Info Law Assignment 1 – Freedom of Expression

AKA why I love the ISchool reason number: gazillion

Some context: Our Info Law professor is Deirdre Mulligan and the TAs for the class are Jason Ost, Robyn Perry and Mike Berger.


It was recently announced that researchers have managed to store binary information by encoding it into strands of synthesized DNA. In this way, terabytes of information can be stored in a single droplet of DNA. Right now, the technology is useless for pretty much everything except long-term storage and archival, because the decoding/sequencing process takes hours. It is also quite expensive.

Ten years go by. The cost of synthesizing and sequencing components has fallen dramatically – to consumer levels. Researchers have improved the technology to the point where DNA storage and retrieval operations now take the same amount of time as they did on traditional hard disk drives ten years before (i.e., now).

Now that the DNA drives are operational, a new practice has arisen. Activist groups have purchased cheap DNA drives and have figured out how to “print” billions of copies of their pamphlets, flyers, and manifestos onto DNA in the drives. They then crack open the drives, remove the DNA, and spread it on food, dissolve it in water, or simply spray it into the air for others to inhale. The practice is not harmful to health, but it causes some interesting effects. For example, home or hospital medical devices sometimes unintentionally “read” this DNA and display the manifesto on screen for a moment. A widely-used DNA-scanning home security device also does the same thing, displaying the pamphlets on TV screens in the home when the owner uses the device to open the front door. While there have been no reports of these glitches, in either context, causing harm medical and home security professionals are both concerned with the possibility

The federal government has become concerned with this practice. It passes a sweeping new law, the DNA Drive Excision, Interference, Removal, and Distribution Regulation Enactment (DDEIRDRE). Sections 1-2 of DDEIRDRE state:

(1) No person shall circumvent a technological measure that effectively controls access to a biological data storage device.

(2) Any person who violates section 1 willfully and for purposes of commercial advantage or private financial gain shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both.

You are a summer student at the high-power criminal defence firm of Ost, Perry & Berger LLP. The firm’s client, Jeffrey Goines, has just been charged under sections 1-2 of DDEIRDRE. He was caught by New York MTA officers spreading a liquid on the seats of the G train. When officers conducted a search of his knapsack, they found a broken DNA drive inside. Analysis of the broken drive showed that it contained copies of an animal rights manifesto, and after further investigation, Mr. Goines confessed to having been paid by an animal rights organization to crack open the drive and spread its contents in public.

One of the senior partners calls you into her office and says to you: “We really need your help in the case. This is the first time someone has been prosecuted under DDEIRDRE and we think there might be some First Amendment issues here. Can you write me a memo analyzing how we could challenge Sections 1-2 of DDEIRDRE under the First Amendment, and give me your opinion on our chances of success against the government on that issue? Now remember, we have lots of other people at the firm working on other aspects of this case, like, for example, the search and seizure issues and the fact that the government’s case is really circumstantial. I don’t want you to touch on these or any other issues in your memo at all. Confine yourself to the First Amendment issues. Also, we don’t want you going out and doing any extra research – your time is expensive! Didn’t you take that amazing INFO 205 class at the I School? Just use and cite the cases that are on their syllabus, whichever ones you think are relevant.

Oh yes, one other thing… I was thinking of writing an article about DDEIRDRE and the DNA Drive / free speech problem and submitting it to the Berkeley Technology Law Journal. Can I have your help getting started on the article? I want to talk about the various policy issues that are raised by this new technology, and especially about the competing interests that are at stake. Can we give some recommendations for lawmakers as to how they might go about balancing those interests? I’m looking for a summary of the major issues and ideas that I can turn into a full article later on. This is non-billable work, so we don’t want you doing any extra research. Just use what’s on that INFO 205 syllabus, ok, but remember to cite any of the ideas you use or refer to!

For the memo and the summary I would like you to give me no more than 6 pages of double-spaced, 12-point font total (about 1500 words). This is not a lot of space to work with, but one of the important skills you will need as a lawyer is to be brief and concise and to sort out what is relevant information to analyze and what you can leave out. Good luck!”

Samudra’s response

1      Memo

1.1  Question Presented

Are Sections 1-2 of the DDEIRDRE illegal under the First Amendment?

Sections 1-2 of the DDEIRDRE state:

  1. No person shall circumvent a technological measure that effectively controls access to a biological data storage device.
  2. Any person who violates section 1 willfully and for purposes of commercial advantage or private financial gain shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both.

1.2  Brief Answer

If we can prove the First Amendment applies to this case, then the case against the defendant is weak. The government does not have proven substantial interest, the regulation is over-broad, and prior restraint doctrine would also apply.

I would rate our chances of winning this case pretty high, if we can cross the first hurdle of classifying Goines’ actions as expressive conduct.

1.3  Facts of The Case

  • Jeffrey Goines was caught by NY MTA officers spreading a liquid on the seats of the G train. He has confessed to breaking open a DNA drive and spreading its content.
  • The broken DNA drive contained copies of an animal rights manifesto.
  • Medical and home security professionals are concerned with the usage DNA to transmit the messages in general, because of the possible harm being caused by the DNA scanners being interfered with. Sections 1-2 of DDEIRDRE were passed to ostensibly protect these interests.

1.4  Issues at stake

1.4.1      Is it speech?

Goines has not denied that he broke the DNA drive. But can it be proven that the act of breaking the DNA drive was itself “symbolic speech”?

The freedom of expression which the First Amendment guarantees includes all modes of “communication of ideas by conduct”. But to determine whether Goines’ conduct possessed sufficient communicative elements to bring the First Amendment into play, we have to ask whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson 491 US 397, 398 *1989)

In our case, to determine whether the breaking of the DNA drive itself was expressive conduct, we will have to ask whether most of the people who viewed the message (on health or security scanners or in any other form) would have inherently known that someone had gone to the extent of breaking a DNA drive to get this message to him / her. Thus, to be considered under the First Amendment, we will have to prove that “the medium is the message”.

Although the relationship between an animals rights message and the DNA as a medium-as-a-message is somewhat tenuous, we could argue that the medium has communicative weightage in this scenario because the same message would not evoke the same emotions if delivered through any other medium. And we are supported in this by the statement that “all modes by which ideas may be expressed or, perhaps, emotions evoked—including speech, books, movies, art, and music—are within the area of First Amendment concern” Universal City Studios v. Remeirdes 111 F. Supp. 2d 294 (2000)

1.4.2      Is it suppression of free speech?

If the court agrees that Goines actions are indeed free speech, then the Govt. will argue that they do have significant interests here – that of protecting public health and safety.

However, since there “have been no reports of these glitches, in either context, causing harm”, we could argue that the interest asserted by the State is not implicated on the facts before us.

The State could also argue that it has a significant interest to protect its citizen’s privacy. In this case, we could argue that a momentary display of a message is no different from unsolicited mail, and that it is not causing anyone to lose his or her privacy. If the court allows this as a valid interest, then O’Brien’s test will come into play here, as the regulation is content-neutral.

1.4.3      O’Brien’s test

A content-neutral regulation that incidentally affects expression will be upheld “if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” US v. O’Brien, 391 US 367,368 (1968)

As mentioned earlier, the government does not have facts to prove that it has substantial interests in banning the breaking of DNA drives.

The Government will probably argue that “to satisfy this standard, a regulation need not be the least speech-restrictive means of advancing the Government’s interests.” “Rather, the requirement of narrow tailoring is satisfied ‘so long as the… regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” US v. Albertini, 472 US 675, 689 (1985).

On the other hand, we can argue that “the Government may not regulate expression in such a manner that a substantial portion of the burden of speech does not serve to advance its goals.” Ward v. Rock Against Racism, 491 US 781 (1989). “A complete ban can be narrowly tailored but only if each activity within the proscription’s scope is an appropriately targeted evil” Frisby v. Schultz, 487 US, at 485.

A total ban on breaking access control to a biological data storage device also effectively bans distribution of messages stored on DNA. This could be analogized to a total ban on distribution of handbills. Just as “a ban on handbilling, of course, would suppress a great quantity of speech that does not cause the evils that it seeks to eliminate, whether they be fraud, crime, litter, traffic congestion, or noise” Martin v. Struthers, 319 US 141, 145-146 (1943), similarly, a ban on breaking DNA storage devices would suppress a great quantity of speech that does not cause the evils that it seeks to eliminate, whether they be dangers to public safety or health, or loss of privacy.

We can use these to argue that the Sections 1-2 are overbroad, and that it proscribes many activities that do not serve the Government’s interests, and thus fail the O’Brien test and hence are unconstitutional.

1.4.4      Prior Restraint

The defendant can also make a case that Sections 1-2 of DDeirdre are barred by the prior restraint doctrine.

In our case, the considerations supporting Sections1-2 of DDEIRDRE are not very substantial. The interests that DDEIRDRE seeks to serve by banning breaking of biological storage device access control mechanisms have not been proven to be substantial. On the other hand, the First Amendment interests served by allowing the breaking of DNA drives are substantial. The annoyance and disturbance of some people because of the DNA scanners showing activist’s messages should not obscure the fact of its predominant functional character – it is first and foremost a device to store and disseminate information. Hence, those of the traditional rationales for the prior restraint doctrine that relate to inhibiting the transmission and receipt of ideas are of increased relevance here.

2      Outline of Berkeley Technology Law Journal article

2.1  Policy Issues

  • Is breaking a DNA drive an expressive conduct? Or more specifically, does one step taken as a part of a larger expressive act also qualify as an expressive act?
  • Is the fact that the message is being communicated through DNA also a part of the message? Or in other words, is the DNA medium a part of the activists’ message?
  • How do we balance the right to free speech, with the rights of privacy (when the home security DNA scanner reads the DNA and shows the activist’s messages on the TV) or public health and safety (when a medical device shows a message instead of functioning as it is supposed to, it hampers the doctor’s or patients’ ability to get the right medical attention)
  • Could breaking the DNA drives lead to more serious harm in the future? E.g. could the DNA be used to hack into more sensitive / secure systems?

2.2  Recommendations

  • Sections1-2 should be repealed. An outright ban on breaking DNA drives is unconstitutional, as it does not serve proven substantial government interest and is not narrowly tailored.
  • Instead, the burden of ensuring security and proper functioning of DNA scanners should be put on the scanner device manufacturers. It should be their responsibility to authenticate the information contained in the DNA as valid information, and then act accordingly on it.