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Privacy of Genetic Information

An interesting issue is emerging in a Seattle case involving the extent to which the police can use ploys to gather people’s DNA.  According to a news story:

A judge has upheld a ploy by Seattle police detectives to get a slaying suspect to send his DNA to them — leading to a first-degree murder charge in a 20-year-old case.

King County Superior Court Judge Sharon Armstrong ruled that police did not violate John Athan’s privacy or other rights by sending the New Jersey man a phony letter saying he was eligible for money in a class-action lawsuit over parking tickets. Athan responded to the letter — and licked an envelope, leaving saliva that provided his DNA.

That DNA was matched to evidence from the 1982 killing of 13-year-old Kristen Sumstad, whose body was found dumped in a box behind a Seattle store.

Athan’s attorney had asked the judge to either throw out the DNA evidence or dismiss the case. Armstrong refused. She agreed that the police broke the law by pretending to be lawyers, but said police are allowed to do that to catch criminals.

The judge also found that while people may expect their letters to be private, that expectation doesn’t apply to the envelope they use.

This case raises some interesting issues:

  1. To what extent does a person have a reasonable expectation of privacy in his or her DNA?Existing Supreme Court caselaw holds that if items are discarded in the trash or exposed to others, then people lack a reasonable expectation of privacy in them, and the Fourth Amendment does not provide any protection.  The problem with these holdings is that they never contemplated DNA.  We scatter our DNA about throughout the day; and if the police want to, they can gather people’s DNA from discarded items or through many other methods, including the one used in this case.  The police can thus gather people’s DNA readily without a warrant, without probable cause, and without even a subpoena or any legal process.  This situation demonstrates why existing Fourth Amendment doctrines don’t adequately address modern issues involving information.  Should there be some level of regulation for the police gathering of DNA from particular suspects?  (And no, Orin Kerr, this doesn’t suggest that statutory law is better than the Fourth Amendment, because there are no statutes governing this conduct either).
  2. To what extent should the police be able to engage in criminal activity to catch criminals?Here, the police were engaging in fraud.  Similar kinds of issues arise in other kinds of police investigations.  The open fields doctrine allows police who engage in trespass onto people’s land to nevertheless use evidence that they discover.  Should the Fourth Amendment be interpreted to exclude evidence when the police violate the law?

 

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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.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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