We have entered a new era in forensic DNA – one that is wrought with serious civil liberties and privacy concerns and may ultimately do little to make people safer. While DNA testing was initially introduced into the criminal justice system as a method of developing supplemental evidence to be used in convicting the guilty or freeing the innocent, in the last fifteen years this has changed. Governments around the world have created permanent collections of DNA taken from ever-widening categories of persons and subjected these collections to routine searches. At the same time, a stunning array of techniques have emerged allowing lab technicians to glean information from DNA that goes well beyond the mere identification of a person who has committed a crime, while the ability to detect and process minute amounts of DNA has steadily increased as costs have declined.
If you think as a law abiding citizen this has nothing to do with you, think again. In a California case, a suit was filed on behalf of Lily Haskell and three other plaintiffs who were forced to turn over DNA samples to police after being arrested at a peace rally in San Francisco. Although she was released without any charges, her DNA profile is now stored in the US Government’s DNA database. Pending a final judicial hearing, the practice remains intact and even applies to victims of domestic violence who are arrested after defending themselves, people wrongfully arrested due to police misconduct, someone who has written a bad check, and people arrested during political demonstrations.
Law enforcement’s use of these tools to search, profile and store the DNA of those who have not been convicted of a crime, without a court order or individualized suspicion, has already exceeded reasonable boundaries of justice. In particular, a number of new genetic techniques and practices are providing law enforcement unprecedented access into the private lives of innocent persons by way of their own genetic data.
These include: 1) a growing trend towards the permanent retention of DNA from innocent people in forensic DNA databanks; 2) trolling for suspects using DNA dragnets; 3) searching for partial matches between crime scene evidence and DNA banks to obtain a list of possible relatives for DNA analysis (“familial searching”); 4) constructing probabilistic profiles of the possible appearance of a perpetrator from DNA collected at a crime scene; and 5) surreptitiously collecting and searching DNA left behind on items such as cigarette butts and coffee cups.
Law enforcement has legitimate reasons for wanting access to DNA. At the same time, privacy in one’s DNA is completely undermined if law enforcement is permitted to use backdoor methods of DNA collection and examine DNA for any and all information about a person, including their personal characteristics and familial characteristics and connections.
Expansions of the uses of DNA by law enforcement are generally occurring in a policy vacuum and then being justified retroactively by a limited number of solved crimes aided by retaining personal information on DNA databases. Aside from the fact that these cases appear to be the exception rather than the rule, what is not revealed by these stories is the larger picture of the steady erosion of privacy that accompanies the shifting purpose of DNA’s use by law enforcement from one of identification to surveillance. Continued use of these techniques and practices outside of the arena of judicial oversight and without the application of ethical guidelines should spark a rigorous debate about the government’s intrusion into the lives of innocent people.