Do DNA 'prints' invade privacy?
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Being fingerprinted upon arrest is so commonplace, few people think twice about it.
But what if the arresting agency wanted to take DNA? And run it against an index of unsolved crimes? And then store it in a database for eternity?
Over the past several years, DNA collection has become more common, and it's regularly taken from people convicted of a crime.
But this year, the Department of Justice issued a rule allowing for the collection of DNA from anyone who is arrested for a federal crime.
It took effect on Jan. 9 and is currently seeing its first challenge here in the Western District of Pennsylvania.
Ruben Mitchell is charged with possession with intent to distribute 5 kilograms or more of cocaine. He was indicted in March and has been incarcerated since.
At his first court appearance, Mr. Mitchell objected to the collection of his DNA pre-conviction, and U.S. Magistrate Judge Lisa Pupo Lenihan issued an order blocking the collection until a decision by the district court.
Both sides have filed briefs on the matter, and U.S. District Judge David S. Cercone has not yet ruled.
The issue raises questions of privacy and safety.
Proponents argue that the collection of DNA -- either through a cheek swab or blood draw -- is not intrusive, and that its benefits of helping law enforcement solve past and future crimes far outweigh the drawbacks.
Opponents claim that the collection of DNA from a person still considered by the system to be innocent is a violation of the Fourth Amendment protection from unreasonable search and seizure.
Further, they argue if DNA is necessary to a defendant's criminal case, the prosecutor to can obtain a search warrant to collect it.
"The trend is always to cut the corners. But you look up one day, and a very important constitutional protection is gone," said American Civil Liberties Union legislative counsel Jennifer Bellamy. "I don't think it's an undue burden for law enforcement to obtain a warrant."
And if exigent circumstances apply, she said, a warrant isn't even necessary.
"Just because someone commits any crime doesn't mean there's a probable cause link between the crime and the need for the DNA," she said.
U.S. Sen. Jon Kyl, R-Ariz., who wrote the portion of the law that allows for the collection of arrestee DNA, believes it is an important preventative measure.
"We know from past experience that collecting DNA at arrest or deportation will prevent rapes and murders that would otherwise be committed," he said in a news release.
Had the regulation been in place sooner, Mr. Kyl said, it could have prevented a string of sexual assaults in Chandler, Ariz., in 2006 and 2007.
The suspect, Santana Aceves, was an illegal immigrant who was arrested and deported in 2003. Had his DNA been collected then, Mr. Kyl said, a match could have been made after the first attack and several young women could have been spared.
According to the Department of Justice, collecting DNA is no different from taking fingerprints, except that the technology has advanced.
"In addition, as with taking fingerprints, collecting DNA samples at the time of arrest or at another early stage in the criminal justice process can prevent and deter subsequent criminal conduct -- a benefit that may be lost if law enforcement agencies wait until conviction to collect DNA," the federal regulation said.
Further, when biological evidence is left at a crime scene, the DNA database may help solve the case, whereas a simple fingerprint may not, the regulation said.
Ms. Bellamy disagrees that the two are similar.
"They're not analogous to fingerprints because they provide biological information that fingerprinting does not," she said.
Besides identifying a person, DNA can reveal genetic characteristics, including race, disease predisposition and possibly even personality traits.
Simon Cole, a criminology professor at the University of California Irvine, is against the idea of an arrestee database, but not based on what he calls "genetic exceptionalism."
"It's not because I think the government is going to read people's disease propensities, or health insurers will do it. But more because it's discriminatory," Mr. Cole said. "It's not equitable."
If a person is a minority, or lives in the inner city, the chances of arrest -- especially during adolescence -- multiply significantly.
"The chance of [being arrested] an arrest is not really equally distributed across our society," Mr. Cole said. "To then have lifetime stigmatization because of a single arrest seems discriminatory to me."
Special Agent Ann Todd, a spokeswoman for the FBI, countered that information regarding racial identity is not part of the DNA profile that is maintained in the database.
Jeffrey Rosen, a law professor at George Washington University who has written on this issue, said it's a similar argument related to the potential for familial matching.
DNA samples sometimes result in a partial match: While a DNA profile does not match a particular suspect, it may match a family member.
With familial matching, the criminal investigation is not limited to the person who is a suspect.
Mr. Rosen said it could expose an arrestee's entire family to a lifetime of genetic surveillance.
"Should you be able to track them down simply because they have a family member in the database?" he asked.
Agent Todd said her agency does not conduct deliberate familial searches. Further, she said, the software the agency uses does not have the ability to run such a search.
However, according to an interim policy set in 2006, if a partial match is returned in the database, individual states can decide whether to release that information, Agent Todd said.
"As we know from history, genetic information that is maintained can and has been abused," Ms. Bellamy said. "It's a slippery slope when we allow the government to start stockpiling biological material from innocent people."
According to Agent Todd, as of July 1, the FBI had distributed 57,000 DNA kits for collection. The lab had received 718 arrestee samples, but at that time, none had yet been entered into the National DNA Index System.
One of the legal issues surrounding the debate is whether a person who has been arrested has a diminished expectation of privacy.
For those people who have already been convicted, that's the case -- and DNA collection has been upheld in a number of courts.
Assistant U.S. Attorney Michael Ivory, writing on the Mitchell case, said that pretrial detainees also have a diminished privacy right.
"[Mitchell's] access to the outside world is limited, his movements are controlled and monitored by institutional personnel, his cell is subject to warrantless searches, and all of his non-attorney telephone calls are recorded," Mr. Ivory wrote.
Further, Mr. Mitchell's arrest occurred after a grand jury determined that there was probable cause to indict him, and Judge Lenihan found that there was probable cause to hold him.
That, Mr. Ivory said, was enough for a district court judge in California, who ruled in May that arrestee collection was constitutional.
Mr. Rosen expects that the law permitting arrestees to have their DNA collected will ultimately be considered by the U.S. Supreme Court.
Though there have not yet been any federal circuit court decisions on the issue, state courts are divided.
In Minnesota, a law allowing arrestee collection was struck down. Virginia appellate courts reached the opposite conclusion.
"I do expect a split on it because it's such a controversial issue," Mr. Rosen said. "This is a completely open legal area."
First Published August 24, 2009 12:00 am
