whether the SCA actually offers protection to social media providers from third party subpoenas.

[1] What Americans Do Online:  Social Media and Games Dominate Activity, Neilson Wire (Aug. 2, 2010), mobile/what-americans-do-online-social-media-and-games-dominate-activity.

[2] Statistics, Facebook, statistics (last visited Jan. 20, 2013).

[3] Id.

[4] Pub. L. No. 99-508, 100 Stat. 1848 (1986).

[5] S. Rep. No. 99-541, at 3 (1986).

[6] Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010).

Blog: The New Cybersecurity Executive Order

By Airen Adamonis, Copy Editor          

The United States is currently at war with China.  However, this war is not taking place on any battlefields.  It’s taking place in cyberspace.  According to a recent article published by the Washington Post, the United States has been the target of an immense “cyber-espionage campaign” that is threatening the country’s economic competitiveness.

            Just days after a private security firm released a study accusing the Chinese military of carrying out numerous cyber-attacks against U.S. businesses, the Obama Administration released a long-awaited Executive Order on cybersecurity measures.  The Executive Order on Improving Critical Infrastructure Cybersecurity (the “Order”), released on February 12, 2013, has a goal to address cyber threats through a strengthened partnership between the U.S. Government and critical infrastructure owners.  To accomplish this goal, the Order:

  •   Requires the development of new information sharing programs to provide both classified and unclassified threat and attack information to U.S. companies;
  •   Requires the NIST’s creation of a Framework of cybersecurity practices (“Cybersecurity Framework”) to reduce cyber risks to critical infrastructure;
  •   Compels agencies to conduct regular assessments of privacy and civil liberties impacts of their activities and to make such assessments available to the public;
  •   Establishes a voluntary program to promote the adoption of the Cybersecurity Framework, which will provide incentives for companies to comply; and
  •   Calls for a review of existing cybersecurity regulation.


What does all of this mean for businesses?  For now, it does not mean much since none of the industries covered by the order will actually have to meet the completely voluntary standards.  According to Hunton & Williams’ Privacy Blog, the Order could potentially impact businesses in the following ways:

(1)   Businesses in the private sector will receive a surge of notifications from the government concerning cyber threats and recommended ways to respond to threats based on a process developed by the Department of Homeland Security (“DHS”).  The current DHS process mainly shares classified cyber threats only with defense companies, but under the new Order, information will be shared with other critical infrastructure companies, such as energy companies.

(2)   Critical infrastructure companies and secondary actors (i.e. insurance companies) will be able to voluntarily use the new Cybersecurity Framework to address potential risks.  Since participation is completely voluntary, it is likely that DHS will create incentives for companies to comply.  An example included in the Order is the call for a review of the federal procurement process to create a preference for vendors who meet the Cybersecurity Framework standards.

(3)   Certain private sector companies, who if targeted would have a devastating effect, will be named on a list of “Critical Infrastructure at Greater Risk.”  If added onto the list, companies can request reconsideration of their inclusion on the list.  However, this list does not change the fact that compliance with the Framework remains completely voluntary.

Although the new Order appears to be a positive step in the right direction by encouraging information sharing between the public and private sectors, it is unlikely that it is enough to prevent what seems like an inevitable national cybersecurity catastrophe.  Congress needs to make the next move fast.



Additional Sources:

Blog: DNA Profiling: An Invaluable Tool or a 4th Amendment Violation?

By: Kevin McCann, Associate Tech Editor

While technological innovation undoubtedly makes lives easier, that is not always the case for the justices of the Supreme Court when it comes to interpreting the Constitution. From arising 1st amendment issues with the introduction of online social media to 2nd amendment debates over the development of new firearms, the Supreme Court is routinely challenged to figure out how new technology should fit into legal doctrines and constitutional provisions drafted hundreds of years ago. Next month, the Supreme Court will have to yet again determine how a technological innovation should be applied to constitutional law.


The Supreme Court will hear oral arguments on whether the law enforcement practice of collecting DNA samples from individuals, who are arrested for but not yet convicted of violent crimes and other felonies, violates the 4th amendment. The samples are collected through a cheek swab of the arrestee’s mouth and then compiled into a national police database. With this database, law enforcement agencies can then attempt to match the DNA of the current arrestee with DNA collected in previous unsolved crimes.


This action arose in Maryland, where a man named Alonzo King was arrested in 2009 on charges of assault. Due to the severity of King’s felony charges, under Maryland Statute, King was required to have a DNA swab taken. Once the DNA profile was uploaded to the database, the law enforcement agency learned that King’s DNA matched evidence from an unsolved rape in 2003. The victim in the 2003 crime was unable to identify her attacker. However, with this new DNA match, a grand jury indicted King. After trying unsuccessfully to suppress evidence of the original DNA swab from his 2009 arrest, King was convicted of the rape charges and sentenced to life in prison.


Prior to this case came another situation in 2004 where the Maryland Statute’s cheek swab requirement was challenged. In Maryland v. Raines, an incarcerated felon was required to submit to the DNA cheek swab test. He was also matched in the criminal database and was charged with a prior unsolved sexual assault. When he sought to suppress the DNA cheek swab, the Maryland Court of Appeals founded that as an incarcerated individual, Raines “enjoy[ed] less liberty than that of ordinary citizens”, and therefore his 4th amendment rights were not violated.


However, King can be distinguished from Raines because the individual seeking to suppress evidence stemming from an unreasonable search and seizure in King was not incarcerated but rather only arrested. The Supreme Court has stated that the key to analyzing whether a search is appropriate under the Fourth Amendment is to take into consideration whether an individual has a ‘reasonable expectation of privacy’ as to the focus of the search and whether the government’s interest outweighs that expectation. Therefore the question emerges as to whether an arrested individual would be reasonable to expect a higher level of privacy over an individual that is already incarcerated, and whether that higher expectation level is enough to render the DNA swab an unreasonable search under the 4th amendment. Oral Arguments will be held on February 26.


Additional Sources:




–          Maryland v. Raines, 857 A.2d 19 (Md. 2004)

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