Dna Databases and Discarded Private Information: “your License, Registration and Intimate Bodily Details, Please”
| Publication year | 2004 |
| Citation | Vol. 6 No. 2004 |
I. Introduction
In the small town of Truro, Massachusetts, three years had passed and the police could still not find the killer of freelance fashion writer Christa Worthington. Christa was found stabbed to death with her two year old daughter "clinging to her body."1 Local police found semen on Worthington's body, providing a DNA sample, an important clue to help solve the case.2 As has occurred on other occasions in the United States and abroad, investigators deployed a so-called "DNA Dragnet" of all 790 males in the town.3 Police asked men in Truro to provide investigators with a DNA sample in order to check it against the DNA found on Worthington. While the program was voluntary, investigators indicated that those who were unwilling to provide a sample would be viewed with suspicion by the police.4 Sergeant David Perry of the Truro Police Department stated, "[w]e're trying to find that person who has something to hide."5 In addition, the American Civil Liberties Union (ACLU) repeated the alleged remarks of a State Trooper, that, "[they] have an awareness of people who fail to consent."6
The response of local residents was been mixed; some men believed they had nothing to lose and should aid the police in tracking down the killer by providing a DNA sample.7 Others were more suspicious of police action generally and had privacy concerns.8 The ACLU has called for an immediate stop to the DNA collection due to privacy concerns and the fact that DNA Dragnets like the one in Truro are typically unsuccessful.9 in fact, DNA testing ultimately yielded an arrest in the Worthington case, although the arrestee was someone the police considered a suspect as early as 2002.10 Thus, DNA testing of those suspected by law enforcement officials, not the generalized DNA Dragnet, led to an arrest.
As heinous crimes have remained unsolved, investigators have turned to wide scale DNA searches in numerous towns across the United States in an attempt to flush out dangerous perpetrators.11 After briefly reviewing the use of DNA by law enforcement officials in the United States and discussing historic treatment of DNA Dragnets in Fourth Amendment jurisprudence, this Recent Development considers the legality of DNA Dragnets after Caballes v. United States, a drug-sniffing dog case that may have implications for the use of DNA technology. Moreover, this Recent Development argues that the traditional "reasonable expectation of privacy test" is inappropriate given the trend for increased use of DNA by investigators and private actors; as DNA analysis becomes more common in society, it has the potential to open the door to prevalent, unchecked use of DNA sampling in the absence of the protections provided either by an alternative legal standard or statutory privacy protections.
This Recent Development proposes that Fourth Amendment rights are inadequately protected in the face of rampant technological change fueled by scientific developments which were not present in the arenas of prior Fourth Amendment jurisprudence. Fourth Amendment privacy-protecting safeguards cannot sufficiently protect against a drift into a future in which the intimate secrets of one's body are unlocked and held by the government for any future use. Therefore, this Recent Development argues that prophylactic measures are necessary to strike the proper balance between the legitimate state interest in collecting accurate and sufficient information about the criminals and the individual's interest in adequate protection for the vast personal and private information contained within DNA. With appropriate limits on what information the government may glean from DNA samples, DNA testing and analysis on a wide scale can balance privacy interests with the important governmental interest of accurate law enforcement.
II. A Brief History of DNA Use in Criminal Investigations
Jim Watson and Francis Crick first understood the structure of deoxyribonucleic acid ("DNA") as "the informational molecule of human heredity."12 Each person's DNA, with the exception of identical twins, is different from that of every other human being.13 All human cells contain DNA, which remains unchanged during one's entire life.14 DNA samples can be attained from numerous bodily materials, including blood, saliva, skin tissue, saliva, sweat, hair and bone.15 For example, DNA can be retrieved from the rim of a bottle or can or from dental floss.16
Due to its uniqueness, DNA has been hailed for its high level of certainty in the criminal investigation context.17 For example, Christopher Asplen, a federal prosecutor and former executive director of the U.S. Justice Department's National Commission on the Future of DNA Evidence stated, "[i]t's the most significant advancement in investigative tools at least in this [past] century."18 Some commentators describe DNA as a panacea in terms of exonerating the wrongly convicted innocent.19 DNA is also routinely collected at crime scenes and used at the outset of investigations in order to solve crime.20
In addition, DNA is collected and analyzed, and the resulting DNA profiles are added to databases for predetermined populations.21 Generally, the relevant population has expanded over time.22 While DNA was initially collected only from sex offenders, now most states mandate DNA sampling of all convicted violent felons. Moreover, a few states have enacted legislation providing for the collection of DNA from all persons arrested.23 According to database proponents, the expansion of DNA databases increases the probability that police will match DNA found at both past and future crime scenes. This would lead to more efficient and accurate crime fighting.24 One group lobbying for the expansion of DNA databases argues that "[s]tatistics show that as many as half of all violent criminals have non-violent prior convictions. If a state takes DNA from violent offenders only, the likelihood of solving a particular rape or murder are [sic] reduced by 85%."25 Similarly, in calling for such an expansion, Paul B. Ferrara, the director of Virginia's Forensic Science Division stated, "If we took samples from suspects at arrest and searched a database of samples from crime scenes, the advantages to public safety are going to be tremendous."26
The crime-fighting power and accuracy of DNA has driven the expansion of DNA collection. All fifty states have DNA Databases of some kind.27 Every state collects and enters DNA information from all persons convicted of sex crimes into a database.28 As of January, 2005, a total of thirty-eight states require DNA samples from all convicted felons.29 While forty- seven states require DNA samples for criminals convicted of murder and assault and battery, the remaining three require DNA just for criminals convicted of murder.30
Significant privacy concerns are implicated by the use of DNA on a wide level. While DNA has been compared to fingerprints as a crime solving tool,31 commentators have pointed out that DNA potentially provides vast amounts of personal information including intimate details regarding physical health and behavioral characteristics,32 whereas the information from fingerprints is simplistic: Is it a match or not? In Davis v. Mississippi,33 the Supreme Court held that detentions premised solely on the discovery of an arrestee's fingerprints, while subject to the Fourth Amendment's protections, benefit from a sometimes-relaxed notion of probable cause.34 The Court reasoned that "[d]etention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search."35 While DNA can be used to discern whether a person's DNA matches that left at a crime scene, it also may reveal information of a highly intimate and personal nature, including an individual's propensity to get certain diseases and behavioral characteristics.36 As technology progresses, scientific advances will beget further analysis of the person from his or her DNA.
III. The Fourth Amendment and DNA
The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.37
The Constitution's framers enacted the Fourth Amendment in order to prevent warrantless physical searches of personal residences by agents of the government.38 Its contours have extended well beyond the protection of the home to include other areas; it has been applied in settings ranging from the basic search and seizure of persons,39 to the use of drug sniffing dogs during a routine traffic stop40 and drug testing of students.41
The threshold Fourth Amendment question is whether a certain government action is a constitutional search or seizure. if state actions do not constitute a search or seizure, Fourth Amendment protections such as probable cause and reasonableness do not apply and the government may proceed without any particularized suspicion that that person is involved in a crime.42 For example, it is not a "search" if the police are in a place where they have a legal right to be and they observe contraband in plain view.43 Next, if governmental action is considered a search that implicates the Constitution, is it unreasonable, and therefore impermissible?44 Whether a governmental intrusion is reasonable depends on a balancing of law enforcement interests against the individual's security and privacy interests at stake in the particular setting.45
The modern foundational case for Fourth Amendment jurisprudence is Katz v. United States.46 in Ka...
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