LAW FEBRUARY 27, 2013
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This is perhaps the most important criminal procedure case that this Court has heard in decades," Justice Samuel Alito said at yesterday's oral argument in Maryland v. King, which will determine whether the government can seize DNA samples from people at the time they're arrested. "This is what is at stake: lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy." Other justices, however, recognized that the potential privacy invasions are far from minimal: In light of the enormous amount of personal information that can be gleaned from DNA, Justice Sonia Sotomayor noted that "there is something inherently dangerous about DNA collection that is not the same as fingerprinting."
The privacy stakes in the case are obvious from a recent New York Times report that scientists at the University of Connecticut will study the DNA of the Sandy Hook shooter Adam Lanza to see if he had a genetic predisposition to extreme violence. Although the state and federal government repeatedly claimed during the Supreme Court argument that they are currently examining DNA samples only for identification purposes, the Court recognized that they might change their minds in the future. After seizing DNA on arrest, for example, the government might choose to profile a suspect's entire genome more broadly, looking for a predisposition to violence, for example, that could be used to deny people bail or even health insurance.
Given these stakes, Kannon Shanmugam, the lawyer for Alonzo King, a Maryland man whose DNA was seized on his arrest for assault and then was connected to an unsolved rape, argued that the Court should require a warrant before allowing the government to seize the DNA of arrestees. He stressed that the Court has never before accepted the proposition that people who have been arrested have a constitutionally diminished expectation of privacy the way that convicted criminals on probation or parole do.
The Supreme Court has said that warrantless searches are permitted when the government has a "special need" unrelated to the goal of ordinary criminal law enforcement. But the primary purpose of the federal and state DNA databases at the moment is clearly focused on law enforcement—the government wants to search the database to see whether the person who has been arrested is wanted for other unsolved crimes. Yesterday, the government tried to escape from this legal bind by arguing that DNA searches are necessary for pretrial supervision, to see whether someone who has been arrested deserves to be let out on bail. The justices met the claim with skepticism: Justice Elena Kagan noted that in this case, it took four months to get results back from the DNA database about the fact that King was also suspected of rape.
In her rebuttal argument, Katherine Winfree, Maryland's chief deputy attorney general, said the technology would soon change. "On the question of rapid DNA," she said, "the FBI estimates that we're about 18 to 24 months away from that world," where devices will be able to analyze and produce DNA identification within ninety minutes rather than four months. But the figure appears nowhere in the Supreme Court briefs and seems to have been pulled out of thin air. The Global Alliance for Rapid DNA Testing, which manufactures rapid DNA testing machines filed a brief that said nothing about how quickly the technology will develop, and the FBI's discussion of rapid DNA testing on its website says that "At this time, it is not known when law enforcement agencies will be able to search profiles developed by a Rapid DNA instrument in CODIS."
Might five justices strike down Maryland's DNA collection statute, which would require a redrafting of the laws of 29 states, as well as the regulations governing the federal DNA database? It’s possible, given the skeptical questions of Justice Antonin Scalia as well as Chief Justice Roberts and Justice Anthony Kennedy. Winfree said that since 2009, when it began testing the DNA of people arrested for violent crimes, Maryland had obtained "225 matches, 75 prosecutions and 42 convictions." Scalia responded: "Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. That proves absolutely nothing."
Scalia took a similar position during the oral arguments of a recently decided case U.S v. Baily, where he joined Justice Kennedy’s 6-3 decision holding that the government couldn't detain a suspect nearly a mile from his house while preparing to execute a search warrant on his house. The fact that a warrantless search may be useful to the government, Scalia suggested, doesn’t make it constitutional. And in fact, even the usefulness of warrantless DNA searches is open to question: A recent AP report found that 29 of the 43 convictions Maryland claims were aided by DNA searches would have happened even if the state hadn’t extended its law to arrestees, since these suspects were ultimately convicted of the offense for which they were arrested, rather than for an unrelated crime. Under the old law, Maryland could have tested the DNA of these people anyway; it just would have had to wait until they were convicted.
A similarly bipartisan majority of justices might rule in favor of restricting the warrantless collection of DNA from arrestees. But that would hardly put an end to the FBI's Combined DNA Index System, or CODIS database, which is the national DNA database into which the state databases feed. Instead, the government could go back to the drawing board and restructure the CODIS database so it's used primarily to identify suspects (by collecting abandoned DNA at crime scenes and then plugging into CODIS to generate a name) rather than checking whether a particular suspect is also wanted for an unsolved crime. The government could, for example, add a suspect’s DNA profile to the existing national fingerprint database, known as the Integrated Automatic Fingerprint Identification System, or IAFUS. If generating cold hits on unrelated crimes was an incidental purpose of the federal database, rather than its primary purpose, the Court might be more likely to uphold its constitutionality.
But this restructuring of the federal database would only increase the privacy concerns: As the government moves to integrate all the identifying information it holds on citizens into a single national database, the incentives to test an individual’s entire genome for identifying information will grow exponentially. The government is free at the moment to collect DNA that people have unwittingly abandoned on coffee cups or at a crime scene. And the next generation of genetic testing will allow it to use this abandoned DNA to identify the racial and ethnic background of a suspect with unsettling precision. A DNA test for "biogeographic ancestry" traits, for example, has been able to identify, from abandoned DNA samples, not only the sex and appearance of suspects, but also the precise ethnic background of their parents. These techniques could indeed be useful in solving crime, but they also threaten to lead to the kind of genetic profiling that Connecticut is attempting in the wake of the Sandy Hook shooting.
The Court can't solve these future challenges on its own, but by ruling narrowly for Alonzo King, it might encourage Congress and the states to begin the difficult process of passing new laws allowing the use of DNA for solving existing crimes, but prohibiting its use for the prediction of future crimes. As Justice Kagan succinctly put it yesterday, "it seems as though the technology is not the same as the fingerprint technology; and because the technology is different, it is used differently."
12 comments
"This is what is at stake: lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy." The post says the fellow was arrested and accused of assault. A warrantless seizure of saliva or blood might be okay if all the subject's blood or saliva was about to be destroyed, leaving nothing for testing. With a search warrant, samples of saliva or blood might be obtained for testing provided the sample could produce evidence of the individual's guilt or innocence of the crime for which they had been arrested.
- Doug12
February 27, 2013 at 8:47pm
I find it difficult to get upset at the prospect of DNA collection without a warrant. One can argue the theory, but even being in a general database would not affect my behavior, as, say, being spied upon would. Yes, it is a different technology than fingerprinting, and certain uses might be offensive or unconstitutional. Use for identification purposes, however, I find it hard to see the difference. If they arrest someone, take his prints, and then trace him to an unsolved crime where fingerprints were left, what's the difference?
- roidubouloi
February 28, 2013 at 8:47am
2,28,13,5:41, pm, est/// I find the analogy to finger printing helpful in thinking generally about the issue. /////Arrestees are fingerprinted as a matter of course and then the fingerprints are used for identification, go into a central data bank, and then are resorted to in investigation. This all "passes muster," as they say, under the Fourth Amendment.//// To wit: : 'The Fourth Amendment does not bar the fingerprinting of a properly seized person. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search." See Davis v. Mississippi, 394 U.S. 721, 727 (1969). So long as the initial seizure of the person is reasonable, as in a lawful arrest, subsequent fingerprinting is permissible. It is also possible that the requirements of the Fourth Amendment could be met through "narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause for arrest." See Davis v. Mississippi, supra, at 728; see also Hayes v. Florida, 470 U.S. 811 (1985).'///So from what I quoted it seems that fingerprinting isn't a" search." The physicality of taking a swab of DNA seems not much more intrusive than fingerprinting but, as cited, "Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search." DNA, however, yields a person's genome. So a threshold question is whether taking a DNA sample is a search. "A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." It's hard for me to imagine that taking a DNA sample isn't presumptively a search, given the store of information latent in the sample, and in contrast with fingerprinting being merely identificatory. Therefore, it seems, the question becomes whether arrestees of serious crimes have a reasonable expectation of privacy in relation to the sampling of their DNA. In this regard, as Rosen notes, King's lawyer argued "...that the Court has never before accepted the proposition that people who have been arrested have a constitutionally diminished expectation of privacy the way that convicted criminals on probation or parole do." (I don't know whether that is an accurate proposition.)/// So if the 4th Amendment is implicated by DNA sampling in a way it isn't by fingerprinting, the question is, it seems obvious to say, is reasonableness in balancing privacy concerns against law enforcement efficiencies. For myself, given what DNA samples reveal, and assuming the as-quoted proposition King's lawyer asserted is so, it's hard to imagine as a general ok being given to warrantless DNA sampling. If so, warrants then provide the balance between the patent intrusiveness of DNA sampling and it as an invaluable aid to law enforcement.///I'm not an American lawyer. So if some of what I say is off base, I'd be pleased to be corrected.///
- basman
February 28, 2013 at 5:41pm
That's all formally correct, basman, and a perfectly coherent argument, but I don't really think that what is revealed about a person in his genome is really the issue. Law enforcement isn't using DNA to diagnose attention deficit disorder. Indeed, I can't even think of a possible purpose other than ID. What do you think they could possibly do with it other than ID people? There is no routine power to fingerprint people who have not been arrested. Why? Without arrest, routine fingerprinting would be an illegal intrusion on the reasonable expectation of privacy. Is this really about diminished expectations of privacy as a consequence of being arrested? I don't think generalized DNA sampling is what is at stake, only the definitive ID of someone arrested and the ability to link that person to other crimes. The rest just seems to me to be rhetoric that doesn't actually relate to what is actually occurring -- DNA sampled for ID purposes. I don't think a Q-tip swap of the inside of the cheek is more intrusive than having one's fingerprints taken.
- roidubouloi
February 28, 2013 at 8:44pm
3,1,13, 11:15 am est///I think the facts of the King case belie your point. Apparently when they had King under arrest, they already knew who he was. It's just that the impugned Maryland law allowed them with impunity to take his DNA, which was then used to connect him up with the rape. The intrusiveness of the procedure here isn't the point. The point as noted is what is revealed about the entire physical make up of the person including possibly propensity. That as noted is the point differentiating it from fingerprinting. The question is what information about people is to get lodged with the state , its lack of benignity assumed by the Fourth Amendment.
- basman
March 1, 2013 at 11:18am
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Okay, so we agree that taking DNA is not intrusive. But the "propensity" claim is a red-herring. There is no established or even arguable genetic basis for propensity to commit crimes, no liability that attaches thereto (unless someone is convicted of a crime), and no basis to introduce so-called genetic evidence of propensity for the purpose of obtaining a conviction. And the DNA was not used for any such purpose of to reveal anything about the guy's genome. It was used for exactly the same reason that fingerprints are used, to connect arrestees to other outstanding crimes and warrants, to create a data base useful in the case of any future commission of a a crime, and to assure foolproof identification. If the guy had left fingerprints at the scene of a the rape, had not been in any data base, was arrested and fingerprinted, he could have been connected to the rape. What's the functional difference? None, as far as I can see. That there are some sort of medical conditions that could in theory be identified seems completely irrelevant to the facts of the case: use of DNA for ID that can connect the arrestee to other crimes and outstanding warrants. If we accept routine fingerprinting -- including prints that stay in the database if the arrestee is never convicted, I still don't see the difference.
- roidubouloi
March 1, 2013 at 12:06pm
By the way, I have been printed numerous times, in connection with obtaining securities licenses and in connection with adoption. It has had absolutely no effect on my life, thoughts, behavior or sense of privacy. I am aware that if I now want to start a life of crime, I have to wear gloves. Is the objection to DNA that there is "no defense" in the sense of no ability to commit crimes while ensuring that one does not leave DNA about, or that one's semen might accidentally be deposited in the victim of a rape of which one is innocent? What concrete value is being protected by creating procedural hurdles to collecting DNA from arrestees? The first bite at the apple, the ability to commit one crime without being already on record?
- roidubouloi
March 1, 2013 at 12:10pm
Let me try that another way. We do not require that there be fingerprint evidence at the scene of a crime before we fingerprint arrestees. Nor do we require conviction to keep the fingerprints or to check them against the database of unsolved crimes. Thus, there would be no basis for a search warrant, as in probable cause to believe that evidence of the crime under investigation would or might be obtained thereby. If fingerprints turn up at the scene later, the guys fingerprints will still be around to take, not destroyed any more than his saliva or blood. Yet we permit routine fingerprinting for the purpose of definitive ID and connection to other crimes. Why not DNA?
- roidubouloi
March 1, 2013 at 12:13pm
3,1,13, 1:40 pm, est///Where I think your argument falls down is in hewing too closely to the analogy of fingerprints. The succinct point is that, as Sotomayor os quoted as saying, "there is something inherently dangerous about DNA collection that is not the same as fingerprinting." I take it she meant the inherent dangerousness of the state having all that latent information at its disposal, a privacy concern writ large. For what could be more private than the entirety of your physical being? ////Fingerprinting, again, isn't a search because nothing gets revealed beyond identification through fingerprints. In that sense, they are what they are. There's no Fourth Amendment issue with them because of that. But there is a Fourth Amendment issue with the state coming on my cell phone blocked by a password and not one with it coming on to it not blocked, the former evidencing my expectation of privacy, the latter not--so says the case law. What is there in my pass word blocked cell phone, that's comparable with the state having my DNA in a central bank and the means of knowing everything physical about me, including more things as the know how gets better? Why does the blocked cell phone create an issue that my DNA sample does not? //// I don't think it's an answer to say central collection isn't the issue. It's precisely a fundamental part of the issue, the state having all that latent knowledge about me, to do with what it will, whatever it will, its benignity in these matters not conceded . ////One final point (for now.) You're arguing, at least in strong part, from the effectiveness of crime prevention. But that's not the issue.
- basman
March 1, 2013 at 1:54pm
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I'm not basing my argument on the value for fighting crime but on the closeness to the analogy to fingerprints. W agree that the collection is not materially more intrusive than fingerprinting. You appear to agree that if the only use were ID, not to determine all sorts of possibly interesting things about the person, then there would be a sufficiently close analogy to fingerprinting. Well then, take a look at this: http://www.nature.com/scitable/topicpage/forensics-dna-fingerprinting-and-codis-736. The information used for ID purposes has nothing to say about the particular genes of the person, often does not even use genetic material that encode a phenotypic trait. So, if the sample itself were required to be disposed of, leaving only the "fingerprint" information in the database, would that persuade you? Of course, evidence from a crime scene would be preserved and, if it appeared relevant, the state could go back and obtain from the orginal arrestee a sample for either confirmation purposes or phenotypic purposes. But that would be with a warrant. In this manner, the process is completely stripped of the theoretical potential for exploring the inner workings of the arrestee's body and has no use other than for ID. Any problem under those circumstances?
- roidubouloi
March 1, 2013 at 4:42pm
3,2,13, 10:40 am, est/// Roi, these comments don't allow links to function and when I tried to past the link into my browser, it failed to yield a specif article. I tried Nature and the topic but couldn't find anything current nor anything I could get free. So if I had to balance eating today with a stab in the dark at a possible article, I like an animal went for the food.///if the conditions you describe could obtain, I think my concerns would be satisfied./// But can I reverse the question:"...if the process (can't be) completely stripped of the theoretical potential for exploring the inner workings of the arrestee's body ...Any problem under those circumstances? ”///Pleasure in any event to speak with you.
- basman
March 2, 2013 at 10:39am
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Basman, I tried pasting it and it worked. Just don't take the period at the end. Or you can paste it into google and surely find it. As to your question, I highly doubt there is any purpose served by mapping some accused gene's beyond ID. At least I can't think of one. But, if there were, there is certainly no need for a warrantless search of someone's DNA in this respect. The purpose should be established -- that it could somehow lead to relevant evidence -- and there is surely no urgency. The person's DNA isn't going anywhere unless they are. So, if the process cannot be stripped of gene-mapping potential (for which law enforcement doesn't have the resources in any case), then a warrant should be required. But I really don't think that is the case. If they test the 13 regions that they use for ID (a lot of which is apparently junk DNA - no relation to phenotype -- see the article) and then have to discard the sample (not like they cannot get another sample if they need it), I just don't see any issue here in keeping that limited data as a reference or using it for ID purposes. Seems indistinguishable from fingerprinting to me. Just a bunch of numbers. Of course, one might argue that they should not be able to take an arrestee's fingerprints without a warrant, but that would be a very different argument, one that was decided a long time ago. Very good to talk to you too. Cheers!
- roidubouloi
March 2, 2013 at 1:39pm