The Senate recently voted to reauthorize the Violence Against Women Act. But nestled in the Act was an amendment by Senator Jon Kyl (R-Arizona) to add arrestee information to the national DNA database. The national DNA database, which is run by the FBI, is called the Combined DNA Index System (“CODIS”), and it includes DNA from over two million convicted criminals. This DNA is used to identify matches with DNA found at crime scenes.
In a press release, Senator Leahy (D-Vermont) states:
Regrettably, this important bill was saddled in Committee with an extraneous and ill-considered amendment, offered by Senator Kyl, relating to the national DNA database. Current law permits States to collect DNA samples from arrested individuals and to include arrestee information in State DNA databases. In addition, States may use arrestee information to search the national DNA database for a possible “hit.” The only thing that States may not do is upload arrestee information into the national database before a person has been formally charged with a crime.
Under the Kyl amendment, arrestee information can go into the national database immediately upon arrest, before formal charges are filed, and even if no charges are ever brought. This adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent. It could also provide an incentive for pretextual and race-based stops and arrests for the purpose of DNA sampling. Congress rejected this very proposal less than a year ago, after extended negotiations and consultation with the Department of Justice.
The Kyl amendment would also make it harder for innocent people to have their DNA expunged from a state database. Under current law, if a State chooses to enter a person’s DNA profile into its database before the person is convicted of a crime, then the State must automatically expunge that information in the event that no conviction is obtained. Under the new language, even a person who is arrested in error and released without charge would need to obtain a court order before his DNA information could be removed from the database.
I’ve always struggled over the issue of DNA databases. While I generally take the pro-privacy positions on many issues, I have yet to find the privacy arguments on DNA databases to be strongly convincing given the limited amount of DNA that is used. Current DNA identification does not involve one’s entire genome; instead, it only involves a small segment of one’s DNA. It is thus not very useful for determining information about a person other than use in identification.
The benefits of using DNA identification are quite significant, since many people who have been wrongly convicted based on erroneous eye witness testimony (which is very unreliable) have been exonerated with DNA. Adding more DNA profiles will improve the database.
Nevertheless, I am very wary of the power the database gives the government. Since we leave trails of our DNA wherever we go, it might be possible to link particular people to particular places. That’s what is done with crime scenes, but what if the use expanded beyond crime scenes?
For those who are unconcerned about the collection of DNA for arrestees, what if the DNA database contained the DNA of all citizens? After all, if it is beneficial in investigating crime and can be extended to arrestees who are later exonerated, why not take the next step and extend it to everybody? Would this pose a problem?
Anytime the database is searched, the DNA profiles are scanned to find a match with the DNA at the crime scene. Should this be understood as a kind of dragnet search under the Fourth Amendment? On the one hand, millions of people’s information is being searched each time the database is used. On the other hand, it is information that is currently limited to serving as identification only.
This is an issue I continue to deliberate over. I thus am not rushing to object to the expansion of the DNA database as a matter of policy. However, I strongly object to the way that this issue is being handled in Congress. Major changes in the DNA database should be made based on extensive Congressional study and debate, not based on sneaky amendments to another Act. In her thoughtful paper on abandoned DNA, Elizabeth Joh (law, U.C. Davis) writes that it “may be that we are already moving toward a system in which the government will have access to the genetic information of everyone in the population, to solve crimes ranging from murders to littering. If we want unrestricted access to DNA information, however, that ought to be the subject of public debate. . . .” Indeed.
Originally posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.
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