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SHOULD THE UNITED STATES MAINTAIN A DNA PROFILE


DATABASE OF ALL CITIZENS?
By Courtland Astill

INTRODCUTION
With 10.7 million offender profiles and 1.7 million arrestee profiles, the United States
currently maintains the largest DNA profile database in the world.
1
In 1991, during operation
Desert Storm, DNA profiles, also called DNA fingerprints,
2
were used to identify the remains of
deceased military personnel.
3
The Department of Defense created the DNA Registry and
Repository to store DNA profiles of all United States military personnel.
4
In 1994, Congress
authorized the construction of a similar database called CODIS. CODIS stores DNA profiles of
arrestees, convicted offenders, missing persons, and DNA crime scene evidence amassed from
all 50 states and various federal agencies.
5


1
FBI, CODIS-NDIS Statistics, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-
statistics (last visited March 22, 2014).
2
Sean Henahan, An Interview With DNA Forensics Authority Dr. Bruce Weir, (1995)
http://www.accessexcellence.org/WN/NM/interview_dr_bruce_weir.php (last visited March 16,
2014)
3
Robert Craig Scherer, Mandatory Genetic Dogtags and the Fourth Amendment: The Need for A
New Post-Skinner Test, 85 Geo. L.J. 2007, 2010 (1997).
4
Id.
5
What is CODIS, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-
sheet (last visited March 22, 2014). The acronym CODIS is used to describe the FBIs program
of support for criminal justice DNA databases as well as the software used to run these
databases. The National DNA Index System or NDIS is considered one part of CODIS, the
national level, containing the DNA profiles contributed by federal, state, and local participating
forensic laboratories. The DNA profiles are created through Short Tandem Repeat
Polymorphism (STR) testing. The DNA profiles consist of Convicted Offender, Detainee, and
Legal profiles. CODIS also includes categories of other DNA profiles, including missing persons
and crime scene evidence.


2

In 2013, the United States Supreme Court held in Maryland v. King that the mandatory
collection of a DNA sample from those arrested of a serious crime without a warrant or any
individualized suspicion does not violate their Fourth Amendment rights.
6
Justice Kennedy
wrote, taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and
photographing, a legitimate police booking procedure that is reasonable under the Fourth
Amendment."
7
The Supreme Court came to its decision by weighing the interests of the
government against those of the arrestees to determine whether this type of search is
reasonable within the context of the Fourth Amendment.
8

The Supreme Court left open the possibility for a broader collection of DNA.
9
This paper
analyzes and expands the reasoning in Maryland v. King to evaluate whether it is sound public
policy for the U.S. Federal Government to maintain a DNA profile of every U.S. citizen. Part
one will explain the scientific background of a DNA profile database. Part two will assess the
constitutionality of such a DNA database by examining (A) the governments interests, (B) the
privacy interests of U.S. citizens, and (C) weighing the interests against one another. Finally,
part three will suggests a list practices for maintaining a national DNA database.
I. THE SCIENTIFIC BACKGROUND OF DNA PROFILING
The average human is made up of between fifty to one-hundred trillion cells.
10
Each cell
contains a nucleus which holds a human genome.
11
The human genome possesses forty-six

6
Maryland v. King, 133 S. Ct. 1958, 1970, (2013)
7
Id. at 1962
8
Id. at 1977
9
Id. at
10
Henry T. Greely, Daniel P. Riordan, Nanibaa' A. Garrison, Joanna L. Mountain, Family Ties:
The Use of DNA Offender Databases to Catch Offenders' Kin, 34 J.L. Med. & Ethics 248, 249
(2006).


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chromosomes made up of deoxyribonucleic acid (DNA) wrapped around a protein backbone.
12

Only 2% of the human genome contains protein-coding sequences.
13
The DNA used for creating
a profile, comes from the other 98% commonly known as non-coding DNA or junk DNA.
14

This DNA reveals no associations with genetic diseases or any other genetic predispositions.
15

The junk DNA goes through the CODIS 13-STR
16
process which is extremely accurate and can
identify people with an accuracy rate greater than 99.9%.
17
The actual DNA profile consists of
an encrypted string of 26 numbers.
18

Currently, accredited DNA state laboratories can process a sample of DNA to create a
profile in two to three weeks; however, according to the Pentagon, a new rapid DNA test is in the
final stages of being developed to process DNA and create a profile in as little as 90 minutes.
19


11
Id.
12
Id.
13
Greg Elgar, Tanya Vavouri, Tuning in to the signals: Noncoding Sequence Conversation in
Vertebrate Genomes, http://www.ncbi.nlm.nih.gov/pubmed/18514361, (last visited April 1,
2014).
14
Maryland at 1968.
15
Id.
16
What is a Short Tandem Repeat Polymorphism (STR)?
http://www.biology.arizona.edu/human_bio/activities/blackett2/str_description.html
(last visited March 18, 2014) A DNA profile, also called a DNA finger print, is created through
the collection of DNA, generally through a cheek swab, which is then subjected to Short Tandem
Repeat Polymorphism (STR).
17
Future of Forensic DNA Testing: Predictions of the Research and Development Working
Group, 19, http://www.nij.gov/publications/pages/publication-detail.aspx?ncjnumber=183697,
Excluding twins, Caucasians in the United States have a 1 in 575 trillion chance of finding an
identical match creating a false positive to their DNA profile.
18
DNA Profiling, http://en.wikipedia.org/wiki/DNA_profiling (last visited April 1, 2014)
19
Ray Locker and Kendall Breitman, Pentagon, Scientists Closing in on Rapid DNA technology
http://www.usatoday.com/story/nation/2014/01/27/rapid-dna-scanning-technology/4828285/,
(last visited April 14, 2014).


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The rapid DNA analysis technology has been under development since 2010 and is being
designed for use out in the field by the FBI and law enforcement.
20


II. THE CONSTITUTIONALITY OF A MANDATORY DNA DATABASE
The Fourth Amendment provides that [t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated. The Supreme Court has acknowledged that the governments use of a buccal swab, to
collect DNA,
21
and create a DNA profile is an intrusion into the human body subject to
constitutional scrutiny.
22
The ultimate measure of the constitutionality of a governmental
search is reasonableness.
23

It has been accepted as common practice to create DNA profiles of those sentenced for
serious crimes because their expectation of privacy was diminished when they choose to commit
a crime.
24
Maryland v. King took a bold step in expanding constitutional DNA profiling to those
who are arrested for serious crimes which consist of innocent and guilty persons.
25
Maryland v.
Kings holding rested on the governments interest in DNA profiling arrestees outweighing the

20
Id.
21
What is a Buccal Swab? http://www.wisegeek.com/what-is-a-buccal-swab.htm (last visited
March 22, 2014). The swab itself is much like a cotton-tipped applicator used in the application
of makeupA person removes the swab from a sterile package and rubs the cotton tip against
the inside of another person's cheek.
22
Maryland v. King, 133 S. Ct. 1958, 1968-69 (2013)
23
Id. at 1978
24
Id. at 1987
25
Id. at 1974


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invasion of privacy of those arrested of serious crimes.
26
This paper examines the expansion of
constitutional DNA profiling to all U.S. citizens. To expand DNA profiling to all U.S. citizens,
the government must demonstrate one or more interests outweigh the intrusion upon its citizens
privacy.
27

A. THE GOVERNMENTS INTERESTS
The Supreme Court has found the use of systematic suspicionless governmental searches
reasonable only when there is a real concern of a danger that has been well documented
28
or
where there is a special need in which requiring a warrant would be impractical.
29
This paper
discusses some of the well documented, concrete dangers and special needs that justify the
creation of a comprehensive DNA database of every U.S. citizen.
1. IDENTIFICATION OF UNKNOWN PERPRETRATORS

26
Id. at 1980. In light of the context of a valid arrest supported by probable cause respondent's
expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks.
By contrast, that same context of arrest gives rise to significant state interests in identifying
respondent not only so that the proper name can be attached to his charges but also so that the
criminal justice system can make informed decisions concerning pretrial custody. Upon these
considerations the Court concludes that DNA identification of arrestees is a reasonable search
that can be considered part of a routine booking procedure.
27
See generally Chandler v. Miller, 520 U.S. 305, 313 (1997). The Court did not allow for the
drug testing of candidates for state office, because the interest of the government did not
outweigh the intrusion of privacy to fit within the closely guarded category of constitutionally
permissible suspicionless searches.
28
Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 633 (1989). The Court allowed a
suspicionless search program based on the safety concerns of having railroad workers under the
influence of drugs or alcohol; Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 679
(1989) The Court found that a special need to randomly submit customs agents to urinalysis drug
test because of the documented dangers of their job including use of firearms, drug interdiction,
and fighting criminals.
29
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653-54 (1995).


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The Supreme Court has recognized that special law enforcement needs for searches and
seizures may exist.
30
The Court has stated, [w]hen faced with special law enforcement needs,
diminished expectations of privacy, minimal intrusions, or the like, the Court has found that
certain general, or individual, circumstances may render a warrantless search or seizure
reasonable.
31
The most useful type of evidence collected from crime scenes is often DNA
evidence collected from blood, semen, hair, or saliva.
32
However, DNA evidence is only useful
when it can be matched to the perpetrator. As of January 2014, there are currently 537,377
forensic profiles (i.e., profiles made from DNA samples taken from a crime scene) that cannot be
matched to perpetrators because they do not have a DNA profile in the CODIS system.
33
Law
enforcement has a strong need for a comprehensive DNA database to solve cold cases and
identify these anonymous perpetrators. With the current limited DNA profile database,
perpetrators can leave a trail of DNA evidence during their crime spree and continue to remain
anonymous.
The most recent FBI crime statistics reveal that 76,233 forcible rapes occurred in 2012.
34

There is often a substantial amount of DNA evidence left at the crime scene of a forcible rape
from semen, under the victims finger nails, pulled out hairs, and saliva. A comprehensive DNA
database would be invaluable in identifying rapists. Not only would this database help in

30
See Illinois v. McArthur, 531 U.S. 326, 330 (2001). The court recognized a special need to
allow a law enforcement officer to seize the defendant until search warrant could be obtained
to search his house.
31
Id.
32
Forensic Magazine, Dick Warrington, DNA collection and Packaging, 2009
www.forensicmag.com/articles/2009/04/dna-collection-and-packaging, (last visited March 29,
2014).
33
FBI, CODIS-NDIS Statistics, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-
statistics (last visited March 22, 2014).
34
FBI Uniform Crime Reports, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-
u.s/2012/crime-in-the-u.s.-2012/tables/12tabledatadecpdf (last visited March 29, 2014).


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catching unknown rapists, but in all facits of crime where DNA evidence is left behind such as
such as murders, kidnappings, and robberies.
In addition to serious crims, a DNA profile database would be a useful tool in catching
criminals for minor offenses. However, the more minor the criminal offense is, the less the
government is justified in a DNA search. The more minor the offense, the higher expectation of
privacy remains. Therefore, a comprehensive DNA database would be more likely to pass
constitutional scrutiny if queries into the database were limited to serious crimes.
2. IDENTIFICATION OF UNIDENTIFIABLE VICTIMS
According to FBI statistics, as of December 31, 2012 there were 7,885 unidentified
persons DNA profiles in the CODIS database.
35
Unidentified persons records include
unidentified deceased persons, those living and unable to determine their identity, and
unidentified catastrophe victims.
36
A comprehensive DNA database would serve these
unidentifiable victims in a number of ways. First, if there was a large scale catastrophe across
the United States, a comprehensive DNA database would serve to unite children with their
parents. Second, kidnapped children could be matched to their parents years after their
abduction when the children learn of their true identity. Finally, six out of ten people with
dementia wander and get lost in their lifetime.
37
A comprehensive DNA database would serve
people incapable of giving authorities necessary identifying information to connect them with
those looking for them. Few may advocate for this class of victims needs to be identified

35
FBI, CODIS-NDIS Statistics, http://www.fbi.gov/about-us/cjis/ncic/ncic-missing-person-and-
unidentified-person-statistics-for-2012unidentified, (last visited March 29, 2014).
36
Id.
37
Alzheimers Association, Wandering and Getting Lost, http://www.alz.org/care/alzheimers-
dementia-wandering.asp (last visited March 29, 2014).


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because young children and elderly people with dementia lack a strong ability to represent their
interests.
3. IDENTIFICATION OF ARESTEES
Maryland v. King names five interests the government possesses in identifying arrestees
of serious crimes. First, knowing the true identity of the arrestee.
38
Identity is more than a name,
social security number, passport, or drivers license because criminals and terrorists go to great
lengths to conceal their true identity.
39
Second, law enforcement officers need to know if the
person they are detaining poses a risk to other arrestees and the facility staff.
40
Third, ensuring
criminals are available for trial.
41
Criminals arrested for minor crimes that are aware of their
DNA being tied to another more serious crime may flee; therefore, there is a strong interest in
obtaining the true identity of an arrestee before they are released.
42
Fourth, past criminal conduct
is crucial in determining whether an arrestee should be released on bail. Finally, in cases where
an innocent person is arrested the true criminal is still on the loose, [p]rompt [DNA] testing ...
would speed up apprehension of criminals before they commit additional crimes, and prevent the
grotesque detention of ... innocent people.
43

4. EFFICIENCY
Having the ability to identify unknown perpetrators through a comprehensive DNA
database would prevent unnecessary investigations and false accusations thereby reducing

38
Maryland v. King at 1971.
39
Id.
40
Id. at 1972.
41
Id. at 1973.
42
Id.
43
Id. at 1974.


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intrusions upon innocent peoples privacy.
44
When DNA evidence is found at a crime scene, law
enforcement must collect DNA from family, friends and anyone they think may be possible a
suspect. A comprehensive database would eliminate this unnecessary waste of time and
resources and allow the police to quickly run the DNA evidence at a crime scene against a
comprehensive database without going through additional gathering of DNA samples. Police
could then spend more of their time locating the actual criminal or working on other cases.
A comprehensive DNA database would eliminate the need to resort to inefficient DNA
dragnets of entire neighborhoods, as have been conducted in California, Florida, Louisiana,
Michigan, New York, and elsewhere.
45
The speed of identifying suspects is crucial in catching
criminals and saving victims.
46
For example, 75% of children kidnapped are murdered within
the first three hours of their abduction.
47
If DNA evidence is collected at the scene of a
kidnapping, law enforcement has a great interest in being able to match it to the perpetrator as
quickly as possible.
Only 25% of those arrested for violent offenses such as murder, rape, robbery, and
assault were arrested previously for serious crimes.
48
In the current system, all first time
offenders of serious crimes have no DNA profiles in CODIS or other criminal DNA databases.

44
See Paul M. Monteleoni, DNA Databases, Universality, and the Fourth Amendment, 82
N.Y.U. L. Rev. 247 (2007).
45
David M. Halbfinger, Police Dragnets For DNA Tests Draw Criticism, (January 3, 2003)
http://www.nytimes.com/2003/01/04/us/police-dragnets-for-dna-tests-draw-criticism.html (last
visited March 31, 2014). Police asked for people to voluntarily give a sample of DNA in an
attempt to catch the perpetrator of a violent rape and murder.
46
Child Abduction/Kidnapping Statistics,
http://www.lindenhurststrangerdanger.com/?page_id=2, (last visited March 31, 2014).
47
Id.
48
Brian A. Reaves, Ph.D., Felony Defendants in Large Urban Counties, 2009 - Statistical Tables
(December 20, 2013), 10, http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4845 (last visited
March 31, 2014).


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Without a comprehensive DNA database, the governments interest in utilizing the full
efficiency of DNA profiling of dangerous criminals will never be reached.
5. DETERRENCE
The government has a strong interest in deterring crimes from happening and by
increasing the certainty of punishment, potential offenders may be deterred by the risk of
apprehension.
49
Pedophiles, rapists, and other sex offenders are 88.3% likely to repeat their
crimes.
50
Sex offenders are 99% male and rarely use condoms, which poses the risk of causing
unwanted pregnancies and spreading AIDS and other sexually transmitted diseases.
51
DNA
profiling would deter first time offenses as well as repeat offenses from occurring.
In February of 2014, a French jewelry thief tied up a woman, threatened to burn her alive
and then planted a kiss on her cheek.
52
What the criminal didnt know was that he was also
planting his DNA on the victims cheek.
53
A DNA sample of the criminal was collected from the
womans cheek and the man was identified through a French DNA database and arrested.
54
As
criminals plot crimes and weigh the risk and reward, a comprehensive DNA database would
make them think twice before committing a crime.
6. NATIONAL SECURITY

49
Valerie Wright, Ph.D., Deterrence in Criminal Justice Evaluating Certainty vs. Severity of
Punishment, 2, (November 2010).
50
Carl Bialik, How Likely are Sex Offender to Repeat Their Crimes.
http://blogs.wsj.com/numbersguy/how-likely-are-sex-offenders-to-repeat-their-crimes-258/ (last
visited April 5, 2014).
51
See, Man accused of rape, Knowingly Spreading HIV/AIDS
http://chickasha.kfor.com/news/news/92674-man-accused-rape-knowingly-spreading-hivaids
(last visited March 29, 2014).
52
Adam Sage, Thief Betrayed By a Kiss and caught by DNA Database,
http://www.thetimes.co.uk/tto/news/world/europe/article3995831.ece (last visited March 20,
2014).
53
Id.
54
Id.


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As demonstrated through the recent revelations of the NSAs broad invasions of privacy,
National Security can be used to justify extensive warrantless governmental searches into the
privacy of U.S. citizens.
55
Maryland v. King mentions three instances in which rapid DNA
analysis and a comprehensive DNA database could have prevented national security disasters:
Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who
noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the
same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed
for speeding just two days before hijacking Flight 93.
56
The Supreme Court seems to suggest
that using DNA profiling during these traffic stops could have assisted in stopping these
criminals and terrorists. With the new rapid DNA analysis technology that is being created, the
police and TSA will be able to utilize DNA profiling. This would be beneficial in preventing the
use of stolen or fake passports and identification cards used by terrorists, spies, and other anti-
Americans. The stolen passports used on Malaysia Airlines Flight 375 have recently raised
security concerns around the globe about the need for proper identification on flights.
57

B. THE INTERESTS OF U.S. CITIZENS AND INTRUSIONS UPON PRIVACY
Twenty-four years ago a privacy advocate made this prophetic prediction: "once a
technological program like DNA identification gets established for a pariah group such as sex
offenders, it is inevitable that there will be pressure to extend it to yet other groups and also to

55
Alex Abdo, The NSA is Turning the Internet into a Total Surveillance System, (August 12,
2013), https://www.aclu.org/blog/national-security/nsa-turning-internet-total-surveillance-system
(last visited March 31, 2014).
56
Maryland v. King at 1971.
57
Wilawan Watcharasakwet, James Hookway, and Siobhan Gorman, Stolen Passports Used on
Malaysia Airlines Flight Show Gaps in Air Security Around Globe,
http://online.wsj.com/news/articles/SB10001424052702304250204579431000059936682 (last
visited April 5, 2014).


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allow access to increasing numbers of individuals and institutions who claim that they need the
information.
58
True to the prediction, under Maryland v. King DNA profiling has now been
constitutionally extended to arrestees of serious crimes. If this trend continues, DNA profiling
could spread to airports, bus stations, state borders, schools, and anywhere else a strong
argument can be made for the need of positive identification. Privacy advocates argue we should
end this slippery slope and protect individuals privacy interests by not expanding DNA
profiling. In opposition, those in favor of a comprehensive DNA databases argue, to the extent
that a comprehensive DNA identification database merely reduces anonymity for criminal
conduct, it infringes no interest worthy of protection.
59

1. THE BUCCAL SWAB
In Maryland v. King the Supreme Court referred to the gathering of DNA samples
through a buccal swab as a gentle process.
60
The Court stated, the fact [that] an intrusion,
[the buccal swab], is negligible is of central relevance to determining reasonableness [of this type
of search]. The swabbing process consists of taking a plastic q-tip like device and rubbing it on
the persons cheek six times.
61

If a comprehensive DNA database were to be instituted, it is unlikely all U.S. citizens
would be willing to visit a police station or hospital to be subjected to this process. A less
intrusive way of implementing a DNA database would be to phase it in as children are born.

58
E. Donald Shapiro & Michelle L. Weinberg, DNA Data Banking: The Dangerous Erosion of
Privacy, 38 Cleveland St. L. Rev. 455, 476 (1990).
59
D.H. Kaye, Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the
Case for Population-Wide Coverage, 2003 Wis. L. Rev. 413, 448 (2003).
60
Maryland v. King at 1969.
61
FBI - Buccal Swab Collection Kit Training Video,
https://www.youtube.com/watch?v=Szj4gJFxi6E (last visited April 1, 2014). Demonstration of
the process of collecting a DNA sample using buccal swabs at the five minute mark of the video.


13

Currently all 50 states collect DNA samples from newborns to scan them for genetic diseases
and to perform medical research.
62
In addition to the scans already performed, a DNA profile
could be created and added to the CODIS database from the same samples that are already taken
of all newborns.
63


2. DATA GATHERED
DNA privacy advocates have a array of concerns about what types of data are collected
by the government through DNA samples.
64
The practice of taking DNA samples from
newborns has been a regular practice for many years and in 2008 it was officially condoned by
the government.
65
DNA privacy advocates call collection of DNA from babies a gross invasion
of privacy because the government has unrestricted access to research and sell all aspects of the
DNA.
66
Currently each state mandatorily scans newborn DNA and gathers data for 28 to 54
different genetic conditions.
67

Privacy advocates fear the government may abuse its power perform full genome
mappings of DNA. A full genome mapping can reveal intimate details about a person including

62
Newborn Screening Saves Lives Act of 2007 allows states to gather DNA of children without
the consent of parents.
63
Newborn DNA Banking, https://www.aclu.org/free-speech-technology-and-liberty-womens-
rights/newborn-dna-banking, (last visited April 16, 2014).
64
Robert Unruh, DNA Databases Prelude to Return of Eugenics?, (April 2, 2009),
http://www.wnd.com/2009/05/96787/ (last visit April 1, 2014).
65
In 2008 the Newborn Screening Saves Lives Act of 2007 was signed into law.
66
Elizabeth Cohen, The Government Has your Baby's DNA
http://www.cnn.com/2010/HEALTH/02/04/baby.dna.government/ (last visited April 1, 2014).
67
Id.


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genetic diseases, predispositions, mental traits, physical characteristics, and familial lineage.
68

Some people fear DNA databases are the prelude to eugenics, or the government controlling the
reproduction of the population to improve the quality of the nations genetic makeup.
69

However, the data gathered for the FBI CODIS 13-STR profile is much like a social security
number and does not give any information about the tested person.
70
If the government were
going to abuse their power to perform full genome mappings of the population, they already have
the ability to do so from the samples they collect from all newborns. A DNA sampling is far less
intrusive when only a DNA profile is created and is more likely to pass Fourth Amendment
scrutiny.
The constitutional challenge in Maryland v. King of DNA profiling was unsuccessful
partially because the Court recognized the information gathered was limited only to a DNA
profile for identification purposes.
71
The Court stated that if police were to scan DNA for a
particular disease or a hereditary predisposition it would raise additional privacy concerns that
would be subject to additional constitutional scrutiny.
72
The Maryland statute in question stated
that no purpose other than identification is permissible. By limiting the data collected from
DNA samples to identification purposes only, there is much less of an intrusion on an
individuals privacy and it is much more likely to pass Fourth Amendment scrutiny.
2. STORAGE OF DNA SAMPLES

68
Candice Roman-Santos, Concerns Associated with Expanding DNA Databases, (August 27,
2011), http://hstlj.org/articles/concerns-associated-with-expanding-dna-databases/ (last visited
April 1, 2014).
69
Bob Unrh, DNA Databases Prelude to Return of Eugenics?, (May 2, 2009),
http://www.wnd.com/2009/05/96787/ (last visited April 1, 2014).
70
D.H. Kaye, Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the
Case for Population-Wide Coverage, 2003 Wis. L. Rev. 413, 431-32 (2003).
71
Maryland v. King at 1979-80.
72
Id. at 1980.


15

The main concern with the storage of DNA samples is that if the specimen is not
destroyed additional testing may later be performed.
73
Advocates of the destruction of DNA
samples distinguish between the DNA profile created and the DNA sample itself.
74
They argue
that you have a property right to your DNA whether or not it is taken through a sample or simply
shed off your body.
75
Currently there is no uniform standard of care for the storage of DNA
samples. Some states create a DNA profile and then immediately destroy the specimen, while
other states keep the sample indefinitely and claim they have a property right to the DNA.
76

As DNA technology evolves and more uses are developed, DNA samples may reveal
more intimate details of individuals. Keeping the sample of someones DNA creates a greater
invasion of privacy and is therefore less likely to be constitutional. A comprehensive DNA
database could solve this problem by having a unified standard to destroy all samples after a
DNA profile is created.
3. ACCESS
Access to the CODIS database is currently restricted to criminal justice agencies for law
enforcement identification purposes.
77
Defendants are also permitted access to their DNA
samples and analyses that relate to their case.
78
This allows defendants to retest DNA and ensure
that there is in fact a DNA profile match to the criminal evidence. Access to CODIS has also

73
Leigh M. Harlan, When Privacy Fails: Invoking A Property Paradigm to Mandate the
Destruction of DNA Samples, 54 Duke L.J. 179 (2004).
74
Id.
75
Id.
76
Aaron P. Stevens, Arresting Crime: Expanding the Scope of DNA Databases in America, 79
Tex. L. Rev. 921, 953 (2001).
77
FBI, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA
Index System, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-
sheet, (last visited April 16, 2014).
78
Id.


16

been given to criminal justice agencies for uses other than matching profiles only after personally
identifiable information is removed from the data.
79
These uses include population statistics,
identification research, and quality control purposes.
80
If someone leaks information obtained
from CODIS, they are subject to a criminal penalty not to exceed $250,000.
81

By keeping access limited a select number of government agencies tailored toward
fulfilling the governments interests there will be less intrusions of privacy. The more access
that is granted to the DNA profile database, the greater the intrusion privacy. Access to a
comprehensive DNA profile database should be limited to law enforcement and national security
agencies.
4. USES OF THE DATABASE
The greatest potential for invasions of privacy arises from the uses of DNA samples for
genome mapping or scans for genetic predispositions. The information contained in this type of
sample of DNA is attractive to a wide array of individuals, corporations, and agencies including
insurance companies, drug companies, adoption agencies, and attorneys selecting a jury. Some
fear that employers will deny employment or insurance companies will deny coverage based on
the fact that individuals are predisposed to certain genetic characteristics.
82
Others fear that
schools may discriminate against their children or unfairly benefit children who demonstrate
unfavorable or favorable mental characteristics. However, in 2008, President Bush signed into
law the Genetic Information Nondiscrimination Act, which forbids employers and insurance

79
Id.
80
Id.
81
Id.
82
Aaron P. Stevens, Arresting Crime: Expanding the Scope of DNA Databases in America, 79
Tex. L. Rev. 921, 933 (2001).


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companies from denying employment, promotions, or health coverage to those people with
certain genetic predisposition that may cause certain diseases, cancer or other ailments.
83
This
law serves to protect against the fears of eugenics and other types of discrimination based on the
testing of their DNA.
84

A DNA profile database can create several privacy concerns if it allows familial searches.
First, people who have an evil twin may suffer from invasions of privacy if law enforcement
falsely arrest or imprison the good twin.
85
Second, when law enforcement cannot find a
criminal, they may use genetic sleuthing to search for relatives of the criminal.
86
After
relatives are identified, law enforcement will want to question them and intrude on their privacy
to develop leads. Privacy advocates may argue this unfairly burdens relatives of criminals.
However, genetic sleuthing has proved successful in California and aided in the capture of the
Grim Sleeper serial killer in 2010.
87
Third, familial searches can reveal the identity of the
parents of non-marital children, which possess significant privacy concerns for males whom

83
Derek Regensburger, DNA Databases and the Fourth Amendment: The Time Has Come to
Reexamine the Special Needs Exception to the Warrant Requirement and the Primary Purpose
Test, 19 Alb. L.J. Sci. & Tech. 319, 332 (2009).
84
Id.
85
Dr. Barry Starr, Genetic Sleuthing, Or How To Catch The Right Identical Twin Criminal,
(February 25, 2013), http://science.kqed.org/quest/2013/02/25/genetic-sleuthing/ (last visited
April 6, 2014). The DNA profiles of identical twins are identical.
86
See Maura Dolan, State to Double Crime Searches Using Family DNA, L.A. Times (May 9,
2011), http://www.latimes.com/news/local/la-me-familial-dna-20110509,0,3088333,full.story.
(Last visited April 6, 2014). Only three states, including California, allow genetic sleuthing as
an investigative technique.
87
Id. The attacker was nicknamed the "Grim Sleeper" because he took a 14-year break between
his murders from 1988 to 2002.


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have widely spread their seed.
88
Finally, birth parents in adoptions may be discovered when they
may wish to remain anonymous.
The more limits placed on the uses of a comprehensive DNA profile database, the more
likely it is to pass constitutional scrutiny. Currently there is not a consensus on what limits
should be placed on the uses of DNA databases. To pass constitutional scrutiny, familial
searches should be limited to genetic sleuthing for only the most serious crimes such as murder,
kidnapping, and rape. By limiting familial searches to serious crimes, it will intrude less on the
privacy of individuals related to criminals.
5. ERRORS
Human error will inevitably cause innocent people to be subject to accusations or arrests
for crimes they did not commit. These errors could occur from contamination of samples,
mislabeling samples, or errors in computer software.
89

Establishing a practice of retesting those matched to a suspected criminals DNA profile
will ensure that innocent people are not convicted or held for an unreasonable amount of time for
crimes they did not commit.
C. BALANCING OF INTERESTS
In balancing the interests between the government and citizens of the United State, great
weight must be given to the significant government interest at stake as well as the competing

88
See e.g. Ralph Warner, Gus Turner, Big Poppas: The Athletes With the Most Children by the
Most Women, Complex Sports June 2013, http://www.complex.com/sports/2013/06/athletes-
with-the-most-children-by-the-most-women/calvin-murphy. NBA hall of famer Calvin Warner
has 14 known children with 9 different known women. Holds the unofficial record for most non-
marital children by the most women in professional sports.
89
D.H. Kaye, Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the
Case for Population-Wide Coverage, 2003 Wis. L. Rev. 413, 422 (2003).


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privacy interests.
90
The governments interests discussed include: (1) identification of unknown
perpetrators, (2) identification of unknown victims, (3) identification of arrestees, (4) efficiency,
(5) deterrence, and (6) national security. The competing privacy interests include: (1) physical
intrusion, (2) storage of DNA, (3) access, (4) uses, and (5) errors.
The utility of a comprehensive DNA database is difficult to dispute, because it would
provide law enforcement with an efficient tool to save lives, catch criminals, preserve resources,
and deter crime. The ultimate question is whether it rises to the level of a special need to justify
the invasions of individual citizens privacy. The sheer number of heinous crimes that occur
each year begs for a remedy. A comprehensive DNA profile database would undoubtedly serve
to deter and solve crimes because all humans leave a trail of DNA everywhere they go.
Many of the privacy concerns raised by the creation of a nationwide DNA database can
be addressed through proper implementation of privacy safeguards. The physical intrusion of
DNA samples can be limited to cheek swabs or hair follicles to minimize any physical intrusion.
The DNA samples can be destroyed after a profile is created to ensure no further analysis, such
as genome mapping, is performed. DNA analysis can be limited to creation of DNA profiles
only and genome mapping and other analysis can be prohibited. Access to the database can be
narrowly tailored to only fulfill the strongest of the governments interests, by only allowing
access to agencies involved in law enforcement and national security. Likewise the uses of those
agencies can also be narrowly tailored to the governments interests by placing restrictions on
queries into the database. Queries into the database may be limited to only serious crimes such
as identification of victims, terrorism, homicide, rape, kidnappings, and armed robbery. Queries
can be guarded by the judicial system to prevent abuse and require warrants to be issued before

90
Maryland v. King at 1977-78.


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queries can be made into the database. Finally, any human errors that occur can be remedied by
creating a fresh DNA profile of those arrested when their profile in the database matches
criminal DNA evidence.
The Supreme Court would likely find that the governments national security and law
enforcement interests rise to the level of a special need and outweigh the intrusions of privacy
because the physical intrusion is gentle and privacy concerns can be remediated through the
proper privacy safeguards. The ability to identify criminals is paramount when society contains
so many people willing to commit heinous crimes. A national DNA database of all U.S. citizens
with uniform privacy standards should be implemented to meet the overwhelming interests of the
government and society.
III. SUGGESTED BEST PRACTICES OF NATIONAL DNA PROFILE DATABASE
The Court in Maryland v. King alluded to additional expansions of DNA profiling but did
not include any specifics to what the expansion would look like.
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This paper suggests a list of
best practices that should be considered in the creation of a comprehensive DNA profile database
of all citizens.
DNA samples should be destroyed after a profile is created.
DNA samples should be taken through cheek swabs or hair follicles and not
through blood draws. This will reduce the physical invasion of privacy.
Uses of the database should be limited to law enforcement, national security, and
identification of missing persons.
Queries into the database should not be used for minor offenses.

91
See Maryland v. King at 1972. The court alludes to the fact the DNA profiling of these three
individuals stopped for traffic violations could have prevented heinous crimes.


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Access to the DNA database should be closely guarded by the judicial system.
Unless a special need is narrowly carved out, a warrant should be required to
query the database.
Familial searches should not be allowed unless a warrant is granted for genetic
sleuthing.
A second DNA profile analysis should performed immediately after someone is
taken into custody for matching criminal DNA evidence.
Collection of DNA should be phased in and collected from the samples taken
from newborns.
DNA profiles should be encrypted and kept secure in the CODIS database.
Full genome mapping should not be allowed.
The database should not be used for scientific research unless all identifying
information has been removed.