To date, there is no evidence that any state has thus far permitted its forensic DNA data banks to be used for medical or behavioral research. In her analysis of the 50 state statutes Bressler concludes:
A more careful reading of the statutes reveals that only one state allows for medical research with records (and they must be anonymized) and that no state allows for medical research with samples. The repeated assertions that many states allow researchers to use DNA samples from convicted offenders to be used in medical research—with or without consent—are incorrect.27
Although these arguments are noteworthy, it is also the case that current statutory restrictions are at best unclear, untested, and open to interpretation. Perhaps more important, statutes can be repealed or amended. If there is legitimate knowledge to be gained, will current restraints hold back the scientific pressures for access to public data? For example, if genetic screening of stored DNA samples could reveal whether individuals were “genetically predisposed” to criminal offending, would it be allowed? Consider, for example, a subset of felons convicted of pedophilia. If the database for that group of felons contains information about convictions, medical history, family associations, and profiles of crime victims and also has the pedophile’s complete genome from a biological sample, there almost certainly would be medical and/or behavioral geneticists who would want to pursue the question whether pedophilia has a genetic basis. Although pedophiles appear to be highly recidivistic—having almost a compulsion suggesting a biological mechanism—that is a huge step from a genetic mechanism. There is also the prospect that a genetic-based crime-control strategy could ultimately include mandatory genetic screening from birth to identify individuals predisposed to certain so-called undesirable behaviors. Those who support such access see scientific merit in research that links genes to impulsiveness, aggressiveness, pedophilia, or novelty seeking and believe that ethics review boards can adequately oversee such uses of databases.28
In England, where, as is the case in the United States, the government contracts out some of its DNA analysis, concerns have been raised about private companies sharing DNA samples collected for forensic purposes with researchers. In 2006 the London Observer reported that a “private firm has secretly been keeping the genetic samples and personal details of hundreds of thousands of arrested people.” The British Home Office has given permission for 20 research studies using DNA samples from the National DNA Database (NDNAD). The goal of some of the studies is to determine whether it is possible to predict a suspect’s ethnic background or skin color from his or her DNA.29
A report issued by the public-interest group GeneWatch UK noted that British researchers who have access to the national DNA forensic database
do not have to seek consent from participants or the approval of independent ethics committees to carry out their research. They have only to seek permission from the NDNAD Board. . . . Some of the research could be highly controversial, for example research on ethnicity and race . . . or research on “genes for criminality.”30
GeneWatch UK has gone on record proposing that any research on the NDNAD should be reviewed by an independent ethics board to ensure that the research is morally and socially acceptable and that consent should be received in advance of the research by those whose DNA profile or biological source is part of the study.31
It is clear that the only sure way to prevent any misuses of the stored samples is to destroy the samples themselves. No one proposes destroying the crime-scene samples, since these might be the only evidence from the scene of the crime and the accuracy of the analysis could be contested. However, individual samples collected from known offenders or arrestees are another matter. A number of advocacy organizations, including the American Civil Liberties Union (ACLU), and ethics advisory committees have proposed destroying the known-offender biological samples after DNA typing is completed as a way of preventing possible misuse. Law enforcement has argued that the samples need to be retained for reasons of quality assurance (most significantly for retesting a sample in case of a mix-up) or to rerun the samples for purposes of upgrading the system (for example, for profiling a larger number of genetic markers). The U.K. Human Genetics Commission’s 2009 report found these arguments unpersuasive:
We cannot see any need for long-term retention of subject samples, for the following reasons: if the identity and whereabouts of the subject are known, it will be possible, and not disproportionately expensive or difficult, to obtain a new sample for analysis; conversely, if the subject’s whereabouts are not known, having a DNA sample is unlikely to assist in locating them; and finally, the argument that there may be a future need to upgrade the profiles by analyzing more loci is unconvincing.32
Fourth Amendment Protection: Trends in Case Law on DNA Data Banking
The Fourth Amendment to the U.S. Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” For nearly 200 years courts limited the scope of this amendment by holding that it protected only against physical intrusions—for example, the entry into a house or the seizure and examination of private papers. Thus in 1928 the Supreme Court held that government wiretapping of a telephone call did not constitute a “search” or a “seizure” and was therefore not even subject to any Fourth Amendment scrutiny.33
This changed in 1967 when that same Court decided Katz v. United States. Charles Katz was convicted in California of illegal gambling. The crucial evidence against him was a series of recordings that the FBI had made, without a warrant, of calls Katz had made from a public pay phone booth in Los Angeles. Katz challenged his conviction, arguing that the recordings could not be used against him, and the case made its way up to the Supreme Court. By a vote of 8 to 1 the Court overruled its prior cases and ruled in favor of Katz, holding that the government had violated Katz’s Fourth Amendment rights by secretly recording his private phone calls without a warrant.34
Katz extended the reach of the Fourth Amendment beyond physical intrusions. Writing the majority opinion, Justice Potter Stewart stated that “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, when in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”35 The Court refused to continue to take the “narrow view” that the “search and seizure” language in the Constitution was meant only to protect against physical penetration of private, delineated space or objects and ruled that the Fourth Amendment protects people’s concept of personal privacy: “The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no Constitutional significance.”36
The Katz standard provides the controlling test for determining whether government action constitutes a Fourth Amendment search: first, that a person have exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society would recognize as reasonable. Government actions that intrude into these “reasonable expectations of privacy” are searches and therefore constitutional only if the government can show that they are reasonable. The Fourth Amendment also prohibits unreasonable seizures, whether those seizures be of property or of the person (or his or her bodily tissue).
How does the concept of privacy as articulated in Katz apply to DNA data banking and forensic DNA applications? Because the Fourth Amendment protects against “unreasonable” searches and seizures, courts must assess not only whether a search has occurred but also the reasonableness of that search. Is the taking of DNA a “search”? Is it a “seizure”? If so, is it reasonable under any circumstances? Is a warrant required? Do we have an “expectation of privacy” in our DNA? How is that expectation balanced against the public benefits of DNA collection for purposes of criminal inv
estigation?
The Taking of DNA Constitutes a Search and a Seizure
A law-enforcement officer’s sticking a needle into a person’s arm for a blood sample against his or her will without evidence of suspicion is generally regarded as a violation of his or her privacy. The limits of taking blood samples forcibly were the issue in the U.S. Supreme Court case Schmerber v. California (see box 14.3), where the majority stated, “The interests in human dignity and privacy which the Fourth Amendment protects, forbids any such intrusions [blood samples] on the mere chance that desired evidence might be obtained.”37 Although the Court in Schmerber found that a blood test presents only a minimal intrusion, it nonetheless held that in order for the police to take a biological sample from an arrestee, they must either have a warrant or have probable cause to think that the sample will yield evidence of a crime and that exigent circumstances exist that make it impracticable to procure a warrant. The Court has found that similar collections of bodily fluids or tissues for analysis—such as urine tests,38 breath tests,39 and fingernail scrapings—are similarly privacy intrusions that constitute a “search.”40
BOX 14.3 Schmerber v. California
Armando Schmerber was taken to the hospital after he had been involved in a traffic accident. The hospital performed blood tests involuntarily, which police used to determine whether Schmerber had been driving while intoxicated. He argued that the police had invaded his privacy by obtaining his blood and testing its alcohol level. The court ruled that the defendant exhibited physical features that gave police probable cause to believe that he was intoxicated and that police did not have time to obtain a warrant. Police argued they were under exigent circumstances that justified their warrantless search. The court agreed: “We today hold that the Constitution does not forbid the State minor intrusions into an individual’s body under stringently limited conditions, [which] in no way indicates that it permits more substantial intrusions, or intrusions under other circumstances.”a
a Schmerber v. California, 384 U.S. 757 (1966).
Source: Authors.
Following the analysis in Schmerber, lower courts have consistently held that the taking and analysis of DNA constitutes a “search.” Most courts have focused, as in Schmerber, on the physical intrusion associated with the collection of DNA by way of either a blood draw or a buccal swab. Considerably less attention has been paid to the informational privacy aspect of DNA collection and analysis and the notion that the DNA profiles are subjected to ongoing, repeated searches, although some courts have acknowledged this aspect as well.41
Generally speaking, the Fourth Amendment requires that searches be supported by a warrant, issued by a magistrate only upon a factual showing that the search will likely uncover evidence of a crime. Over the years the courts have carved out a number of exceptions to this warrant requirement (for example, allowing police to stop and frisk people whom they have reason to think are armed and dangerous, and to search cars when they have probable cause to think the car contains contraband or evidence of a crime). Generally, the more intrusive the government action, the higher its burden is to justify that action. Thus a brief traffic stop requires less justification than does a search, and some searches—such as those requiring dangerous surgery—are per se unreasonable. But even for the most minor intrusion, the law is clear that searches and seizures for general law-enforcement purposes must be supported by some level of individualized suspicion.
When DNA was first introduced into forensic evidence around 1986, blood samples were the main source. As forensic DNA testing has shifted from blood draws to buccal swabs, its perceived level of intrusiveness has dropped precipitously. Nevertheless, courts have generally found that forcible collection of DNA by use of a buccal swab constitutes a “search” requiring a warrant or at least probable cause. Furthermore, because the later analysis of the sample reveals information about a person’s genetic makeup—information that we as a society consider private—that analysis is itself a search.
Evolving Case Law on DNA Data Banks
Although there is little question that DNA collection and analysis constitutes a “search,” all twelve circuits have nonetheless upheld mandatory DNA collection statutes that apply to convicted offenders. In so doing, the courts have judged the reasonableness of the search by balancing the interests of the government against the privacy of the individuals involved. In weighing these interests, some courts have found that the government’s interest in maintaining a DNA database of convicted offenders is one of “special needs, beyond the normal needs for law enforcement.” These cases follow the reasoning in Skinner v. Railway Labor Executives’ Association, where the U.S. Supreme Court upheld the collection of blood, breath, and urine samples from employees in safety-sensitive positions for purposes of randomized drug testing, without a warrant, probable cause, or individualized suspicion. Although the Court recognized that these tests were “searches” that invaded the defendants’ reasonable expectation of privacy, it nonetheless upheld the testing program on the notion that it was not for general law-enforcement purposes but, instead, to investigate railroad accidents and to prevent injuries.
The Second, Seventh, and Tenth Circuits have each relied on the special-needs exception in upholding state DNA databasing of convicted offenders. Rothstein and Carnahan have questioned this line of reasoning as applied to database statutes, since it is hard to understand the purposes of DNA collection in these contexts—identification, investigation, and prosecution of criminals—as anything other than law enforcement.42 After all, the mission statement of CODIS explicitly states that it was created for law enforcement purposes, and many of the state statutes describe the database as a “powerful law enforcement tool.” Although the courts that have applied the special-needs exception have, in some cases, acknowledged that DNA testing of inmates is ultimately for a law-enforcement goal, they have concluded that this falls within the special-needs analysis because “it is not undertaken for the investigation of a specific crime.”43
In recognizing the inherent tension in applying the special-needs exception to a law-enforcement database, some courts have avoided this line of reasoning and have instead upheld convicted-offender databases on the notion that persons under supervision of the criminal justice system following conviction have a “reduced expectation of privacy.” For example, in United States v. Kincade a majority of the Court explicitly ruled that the special-needs exception could not justify DNA-collection schemes. Nonetheless, the court found that “parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public.”44 Just as the police can enter and search the house of a person on parole without a warrant or even any reason to think the resident has done anything wrong, they can intrude upon his genetic privacy and bodily integrity.
Courts that have followed this general balancing scheme in upholding DNA data banks have tended to analogize DNA testing to “fingerprinting,” focusing narrowly on the use of DNA for “identification,” and have largely ignored potential uses or misuses of stored biological samples. In Rise v. Oregon, for example, the Ninth Circuit found that once a person is convicted, one’s identity is a matter of state interest, and the offender “has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.”45
The Question of Innocent Persons: Arrestees, Suspects, and Family Members
Although it appears that the question whether DNA can be collected and permanently stored from convicted felons is thoroughly decided, the issue whether the reaches of DNA data banks that extend to innocent persons can withstand constitutional muster is another matter. The court rulings that have upheld DNA data banking of convicted offenders do not provide law enforcement a blanket justification to collect and use DNA without limits. As a matter of policy, for a society that values freedom and individual privacy, the notion that innocent individuals should not have DNA taken without their knowledge or consent or
retained permanently in a database, seems consistent with other protections against law enforcement’s unfettered acquisition of personal information. But states and the federal government are giving law-enforcement agencies authority to override personal privacy as DNA data banks are expanded to arrestees, DNA is collected surreptitiously in the course of investigations, and DNA databases are mined for partial matches.
In following the reasoning of the courts in upholding DNA statutes of convicted felons, it is hard to see how the routine, forcible collection of DNA from arrestees—who are innocent under the law—could be tolerated. To date, of the four courts that have considered this issue, three have determined that the routine collection of DNA from arrestees is unconstitutional. In 2006 Minnesota’s Court of Appeals held that taking DNA from juveniles and adults who have had a probable-cause determination on a charged offense but who have not been convicted violates state and federal constitutional prohibitions against unreasonable searches and seizures. Similarly, in 2009 the federal District Court of Western Pennsylvania, consistent with the long-standing recognition that arrestees enjoy the presumption of innocence and give up only those rights whose infringement is necessary to ensure jail security and safety, struck down the federal law allowing the testing of arrestees. The court found that “requiring a charged defendant to submit a DNA sample for analysis and inclusion in CODIS without independent suspicion or a warrant unreasonably intrudes on such defendant’s expectation of privacy and is invalid under the Fourth Amendment.”46 In contrast, the Virginia Supreme Court upheld DNA collection from suspects alleged to be violent felons, finding that because DNA can be used to identify a person, taking DNA from an arrestee “is no different in character than acquiring fingerprints upon arrest.”47
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