Whose DNA is it anyway?

-- By MargaretCaison - 13 Mar 2020

Subscribing to the fiction articulated in Rousseau’s magnum opus, under the so-called social contract, an individual gives up rights and freedoms in exchange for the government’s provision of certain protections that the individuals cannot provide themselves. From this transaction, individuals expect that the government will act firmly but benevolently in shielding them from systemic threats, threats which ostensibly include those who fail to abide by the proverbial contract’s terms by violating the law. What citizens do not expect from this exchange is that the government may not distinguish between those who abide by the rules and those who do not, and that there may be some threat to individual privacy from the government itself, inherent to the contract.

DNA Collection

While the average American may have grown accustomed to companies’ data mining schemes on nearly all aspects of their lives, defending their resignation to the collection on the basis that they “have nothing to hide,” these same people, and even some of those allegedly concerned with data privacy, are likely unaware of the government’s collection and use of their physical data to determine their participation in a felonies and in some states, misdemeanors. Flying in the face of the tired maxim “innocent until proven guilty,” the federal government—and a majority states—are statutorily authorized to collect and retain DNA on anyone arrested for a crime. The significance of this collection and storage has many layers.

It's Easier to Catch the Bad Guys

Proponents of this practice claim that violent criminals are more swiftly taken out of commission as enforcement agencies can efficiently identify DNA matches from a national database. Proponents also point to the possibility of exoneration of the wrongly convicted with the introduction of new DNA evidence and the possibility that data might solve cases long chilled by the absence of such evidence. But this practice subjects the innocent to a number of unwanted and unforeseen scenarios, including the prospect of false positives, shoring up faulty prosecutorial cases as jurors have historically been unduly persuaded by this type of evidence.

The Cost

More insidious yet, this means that the DNA may be stored for an indefinite period, depending on state requirements for destruction of the sample, opening it up for abuse by the federal and state agencies with access to the national database. As such, this practice at first glance appears to run afoul of the Supreme Court’s recent decisions expanding individual privacy rights under the Fourth Amendment, as it did in Riley v. California, 573 U.S. 373 (2014), and Carpenter v. United States, 585 U.S. __ (2018).

Precedent supports the practice

However, upon further investigation, in Maryland v. King, 569 U.S. 435 (2013), decided just one year before Riley, the Court squarely held that, in likening swabbing to fingerprinting, DNA swabs of arrestees did not violate reasonable expectations of privacy because a swab was only a “minor intrusion,” especially when compared to the “significant state interest” in pretrial processing. Id. at 465. The result of the King holding was that Alonzo King, a man previously convicted of “menacing” a group of people with a shotgun, was convicted of rape after his mouth swab matched a sample from the victim, despite there being no other evidence to tie him to the crime. Id. at 435.

It does not take more than a few logical steps to see the potential for abuse by enforcers and harm to an individual’s future liberty. Gathering DNA upon an arrest, regardless of the circumstance or the arrestee’s record, may incentivize law enforcement actors to make arrests for the purposes of evidence gathering—either for the present case they are looking to clear from their desk or for one they expect will occur in the near or distant future. Moreover, the type of information and the concomitant statutory requirements that guide how the DNA may be stored and used further expose arrestees to harm through a lack of substantive privacy regulation.

Federal statutes expand the scope

The federal statute determining the creation, use and storage of the DNA, 34 U.S.C. § 12592 (2018), provides that if “quality control and privacy requirements” are not met, the storage should be “cancelled.” While the statute is protective of arrestees' “privacy” on its face, the control measures outlined in the rest of the statute fail to set limits on the information in a way that would meaningfully protect the information. The statute permits the disclosure of stored DNA samples (1) to “criminal justice agencies” for “law enforcement identification purposes;” (2) to judicial proceedings; (3) for a criminal defense; and (4) for “identification research.” Id. Similar language applies to the FBI under 34 U.S.C. § 12593. At least at the national level, in either the state or federal enforcement context, if the DNA is entered into a database, any entity involved in the adjudication and enforcement of law may obtain access to the record. The open-ended language of the statute begs the question: how exactly do the requirements impose any limitations on the government or provide privacy protections? As such, the statute stands to merely codify expansive use by these enforcement agencies by simply furthering the exposure of individuals to harm by way of violations of their privacy.

The Result

Under this DNA collection regime, a citizen may wonder to what extent their DNA remains their own if it can be subjected to governmental collection and collation, from either a participating state or the federal government, at any time a law enforcement officer determines an individual’s candidacy for a crime. Excepting the marginal protections provided to all arrestees such as probable cause, the answer may be that it is not—or at a minimum, it is on loan until the government comes knocking.

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