Massachusetts Genetic Bill of Rights: chipping away at genetic privacy.

• Author: Ambriscoe, Jaclyn G.

"[T]he privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen--a society in which government may intrude into the secret regions of man's life at will." (1)

1. INTRODUCTION

   The average human loses between forty and one hundred strands of hair every day. (2) Humans make one liter of saliva each day. (3) In a lifetime, the average human sheds about forty pounds of skin. (4) Hair, skin, and saliva are just a few ways in which individuals leave behind traces of their identity in the form of deoxyribonucleic acid (DNA). (5) DNA has become an irrefutable method for identifying a person. (6) In essence, humans are constantly leaving traces of their identity everywhere they go. (7)

   In the past decade, DNA has transformed criminal procedure jurisprudence. (8) Law enforcement officers and prosecutors now rely heavily on DNA to solve crimes. (9) DNA reveals unique genetic information about an individual's race, ethnicity, and medical risks for diseases such as breast cancer or the risk of having a child with cystic fibrosis. (10) Access to a person's DNA provides a dangerously intimate blueprint of a person's body. (11) If misused, DNA information could cause a person to be stigmatized, discriminated against, or targeted for criminal prosecution. (12) Some scientists have even proffered the idea of a behavioral gene predisposing an individual to a tendency to commit crimes. (13) Easy access to DNA exposes an individual's most private and intimate information to the world. (14)

   As genetic information becomes increasingly easy to obtain, it renews the timeless debate over precisely which circumstances trigger an individual's right to privacy. (15) An individual's right to be left alone has deep roots in English common law, but it continues to be the subject of contentious legal debate today. (16) Although advancements in science and technology have many advantages, these advancements can sometimes encroach upon individual privacy rights. (17) Unless DNA is protected by law, government access to an individual's genetic information will greatly undermine Americans' Fourth Amendment rights. (18) In response to the dire need to protect an individual's private genetic information, the Massachusetts Legislature introduced a Genetic Bill of Rights (GBR) that would establish property and privacy rights for genetic information and genetic material. (19)

   This Note explores the proposed Genetic Bill of Rights--including the current proposed version's flaws--and makes recommendations for a more effective version. (20) Part II.A summarizes Fourth Amendment history and the basis of the constitutionally implied right to privacy. (21) Part II.B presents different legal theories for protecting DNA. (22) Part II.C studies and explains the proposed Massachusetts Genetic Bill of Rights. (23) Part II.D studies the application of conflict of laws in criminal procedure. (24) With conflict-of-laws principles as a foundation, Part III analyzes the effectiveness and validity of the proposed Genetic Bill of Rights. (25)

2. HISTORY

   1. The Fourth Amendment

      1. The Origins of the Fourth Amendment

         One of the most valued amendments to the United States Constitution is the Fourth Amendment, which protects the right of the people to be free from unreasonable searches and seizures by requiring law enforcement officers to obtain a warrant based on probable cause before executing a search. (26) An understanding of the Fourth Amendment requires an appreciation of its history and origins in colonial America. (27) The inclusion of the Fourth Amendment's protection from unreasonable searches and seizures was largely influenced by Great Britain's use of overly broad search warrants, warrantless searches, and writs of assistance in the 1760s. (28) In two cases, the King authorized the ransacking of the homes of citizens charged with seditious libel, as well as the seizure of their books and papers. (29) Another case involved British customs inspectors searching Boston merchants pursuant to blanket search warrants, known as writs of assistance, stating that the King's agents could search anywhere smuggled goods might be found. (30)

         James Otis defended the Boston merchants and presented a speech that is credited as the inspiration for the Fourth Amendment. (31) In his speech, Otis criticized the writs as "the worst instrument of arbitrary power," and argued that they "placed the liberty of every man in the hands of every petty officer." (32) John Adams, one of the authors of the Constitution, was profoundly influenced by Otis's speech and stated in response: "Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born." (33) This historical context behind the Fourth Amendment reveals its purpose: to safeguard against an abusive government that excessively intrudes upon an individual's privacy. (34)

      2. The Development and Application of the Fourth Amendment

         It was not until 1961, when the Supreme Court ruled in Mapp v. Ohio (35) that state governments are bound by the Fourth Amendment, that its protections became truly effective. (36) Under current case law, a Fourth Amendment search occurs when a government agent gathers information where an individual has a reasonable expectation of privacy. (37) Whether an individual's expectation of privacy is reasonable depends on whether society is prepared to recognize it as such. (38) A Fourth Amendment seizure occurs when a government agent exercises control over a person or thing. (39)

         If a government agent plans to conduct a Fourth Amendment search and seizure, he must first obtain a search warrant from a neutral magistrate. (40) A valid search warrant must be based on probable cause, which requires that the officer demonstrate that under the totality of the circumstances, there is a fair probability that evidence of a crime will be found in a particular place. (41) A search and seizure that does not meet the search warrant requirements will be deemed unconstitutional, and the evidence obtained will be inadmissible in the prosecution's case. (42)

      3. Massachusetts Search and Seizure Law

         1. The Probable Cause Standard in Massachusetts

            Massachusetts search and seizure law, as set forth in Article Fourteen of the Massachusetts Declaration of Rights, provides greater Fourth Amendment protection than the United States Constitution. (43) The Massachusetts State Constitution preceded the United States Constitution, which based several of its provisions, including the Fourth Amendment, on the Massachusetts Declaration of Rights. (44) In Massachusetts, the standard for establishing probable cause for a search warrant is not as flexible and fluid as the federal standard. (45) The federal standard for proving probable cause, referred to as the Gates test, is a "totality of the circumstances" test. (46) In contrast, the Massachusetts standard for showing probable cause--referred to as the Aguilar-Spinelli test--is a two-prong test that requires a showing of a basis of knowledge for the underlying facts and proof that the information is credible and reliable. (47)

         2. The Expectation of Privacy in Massachusetts

            Despite the different state and federal standards for determining probable cause, the Massachusetts standard for recognizing an expectation of privacy is the same as the federal standard, which requires that an individual have a subjective expectation of privacy and that his expectation of privacy be one that society is willing to recognize as objectively reasonable. (48) In regard to the subjective component, the Supreme Judicial Court of Massachusetts has ruled that there is no subjective expectation of privacy in abandoned property, such as discarded cigarette butts and a water bottle in a police interview room, because the individual did not show a subjective expectation of privacy by not attempting to take the items with him at the end of the interview. (49) The most debatable aspect of the expectation of privacy is determining exactly what circumstances give rise to an objective expectation of privacy that society is prepared to recognize. (50) Massachusetts case law suggests several factors to be considered, such as the type of location, the level of the defendant's ownership in the location, the precautions, or lack thereof, taken to protect privacy, and the nature of the intrusion. (51) Despite the varying and sometimes confusing case law regarding where a person has an objective expectation of privacy, the United States Constitution and state case law are very clear that the home, unequivocally, has a reasonable expectation of privacy and is protected from unreasonable searches and seizures. (52)

         3. DNA Treatment Under Massachusetts Law

            Massachusetts law compels any person convicted of a felony to submit a DNA sample, which becomes part of a state DNA database. (53) The primary purpose of the DNA database is to help law enforcement identify criminals in order to solve future cases. (54) Although the extraction of DNA is considered a search under the Fourth Amendment and Article Fourteen, the Supreme Judicial Court of Massachusetts ruled the extraction of DNA from a convicted felon is reasonable because felons have a diminished expectation of privacy, and the state has a strong interest in improving methods to identify criminals. (55)

            In addition to convicted felons, Massachusetts law allows law enforcement officials to compel a DNA blood sample from an individual, but the required evidentiary standard to do so varies depending on the stage of the investigation. (56) For a person not convicted of a felony, and not yet indicted, a judge can issue a warrant to extract that individual's DNA if there is probable cause to believe that he...