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May. 29 2009 - 4:45 pm | 14 views | 0 recommendations | 1 comment

Criminal DNA databases get a constitutional stamp of approval

From left to right, the structures of A, B and...

Booking for those accused of felonies can include photos, fingerprinting, and DNA sampling.

It’s a step forward for those who believe in efficient law enforcement and a step backward for those worried about living in a genetic surveillance society:

A California federal judge ruled Thursday that mandatory DNA collection for all individuals facing federal felony charges is constitutional, dealing a setback to civil liberties advocates.

U.S. District Court Judge Gregory G. Hollows upheld the DNA Fingerprint Act, a 2006 law which allows federal law enforcement officials to collect DNA from individuals “arrested, facing charges, or convicted” of federal offenses.

Previously, states throughout the country had a variety of different laws on the books regarding DNA collection—with most mandating testing only after a suspect had been convicted of a crime.

via Judge Upholds Mandatory DNA Testing for Felony Suspects – Political News – FOXNews.com.

The New York Times reported last month that the F.B.I. and fifteen states have been compiling criminal DNA databases that already include millions of profiles.

Making law enforcement more efficient seems like a good thing. Is a DNA fingerprint any more personal/invasive than the usual ink-on-the-fingertips kind? It has the benefit of being less messy after all. Just a little swab test.

But DNA is different from a fingerprint. You can’t do a paternity test with a fingerprint. A few months back, Jeffrey Rosen pointed out in Slate that DNA from family members is linked, meaning the breadth of the database is greater than it first appears.

Ordinarily, when searching for actual offenders, the British police look for a perfect match to a DNA profile that contains 10 pairs of peaks, or “alleles,” with one number in each pair provided by the father and the other by the mother. Only identical twins share genetic profiles on all 20 alleles, so if you get a perfect match between the DNA you find at the scene and the DNA database profile, you have very strong evidence that the person in the database committed the crime. But the police can also program the search to look for partial matches, identifying profiles that are similar but not identical to those in the database. A partial match can suggest that the person in the database didn’t commit the crime, but a close relative whose DNA pattern varies slightly on some of the 20 alleles may have done so.

via Genetic surveillance for all? – By Jeffrey Rosen – Slate Magazine.

Rosen points out later in the article that the main constitutional argument against genetic familial searches is that they violate the Fourth Amendment prohibiting law enforcement searches without individualized suspicion of wrongdoing:

[I]n the case of a familial search, the police already know that no one in the database committed the crime. On the other hand, if a familial search is backed up by a YSTR test, it seems less troubling from a privacy point of view because this means the name of a family member will be released for investigation only when there’s a high probability that the person is connected to the crime scene. Courts have often said that searches are reasonable when they’re highly effective at identifying the guilty and don’t invade the privacy of the innocent.

For now, looks like the courts are on the side of DNA sampling being part of a reasonable search and seizure.

DNA collection is a touchy subject. It’s somewhat less touchy when talking about convicts and suspected felons. Once we accept that collection, where will this lead us? Will there be a day when all of our genetic information will be filed away?

It doesn’t seem like a completely crazy idea. The benefits are not limited to safety and security; medical and science types get pretty excited thinking about the idea of a universal genetic database. And sometimes they’re just making it happen with or without permission, such as in Minnesota:

Nine families have filed a lawsuit against Minnesota’s health department over its practice of collecting DNA from newborns and then keeping and using the private information…

Agency spokesman John Stine said the lawsuit was being reviewed, but he confirmed the department takes the blood samples from about 70,000 infants annually, and unless the parents specifically choose to opt out of the program, their children’s DNA is saved…

The case alleges “as of December 31, 2008, Defendant Minnesota Department of Health had stored 819,282 dried blood spot baby samples; had stored 1,567,133 records of the results of newborn genetic screening; and had used 52,519 dried blood spot samples for research.”

via World Net Daily

How protective are you of your DNA? Does this totally freak you out? If so, avoid having your baby in Minnesota or doing anything that might be interpreted as a felony. But that’s good advice regardless of DNA fears.


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    I am a writer, reporter, editor and blogger. I'm an editor at Above The Law, where I blog about lawyers, judges, law firms and the legal industry. Here at True/Slant, I write about our changing notions of privacy.

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