Oral Argument on DNA Searches Provides Scary Glimpse Into the Future of Privacy

By Hanni Fakhoury | EFF | March 4, 2013

The Supreme Court recently heard oral argument in Maryland v. King, a case considering the constitutionality of warrantless DNA collection from arrestees. We’ve long warned about the privacy problems with the rise of cheap, easy and fast blanket DNA collection, and filed an amicus brief with the Court urging it to hold the government can only obtain this sensitive genetic material with a search warrant. While it can be fruitless trying to read the tea leaves of oral argument, one specific idea — that technological advances making DNA analysis faster means warrantless collection may be OK — should leave you worried about the fate of privacy going forward in the digital age.

One of the main disagreements surrounding the issue of DNA collection is whether the state is collecting DNA from arrestees for immediate identification — to figure out if they’ve arrested the right person and learn who that person is for purposes of making a bail determination — or for past and future investigation — to solve cold cases and to store DNA for future searches. The state has long claimed they used DNA for both, while we’ve argued the government simply isn’t able to use DNA collection for immediate identification purposes since there’s currently a delay in analyzing DNA ranging from several days up to a few months. But with the rise of rapid DNA analyzers which can analyze DNA in 90 minutes, law enforcement is chomping at the bit to purchase and install these devices at police stations across the country. When the lawyer challenging the blanket DNA collection argued that law enforcement’s interest in using DNA for immediate identification was simply not possible because of the lengthy delays in DNA analysis, Chief Justice Roberts interrupted to note (PDF):

Now, your brief says, well, the only interest here is the law enforcement interest. And I found that persuasive because of the concern that it’s going to take months to get the DNA back anyway, so they are going to have to release him or not before they know it. But if we are in a position where it now takes 90 minutes or will soon take 90 minutes to get the information back, I think that’s entirely different…

Other members of the court echoed this idea, hinting that if DNA analysis was done faster, than there could be a legitimate identification — as opposed to investigative — need for the practice. And if that was the case, then DNA collection was no different than fingerprinting, and the police could swab and collect DNA without a search warrant. This would be a dangerous Fourth Amendment precedent.

The reasonableness of a search under the Fourth Amendment has always depended on whether the search is reasonably related in scope to the circumstances that justify the search in the first place. But that determination shouldn’t hinge on how long it takes to do the search, but rather what the search reveals. And with DNA searches, an enormous amount of sensitive information is being revealed to the government: a person’s entire genome. Ignoring the breadth of this intrusion by focusing on the ease of collection — implicitly believing the easier it is to intrude into a private place, the less protected it is — elevates form over substance to the detriment of the right of privacy enshrined in the Fourth Amendment.

This dangerous thinking extends beyond DNA collection. We’ve already warned about the problems with warrantless home video surveillance and stingrays, or fake cell phone towers which the government has been very secretive about. As technological advances like these allow the government to easily collect and catalog greater amounts of information, courts run the risk of allowing broader and more intrusive searches to pass Fourth Amendment scrutiny simply because of the possibility of exposure. Instead, courts should be focusing on the actual intrusion and people’s expectation that private information will not be exposed, regardless of how technological advances can make government access easier or faster.

The fact the government can do something now it couldn’t do before doesn’t make it constitutional. In fact, it should be the opposite. As it becomes easier for the government to seize and analyze, institutional checks — like a search warrant — on the government’s power is necessary to protect privacy before it becomes a casualty to technological advances.

Related article

• EFF to Supreme Court: Blanket DNA Collection Violates Fourth Amendment

EFF to Supreme Court: Blanket DNA Collection Violates Fourth Amendment

Law Enforcement Should Not Gather Genetic Information Without a Warrant

EFF | February 4, 2013

San Francisco – The Electronic Frontier Foundation (EFF) urged the Supreme Court Friday to block DNA collection from everyone arrested for a crime, arguing that law enforcement must get a warrant before forcing people to give samples of their genetic material.

EFF’s amicus brief was filed Friday in Maryland v. King – a case challenging a law in the state of Maryland that requires DNA collection from all arrestees, whether they are ultimately convicted of a crime or not. Maryland officials claim that DNA is necessary for definitive identification, but they do not use the sample to “identify” the arrestee. Instead, they use the sample for other investigatory purposes – retaining and repeatedly accessing the wealth of personal information disclosed by an individual’s genetic material despite lacking individualized suspicion connecting the arrestee to another crime. This violates the Fourth Amendment.

“Your DNA is the roadmap to an extraordinary amount of private information about you and your family,” said EFF Staff Attorney Jennifer Lynch. “It contains data on your current health, your potential for disease, and your family background. For government access to personal information this sensitive, the Fourth Amendment requires a warrant.”

In addition to Maryland, 27 states and the federal government have laws that mandate DNA collection from anyone arrested, even if they are not yet convicted of a crime. EFF has filed amicus briefs in a number of cases challenging these unconstitutional laws. Meanwhile, the Supreme Court has shown increasing sensitivity to the power of sophisticated technology to undermine traditional privacy protections.

“Let’s say you were picked up by police at a political protest and arrested, but then released and never convicted of a crime. Under these laws, your genetic material is held in a law enforcement database, often indefinitely,” said EFF Senior Staff Attorney Lee Tien. “This is an unconstitutional search and seizure.”

The Supreme Court is set to hear arguments in Maryland v. King later this month.

For the full brief in Maryland v. King:
https://www.eff.org/document/amicus-brief-16

Contacts:

Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Related Cases

Maryland v. King

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Why are DNA Databases Available to Prosecutors but not Defense Attorneys?

By Matt Bewig | AllGov | January 8, 2013

Hundreds and perhaps thousands of prisoners behind bars for crimes they did not commit could prove their innocence with relative ease—if only prosecutors would let them. Although the American criminal justice system purports to create a level playing field, for example by requiring prosecutors to share relevant information with defense lawyers, only prosecutors have access to the DNA databases that more than 300 former prisoners have used to prove their innocence since 1989.

Operated and maintained by the FBI, the federal Combined DNA Index System (CODIS) database contains data regarding 10 million offenders and 1.3 million arrestees, and is growing at an accelerating rate. At present, however, prosecutors have an iron grip on CODIS and only nine states—Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North Carolina, Ohio and Texas—have laws granting defendants access to DNA databases.

According to defense attorneys and civil libertarians, legal reforms are needed to make the DNA databases equally available to defense lawyers. Steven Benjamin, president of the National Association of Criminal Defense Lawyers, called it “a national problem, a huge and recurring one,” because “juries expect the defense to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the government, but they act like it does. Unless the defense is given access to this information, the playing field remains uneven in criminal justice.”

Even some prosecutors say they agree: “We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into CODIS,” said Scott Burns, executive director of the National District Attorneys Association. “It seems like there should be laws for it, and I agree that the defense should be given the information.”

“You’d think there would be a federal rule or a statute in every state creating the clear obligation to do a CODIS search in any case where the defense wants it,” said Brandon L. Garrett, a professor of law at the University of Virginia.

However, as Garrett has also pointed out, when it comes to prisoners challenging their convictions, prosecutors “are attached to their convictions, and they don’t want to see their work called into question.”

Related articles

• Another False Confession Cleared by DNA (deafinprison.wordpress.com)
• Rapid DNA: Coming Soon to a Police Department or Immigration Office Near You (informationliberation.com)