DNA and distrust.

• Author: Abrams, Kerry
• Position: II. Comparing Approaches Towards Genetic Identity B. Identification Testing: DNA and Criminal Law 4. The Supreme Court Steps Away through Conclusion, with footnotes, p. 785-813

4. The Supreme Court Steps Away

   Some of these policy dynamics, in which a focus on data generated too much information and not always the right kinds, and raising still additional individual rights concerns, might have been mitigated had the judiciary chosen to intervene. In Maryland v. King, however, the U.S. Supreme Court found suspicionless searches of arrestees permissible under the Fourth Amendment, justifying taking DNA from arrestees as a matter of identifying them for "routine booking" purposes. (142) Yet, as Justice Antonin Scalia made clear in a forceful dissent, adding an arrestee profile to the national DNA databank does not help police identify the person at all: the sole purpose, since these people are searched as against unsolved crime scene profiles, is to solve unsolved crimes. As Justice Scalia put it: "The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous." (143) Indeed, the majority admitted that the reason to take DNA is "for the sole purpose of generating a unique identifying number against which future samples may be matched." (144) There is no disagreement that people convicted of crimes can be searched in that manner, but it is far from clear that it helps police much to additionally search people arrested but not convicted (indeed, those people are far more likely to be the ones who were wrongly arrested). But for the Court to say that permanent DNA searching of people based on an arrest is nothing more than "an extension of methods of identification long used" is simply unsupported if not disingenuous. (145)

   Far more direct in its reasoning was a lower court decision citing to a government interest in "the development and maintenance of a DNA database to assist in the solving of past and prospective crimes." (146) That ruling was a challenge to taking DNA from persons on probation, who traditionally have fewer expectations of privacy. The judge found it too "speculative" to assert an interest in the need to monitor an individual like the plaintiff, who had engaged in misuse of Social Security benefits, not a crime for which DNA testing would be useful to solve. (147) That decision was reversed by the First Circuit, which used reasoning prefiguring King, holding that absent evidence of "demonstrated misuse of the DNA samples" or predictive "new uses" for the DNA tested, DNA tests were permitted. (148)

   Some implications of the King ruling are quite troubling. Vast numbers of people, as many as one-third of Americans, have been arrested by age twenty-three, not including for traffic offenses. (149) Now any person arrested for a "serious" offense can have their DNA taken, even if charges are later reduced, or dropped, or the person is acquitted. The Court nowhere defines a "serious" offense (indeed, the Court may mean to include traffic offenses, which are named in the majority opinion as examples of crimes for which serious offenders might be stopped but remain undetected by the police). (150) The Ninth Circuit, sitting en banc, relied on King to find constitutional a California statute requiring DNA testing of persons arrested for any felony. (151) And the Supreme Court's rulings on what counts as probable cause for arrest, combined with broad criminal statutes, mean police will have nearly unfettered authority to obtain DNA samples. (152)

   This dragnet will not help to solve many more crimes, for all of the reasons already described, even if crime solving was a permissible reason to conduct suspicionless searches under the Fourth Amendment. States like California, which had already expanded DNA databanks to include arrestees, did not generate many more matches between offenders and crime scenes, even as compared to states like New York and Illinois with much smaller databases. Why? As researchers at the RAND Corporation found, New York and Illinois still enter crime scene samples at rates comparable to California's. (153) Adding more samples from crime scenes, not taking DNA from low-level arrestees, solves more cases. (154) As Erin Murphy and one of us have put it, "The lesson is clear: The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes." (155) The Court adopted a highly strained interpretation of the Fourth Amendment that will bring with it only minor gains to law enforcement; the result may overburden crime labs at the expense of live criminal cases.

   Still more interesting were the Supreme Court's reservations concerning future uses of DNA tests of arrestees to do more than simply identify them, but to engage in prediction or examine other genetic characteristics. The majority in King emphasized how current testing examines "noncoding parts of the DNA that do not reveal the genetic traits of the arrestee," but also that "science can always progress further, and those progressions may have Fourth Amendment consequences." (156) The Court added that under Maryland's statute "[n]o purpose other than identification is permissible," and that " [i] f in the future police analyze samples to determine, for instance, an arrestee's predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here." (157) Similarly, the Ninth Circuit has ruled that retention of an underlying blood sample, post-DNA testing and entry into CODIS, is also permitted, although noting that "if scientific discoveries make clear that junk DNA reveals more about individuals than we have previously understood, we should reconsider the government's DNA collection programs." (158)

   Can a meaningful line be drawn between identification and predictive uses? Time will tell whether these databases will expand not just in the number of profiles, but also in the uses that this genetic information is put to. In a sense, the databases are designed not just to identify individuals in the present, but to link them with future crimes; such a system is not simply one that verifies a person's identity. It is not predictive, but it is certainly not limited in time either. The constrained concept of "relevant to identity" that the Court adopted made its analysis of the privacy implications of having one's genetic profile permanently entered in a database highly artificial.

   This is all the more true where, although most states currently permit the use of DNA databank statistics for studying population statistics as well as identification of remains, as David Lazer & Viktor Mayer-Schonberger describe, few states address much less restrict other possible uses, including research, familial searches, or the "re-purposing" of the underlying DNA samples themselves. (159) The line between what is "relevant to identity" and not may not be so clear after all. Indeed, crime labs have already, without statutory authorization, permitted familial searches for partial matches that might lead law enforcement to family members of the offender. (160) The FBI changed its policy to permit such searches in 2009, and a number of states apparently now engage in the practice. (161) Such searches are used to identify individuals, but by linking them through family members; is such a use really strictly "relevant to identity"? And there are local DNA databanks that are not shared with CODIS and not subject to these regulations. (162) The FBI has announced interest in expanding CODIS to include additional loci for DNA testing, which it can do by providing Congress with written notice 180 days before doing so. (163) But most important, DNA technology is rapidly evolving. Other uses of DNA samples are under development and more dramatically expand beyond current uses. Examples of these expansions include a forensic chip that uses DNA samples to ascertain "biogeographic ancestry and externally visible characteristics" such as appearance, and a service called "Snapshot" that offers to produce a composite image of a person's face using a DNA test. (164)

   To be sure, even if the Court had decided King another way, law enforcement could concededly test people convicted of crimes, and doing so could still assemble a vast and powerful DNA database. New York State now has an "all crimes" database collecting DNA from people convicted of felonies and also all misdemeanors. (165) However, the rationale for taking DNA from people not convicted of crimes is more equivocal. As Justice Scalia pointed out, where law enforcement can already take DNA from people like King who were convicted, the only net benefit offered by the Court is that DNA can now be taken from people who are eventually acquitted or who have charges dropped or dismissed: the very people for whom the privacy cost is greatest and the social interest in searching and retaining DNA is the least. In its reasoning, the Court emphasized what was "relevant to identity," drawing a possible line at predictive uses of genetics, but without explaining why the line should be drawn at that place. The intrusion on the individual was described in terms of the swabbing of a cheek, and not the genetic nature of what was taken. At great cost to an unarticulated concern with genetic privacy, the Court provided law enforcement with equivocal gains.

   There is another reason why closer scrutiny was warranted. Data-driven regulation of genetics may disproportionately impact the least politically powerful. All of this DNA collection in criminal cases has a racial impact. The collection of DNA from arrestees and convicts reflects the disproportionate numbers of minorities arrested and convicted. (166) Minorities are therefore far more likely to have their DNA included and more likely to be identified using those databanks. Some have argued that the largest DNA databases possible would avoid equality concerns and prove more effective. (167)...