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This document discusses whether the United States should maintain a DNA profile database of all citizens. It begins by providing background on the current DNA database system in the US and the Supreme Court ruling that allowed DNA collection from arrested individuals. It then examines the constitutionality of expanding DNA collection to all citizens by analyzing the government's interests in identification and solving crimes against citizens' privacy interests. Finally, it suggests practices for maintaining a national DNA database if it were to include all citizens.
Исходное описание:
Paper by Courtland Astill for Professor Randy Dryer's Spring 2014 Information Privacy Law course
Оригинальное название
Should the United States Maintain a DNA Profile Database of All Citizens?
This document discusses whether the United States should maintain a DNA profile database of all citizens. It begins by providing background on the current DNA database system in the US and the Supreme Court ruling that allowed DNA collection from arrested individuals. It then examines the constitutionality of expanding DNA collection to all citizens by analyzing the government's interests in identification and solving crimes against citizens' privacy interests. Finally, it suggests practices for maintaining a national DNA database if it were to include all citizens.
This document discusses whether the United States should maintain a DNA profile database of all citizens. It begins by providing background on the current DNA database system in the US and the Supreme Court ruling that allowed DNA collection from arrested individuals. It then examines the constitutionality of expanding DNA collection to all citizens by analyzing the government's interests in identification and solving crimes against citizens' privacy interests. Finally, it suggests practices for maintaining a national DNA database if it were to include all citizens.
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.
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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.
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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.
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.
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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.
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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. 91 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.
ABRAHAM RIMANDO, Petitioner, vs. NAGUILIAN EMISSION TESTING CENTER, INC., Represented by Its President, ROSEMARIE LLARENAS and HON. COURT OF APPEALS, Respondents.