Woman sues after DNA from rape kit used to arrest her | Hacker News Reader

Woman sues after DNA from rape kit used to arrest her

nypost.com

203 pointsleephillips244 comments

Well there's an enormous can of worms.

I share the common emotion that this is awful and shouldn't happen, but I have trouble justifying it intellectually.

Let's say, instead of DNA, it was an outstanding bench warrant. It seems pretty clear to me that the victim should have the help of the police in apprehending the rapist, but should also be arrested for the bench warrant. You might disagree, but there's no solving the problem of both needing the help of the police and being wanted for crimes. Waiting a day to serve the warrant, out of respect? Does that help?

This is different, yes, but how different? What changes to the database should be made here? Completely separate victim and suspect lists? It's burglary this time, what if it was homicide?

Not that you can separate victim and suspect when processing rape kit DNA! Eliminating common subsequences reduces the entropy and makes matches harder, we share a lot of SNPs in common.

My complete disgust that this happened remains, but this is one of the gnarliest ethical dilemmas I've seen.

> I share the common emotion that this is awful and shouldn't happen, but I have trouble justifying it intellectually.

Incentives.

The justification would be that sexual assault is a serious crime that goes underreported. If victims are afraid to come forward because they fear arrest for other, pettier offenses, then predators are even more likely to escape justice and commit more assaults.

> pettier offenses

Really, any offenses. We could imagine that there's some method for abusing a policy of disallowing use of a victim's evidence to prosecute that victim for unrelated crimes, but until it happens, it's reasonable to ignore that possibility.

The most shocking thing in this article is that SF actually prosecuted a retail theft case and went so far as to get DNA? This is not the SF Fox News has been telling me about.

It was arguably one of ex DA Boudin's stunts to make 'the system' look bad.

Boudin was on life support pre recall at this point in history and found the SFPD dna evidence issue which was a questionable use case of that data at best.

The woman had been arrested on suspicion of a felony property crime, with police identifying her based on rape-kit evidence she gave as a victim, part of a giant San Francisco only dna data bank her data was in and she matched to.

Given how incredibly hard Boudin made it for what is left of the SFPD to prevent crime this is one of those 'everyone loses' current realities

It’s fascinating how people will contort their brains to make every obviously shitty thing that SFPD does somehow the fault of their political boogeyman.

Can you point out the evidence that Boudin instructed the SFPD to use DNA evidence in the investigation of retail theft? Like is there a memo from the DA saying “I, Chesa Boudin, instruct you to collect DNA evidence for retail thefts, and make sure to mash the rape victim database up with the criminal database!”

I have never seen a group so fervently pro-police on this site as the pro-SFPD group (and I do not mean the anti-Boudin group, I mean the group that is critical of anyone that doesn’t tow the “poor SFPD, we would live in a utopia if only they had unlimited power” line.)

edit: Typos

I was saying quite the opposite to 'Boudin instructed the SFPD to use DNA evidence in the investigation of retail theft'. What I actually attempted to say was the SFPD's questionable use of dna data was seized on by Boudin who was fighting for his political life at this point and amplified it as a weapon vs the SFPD.

We all lose because rape kit dna shouldn't be in the pool of felon dna data, the police were being impeded by Boudin at every turn resulting in inappropriate policing methods to try and get a federal case through. The streets of San Francisco are no longer safe for anyone as a result of this fiasco with the SFPD understaffed and relunctant to do much for fear of being on the wrong side of criminal advocate activists legal challenges....

> Boudin at every turn resulting in inappropriate policing methods to try and get a federal case through.

Your point is that the lack of evidence that Boudin was involved in this is the proof that this is his fault? Is there any scenario where anything SFPD does that’s shitty isn’t his fault?

Edit: When were the streets of San Francisco “safe” exactly? I wasn’t there during this horrible period between 2020 and 2022 but in 72 hours in SF a few years back:

-I saw people buying oxy from a guy in a tent, about ten feet from an occupied parked cop car

-About eight guys “running a train” (taking turns having penetrative sex) with a woman in an alley whilst they all smoked crack

-A woman taking a shit out of the window of a moving bus

-I was chased by a homeless man for five blocks because I only gave him a dollar and he kept demanding “more”

-I was forced to accept a dvd of truly depraved pornography at a bus stop

-I saw an adult shop openly selling cocaine

-Countless people shitting on the street

Does Chesa Boudin have a time machine? It sounds like I experienced exactly what the SFPD superfans say he caused.

Edit 2: This was during Garcon’s tenure.

Unless this is the police just grasping at straws to arrest someone and DNA evidence provided some link (no-one identified her at the scene), which is just wrong, the police knows it, but they have a connection and thus, maybe, a conviction ...

That seems wild to me. What are the limitations to this and what is special about DNA. If someone makes a police report for rape and their ID comes back as wanted for murder, should the police look the other way as to not disincentivize rape reports?

Perhaps so. Let's let that happen first, before we debate it. Oh, and there's nothing special about DNA in this respect. It just happens to be something collected during a rape investigation.

This is why if you've ever been to a music festival they make it absolutely explicitly clear that you can go to the on-site paramedics for anything and they won't incriminate you. Putting someone in a position where they have to weigh the risk of ODing verses a life-ruining jail sentence is how you end up with people dead.

>make it absolutely explicitly clear that you can go to the on-site paramedics for anything and they won't incriminate you.

There's surely a threshold at which they will gladly incriminate you. The paramedics just can't reasonably foresee where said line is other than knowing it's far beyond the typical illegal activity you find in that setting. Moreover, I'm sure you could imagine in the case of federal crimes (drug trafficking, terrorism, high profile national news stuff, etc) the feds having no qualms about threatening to drag the paramedics through an expensive prosecution if they don't narc.

I've been to plenty of music festivals and never heard of this. Are you suggesting if I show up clutching a knife, bathed in human blood and covered in entrails that I'm not going to be incriminated for anything?

What if you showed up carrying a corpse with “I was murdered by the person carrying me” carved into their chest?

What if you showed up with a bomb vest? Or showed up in a stolen military helicopter?

I’m not sure what the value is of these very obvious cases where common sense dictates that there is a plain and obvious limitation to this policy. The point is obviously to limit harm that people do to themselves and one another, not to function as some sort of philosophical thought experiment made concrete.

What is the purpose of this “what about”?

It's obviously meaningless, at least in the US. A private contract between two individuals in the US cannot abrogate the ability of a court to compel someone to testify in a criminal trial. When someone is put on the stand under oath, they're going to testify.

If the wording was something like "won't call the cops if you're way too fucking high" I'd find it more believable.

>If the wording was something like "won't call the cops if you're way too fucking high" I'd find it more believable.

That’s exactly what they mean, and that is painfully obvious. I do not understand your point here. What exactly are you having difficulty believing? Do you think they intend to advertise that they provide blanket cover for every crime on earth?

I am having difficulty believing that anyone would actually believe that that is what’s intended by that statement. It is much more believable that a person would intentionally misinterpret that statement to make some sort of vague joke about language.

Here let me just pick a festival that's happening soon https://www.lostlandsfestival.com/info/

> HARM REDUCTION

> Medical staff will be available 24 hours a day to help in any situation, and they will not incriminate anyone. Do not hesitate to visit medical tents or reach out to any staff member or security member.

Not literally anything. In the context of festivals, this probably means "illegal drug activities".

Did you really wonder if they meant "looking like a murderer is fine" or are you trolling?

I think it's important to be clear and concise when discussing these things, otherwise people can easily get confused, like the poster. Keep in mind that some of us operate on rigidity and what may be obvious to you is not obvious to others.

By “us” do you mean that you also thought that this meant that medical tents at music festivals would provide cover for murder?

You're right, that's a concern. The solution is to get everyone in the DNA database beforehand so there's no marginal cost of getting swabbed with a rape kit.

Totalitarianism is always a solution, it’s just also always the wrong solution.

That's true, but it isn't relevant to the comment you are responding to.

I'm getting strong Godwin's Law vibes from your response, btw.

Godwin’s law doesn’t apply when talking about actual Nazis.

Pre-collecting DNA from everyone to use as evidence against them in future criminal investigations is way over the line when it comes to “is this behaviour totalitarian or fascist”.

Using DNA from a rape kit to identify someone in a crime is a clear violation of the 5th amendment.

Just because you can do something doesn’t mean you should.

If the people vote for the government to collect everyone’s DNA at some future point in time, that’s just how a democracy works. Freedom and liberty includes the freedom and liberty to make poor decisions.

A democracy without the guardrails of a constitution can absolutely slip into totalitarianism thru entirely democratic means.

The majority vote can be rallied through fear and propaganda into vesting ever greater authority in a centralized seat of power, with any opposition vilified as an existential threat.

The only way democracy survives is through a watchful and untrusting populace that constantly holds its government to account and seeks to limit its power and pervasive reach into the lives of the citizenry.

Freedom and liberty require at its core the ability to dissent. Dissent in turn requires privacy because dissent by its very nature will be suppressed by those in power.

I would theorize that mandatory en masse DNA cataloging is anathema to democracy because it inevitably is far too powerful a tool to suppress dissent.

The constitution can be almost arbitrarily amended, or even replaced almost entirely, if 3/4 of voters agree, or 3/4 of their representatives in a constitutional convention agrees... you do realize a specific portion of the U.S. constitution explicitly enumerates that possibility?

If a population votes for the least worst government that doesn’t give that government permission to turn to autocracy slightly slower than the other option.

The government is given permission, presumably, for whatever the voters voted for.

That is what the Kuwaiti government did, years ago. This might work for authoritarian governments, should not work in democracies

It is a bad idea, but technically speaking it has nothing to do with democracy, they are orthogonal.

Why shouldn't it work for democracies? In what sense is maintaining a DNA database incompatible with democracy?

Because using DNA collected from a victim of crime to prosecute them for a later crime is probably a violation of 5th amendment rights.

The next logical step if you don’t think the 5th was violated is collecting DNA from everyone (eg: repurposing COVID swabs) so you can identify all the potential suspects from your sampled population while completely ignoring that someone from outside the sampled population could be the person you are looking for.

I don't see how this is unreasonable, when already we collect photographs (with ID cards). Or, more aptly, we already collect footprints of newborns, for purposes of identification. Collecting DNA for purposes of identification is almost the same thing.

Being able to positively identify people is a reasonable function of a government, including democratic governments.

DNA testing is not positive identification.

The direct proposal was not to collect data from victims, but all innocent parties . no need for extrapolation.

To me the real question is, why they got to keep a secret copy of the victim's DNA data for multiple years, let alone using it for things that the original owner did not consent to.

I think this is comparable to a key to your house that you gave to the police, because it was burglarized. They finished their investigations and hand the key back to you. What they did not tell you, is that they created a secret copy of your house keys and then five years later use it silently for searching through your house without a warrant.

That would be confusing yes. But you can't remove the victim's DNA from the offender's, without making it less likely to find a match. That question has an actual answer: you can't. It's literally a boolean thing: you have victim AND offender, if you XOR victim out, you lose some offender.

Legislation appears to be doing the right thing here, my question is whether the police did their duty or not. Someone signed a consent form to put them in a database that tagged them as a match. That's not a police discretion thing, it's not clear to me that damages are appropriate.

Fortunately I'm not a judge, just some guy on the internet.

It's a bit of a drama with this house key and stuff, it's more like they took your picture when you were victim and later recognized you when you were offender and used address they saved back then to knock on your door.

Why would they take and hold pictures of the victims of crime?

As part of standard case documentation procedure?

> It's burglary this time, what if it was homicide?

Magnitude of a crime can always be expanded to justify anything. We have plenty of things we could do to catch more criminals (even murderers!), but we don't. As an example, why not run a DNA check on any blood draws at the doctor's office? Sure it's an invasion of privacy, but what if it catches a murderer!

I get it. Here the argument is that the person approached law enforcement on their own, and thus opened themselves up to this. But this is incidental -- it happens to be that reporting this crime requires handing over DNA. But police could require everyone to do a blood draw when reporting any crime, right? I think most people would have a problem with that and think it is obviously an invasion of privacy. But OK, you can argue that the real problem there is that it is too tit-for-tat. How about instead every time you walk into a police station someone watches you and collects any hair that falls off of your head and runs it through the database? No coercion, no one can argue that they had to give their DNA in exchange for services. Still seems like it would still have a pretty negative effect on trust between people and police.

The only thing that makes this case "confusing" is that a bunch of different actors are bundled together. If the administration of a rape kit was 100% done by a doctor (as far as I know it is done by nurses but then handed over to police, currently?), and they could then trivially separate out the two genetic materials and hand over only that which didn't belong to the victim, then I think most people would find it distasteful for the police to demand both sets of DNA, right? Why do you need the other one (the doctor could confirm it belongs to the victim if that is the concern)? Just because it happens to be that the way we happen to administer this today makes it convenient to check both (and perhaps even easier than not checking both), does not in my mind introduce any sort of new ethical consideration. It still feels an awful lot like "well, if you want us to look at your crime, you have to be willing to have us check you for any crimes first".

The job of police is difficult, not as an accident of history because they didn't have the right technology when we wrote a lot of these laws, but because it's supposed to be difficult because we understand the value of what's lost if it isn't.

Sure it's an invasion of privacy

Can someone explain why it is considered as such, also with regard to forensics (if that makes any difference)? The original definition of privacy looks somewhat archaic in this case.

E.g.: someone follows you everywhere with a camera - it's privacy invasion. Some public camera films you accidentally at a specific place - it is not, though it's clearly you in the video. Seems like intent and focus are key here, and your image is not invasive by itself, but only if someone focuses on you. We leave DNA everywhere just like we leave images on every camera, but (to me) it's only privacy invasion if someone builds many fragments together or pauses to "look" into your business there. DNA itself is as private as your look - everyone can see it unless you actively counter it by physical means.

But the police didn't focus on her, they focused on evidence, just as if some camera filmed her in that house and they'd look at that footage, not at some drone footage tracing specifically her to see if her route maybe includes that house.

Storing DNA from previous encounters is ~ like storing your id photo (i.e. absolutely neutral info, lacking any context). Does this part invade privacy, maybe? But what's private here?

It’s an invasion of privacy because it’s not neutral info. It may for example contain information about genetic diseases or other things that could be used to discriminate against you. It doesn’t matter if it’s not the police’s intent to use it that way, since by collecting it they create a huge target for hackers to get a large amount of this info. The information it contains should be considered closer to CC number than a ID picture (or arguably even worse, since you can’t change it).

If it's not justified, it's not justified regardless of the crime. Fruit of the poisonous tree doesn't work that way typically.

Why would you have rape victim DNA in the same database as unknown rape suspect DNA? It's because you have no safeguards and no ethical standards, and are using everything you have access to in the same way. Imagine calling the cops for a burglary, and while they're walking through your apartment they see a bankers' box that says "Taxes," so decide to audit you while they still have legal access to your apartment.

> It seems pretty clear to me that the victim should have the help of the police in apprehending the rapist, but should also be arrested for the bench warrant.

It seems to me that's a great decision if you don't want people to report murders because they have outstanding parking tickets.

One thing to keep in mind here is that there is a serious problem with the birthday paradox that impacts these DNA fishing expeditions and makes them both dangerous and very nearly useless.

Throwing any old DNA that comes into your hands into a huge database, with no prior expectation that the person whose DNA your searching is involved in a specific crime you're looking to compare them to but just to see if anything in there matches anything else in there, will turn up false positives with incredible regularity

https://www.schneier.com/blog/archives/2008/09/dna_matching_..., https://www.maa.org/external_archive/devlin/devlin_02_11.htm..., etc. DNA fishing expeditions are a terrible, terrible idea.

It's burglary this time, what if it was homicide?

I remember being very troubled by a case from years ago about a cop who knocked on someone's door because neighbors had heard screaming. The resident and his girlfriend had been having loud sex, but agreed to let the cop verify no violence was taking place. During the visit the cop noticed some cannabis plants and the man was convicted of possession with intent to distribute.

My rule of thumb if I were rewriting the law would be that the inadvertently discovered crime must be as or more serious than that which is being reported/investigated. If a person is a victim of or an honest cooperator in the investigation of a serious crime, lesser offenses should be held in abeyance, although a warning of potential liability in future unrelated police contacts would be acceptable.

So if the cop knocked on the door because he suspected homicide and discovered a rape, they should just ignore it?

And anyway, what is a lesser offense? Drug trafficking are serious offenses if you go by maximum sentences.

No, both of those are serious crimes of violence with a victim suffering immediate harm. My idea is that if there isn't any harm to be remediated and the other conditions obtain then enforcement is deferred in that circumstance. Notably stolen goods could be returned; independent discovery of a suspect (unrelated to the contact) would expose them to the normal risks.

Drug trafficking are serious offenses if you go by maximum sentences.

We should employ a more rational approach. I believe there's greater security in maximizing the payoff for cooperation rather than the punishment for prior defection.

Genuine question: had the couple refused to let the cop enter and he barged in anyway (exigent circumstances owing to potential physical assault) - could the cannabis be used against the couple as evidence of a crime or would the non-invited search limit discovery?

My hope is that the cannabis would then be fruit of the poisoned tree and reaffirms my belief that you would never work with the cops to any degree.

I don't know; also I'm not a lawyer so don't rely on me for legal advice!

I guess it would have turned on whether the cops' lingering suspicion was reasonable. Legally, this isn't so much weighing one point of view against another, as the LEO/state being able to construct a reasoned argument to justify the search - which is almost always possible.

For example, I recall a murder case where a guy was pulled over on the freeway in the small hours of the morning and turned out to have a dead body in the trunk. The defendant challenged the validity of the stop at appeal. The reason offered at trial for the stop was that a) there had been a string of auto burglaries in that area; b) it was dry but had rained earlier, and there were still water drops on the car - suggesting it had been parked a short time earlier; c) the freeway was almost empty but the vehicle as staying scrupulously at the speed limit. So the cop reason-ably suspected it could be a car thief and pulled the driver over to check. The court agreed.

The victim of this policy was not the (hypothetical, I have no idea about the actual case) person who was both the victim of a crime and perpetrator of another crime, it's the much larger number of people who did not commit a crime but are being "investigated" every time a suspect's DNA is run through the system because they reported being raped.

They are subjected to the possibility of false positives or misleading true positives (it is their DNA but they didn't do the crime). These are low probability events but the population is fairly large and the number of suspect samples is also large and one images both will only grow in the future.

But I think the real problem is that it shows a certain lack of thoughtfulness when it comes to data use and governance. It doesn't seem like they considered themselves stewards of the most sensitive data possible from people who have suffered horribly. It's possible they weren't aware of the ethical quandary here or they didn't have the technological sophistication to develop a nuanced solution. Either case argues for more restriction in how the data are used while we as a society catch up to the implications of this evolving technology.

There is no ethical dilemma here. No DNA evidence collected from a victim to prosecute a sexual assault crime should ever be used to criminally prosecute that victim. To even suggest otherwise undermines the overall goals of our criminal justice system because it erodes confidence in the system overall and specifically for victims. A shoplifter (or arsonist or murderer or warrant dodger) that gets raped is not less of a rape victim, and the fear of being caught for the former should not scare them away from helping catch someone who did the latter. Your past sins should have no bearing on your access to justice.

No, there is, until legislation is passed. This isn't something which should be left to police discretion, it's clearly a valid search under the law.

It needs to be placed in the category of evidence inadmissible in other crimes, because it's not there right now.

Legislation has been passed per the article at two levels of government (local and federal, with state coming) at this point, so society at large has already condemned the practice. And it is not clearly a valid search, otherwise this lawsuit would have been tossed. There is no ethical dilemma here, and there never was. There was a LEGAL dilemma here, and that has been solved via legislation. The ethics have always been clear, just like how there was no ethical dilemma about a woman raping a man being wrong even though the old laws confined rape to penetration.

> You might disagree, but there's no solving the problem of both needing the help of the police and being wanted for crimes.

There's a reason that so called sanctuary cities are a good idea and it's because of thoughts like this. people avoiding reporting crimes to the police because they are fearful of being deported is exactly how more crime is perpetrated without fear of retribution on marginalized communities. If you are fearful of being arrested for a bench warrant over some parking ticket you couldn't pay for or some other matter... you will not seek help from the police.

> Let's say, instead of DNA, it was an outstanding bench warrant.

A bench warrant is a court order. We have this famous law that says that no warrants shall issue but upon probable cause. If the court has done its job correctly, you only issue a warrant when you have justified suspicion of a crime.

Pulling someone's DNA from a database absent any other evidence of their involvement in a crime has no such judicial review failsafe.

So, yeah, this is different because one is just justice at work and the other is a really terrible fourth amendment violation.

> This is different, yes, but how different?

IANAL, but I would presume this would be an illegal search and seizure and/or violate the protection against self-incrimination.

My understanding is that the cops would need a warrant to get DNA, and they need probable cause to get a warrant.

That is different than someone who has a bench warrant identifying themselves to police.

It's not hard for me to justify it being awful.

It might lead to fewer women reporting rapes/getting rape kits done.

To be fair to the parties involved the SF DA at the time refused to prosecute the case, the SFPD stopped the practice pretty much immediately, and the date of California is passing legislation to prevent this. Everyone seems to have acknowledged that this was wrong and have seemed to put in efforts to stop it.

It’s an interesting federal case for how it can impact other states law and raises the awareness of other “rogue” DNA databases that could be misused.

No. SFPD only stopped the practice (of reporting rape kit matches) after SF DA refused to prosecute this one particular case and it came to light that SFPD was actually doing this. Considering SFPD routinely checked DNA against rape kits for over 7 years, it's possible this was used in other cases.

"Boudin read the police department’s lab report, which said that “during a routine search of the SFPD Crime Lab Forensic Biology Unit Internal Quality Database, a match was detected and verified. Direct comparisons with the samples listed below were performed,” listing the 2016 rape kit sample.

The language suggested that the practice was routine and not an isolated incident, Boudin said, and the head of the crime lab confirmed to his office that such searches are done regularly." [1]

"The scope of how many victims or volunteers may have had their DNA queried by the department's crime lab and matched to unknown suspect DNA to solve a criminal case over the last seven years is unknown." ... "other California DAs told [Boudin] that their crime labs have also admitted to maintaining a database that includes DNA profiles from sexual assault survivors." [2]

So I don't think it's fair to claim "SFPD stopped the practice pretty much immediately" and "Everyone seems to have acknowledged that this was wrong" when clearly the SFPD and possibly other PDs have been doing this for years.

1. https://www.washingtonpost.com/nation/2022/02/14/san-francis... 2. https://www.usatoday.com/story/news/nation/2022/02/23/san-fr...

Here's a 2019 California appeal decision that on the most simple face of it would have invalidated convictions based on non consenting collection of DNA. In this particular case the appellant unfortunately for his fortune subsequently voluntarily provided DNA samples. Whether this could theoretically be overturned on lawful search grounds for procedure and investigation leading to arrest is my speculative question.

California v. Marquez:

https://law.justia.com/cases/california/court-of-appeal/2019...

it is utterly naive to accept such statements at face value ; deception is a daily tool in politics and in court

Sure, but they aren't just statements. Sooner or later, in the face of mounting evidence, you have to put aside your cynicism and admit that sometimes people do things that they say they will do.

Yeah but so is incompetence…

I think everybody is going to be super cool about this while they find out who set things up to record victim DNA. It's a nice little powder keg that's been just sitting there for a while.

It might make some practical sense to have a system that keeps some record of victim DNA. During an investigation and analysis of a sample, victim DNA can be used to rule out sources of unique DNA. It makes yet more sense to sequester victim DNA into another database and have a policy to destroy the data once it's no longer necessary.

There is of course no reasonable expectation that any other PD will take the hint and follow suit.

There's also the issue that the more justice-minded SF DA was recently kicked out and an aggressive pro-police DA installed.

You call allowing rampant looting / shoplifting "justice minded"?

Related: [1]

> If you were born in the United States within the last 50 or so years, chances are good that one of the first things you did as a baby was give a DNA sample to the government.

> The blood is supposed to be used for medical purposes—these screenings identify babies with serious health issues, and they have been highly successful at reducing death and disability among children. But a public records lawsuit filed last month in New Jersey suggests these samples are also being used by police in criminal investigations.

Previously discussed on HN last month. [2]

1: https://www.wired.com/story/police-used-a-babys-dna-to-inves...

2: https://news.ycombinator.com/item?id=32473403

> chances are good that one of the first things you did as a baby was give a DNA sample to the government.

This seems pretty disingenuous - yes you gave a blood sample (which has DNA in it) but no DNA genome sequencing is taking place - they simply check it for a series of disorders to make sure a baby is healthy and yes gather aggregate data on prevalence of disorders at the population level.

But do they keep it somewhere for further analysis later (very useful medically if you want to backtest things) or do they programmatically destroy it?

In nearly every western country (EU countries, Canada, Australia, New Zealand etc) the samples are securely stored indefinitely - in the US it depends on the state but many do keep the samples there as well. That does not mean they are readily accessible- there have been cases of misuse but it is extremely rare.

From a DNA perspective one can only use the Guthrie test samples for about a decade after collection so yes, in a worst case abuse scenario we have cards that could be mined for DNA across a bunch of <10 year olds.

> From a DNA perspective one can only use the Guthrie test samples for about a decade after collection

Why is that? Is it because of sample degradation of some kind?

Yes - blood must be kept at very specific temperatures and conditions if you want to preserve its usefulness in DNA sequencing - most of these are dried blood cards without strong controls which makes them not particularly useful for good DNA data.

Scientists have extracted usable DNA from from 7000 year old corpses. I imagine the technology exists for a decades old blood sample if it’s stored at least somewhat properly.

Yes that is very true - There is however quite a bit of difference between a full corpse that is mildly preserved and a dried fleck of blood - a big difference too between a stored fluid blood sample and these pinprick dried sample.

It's probably prohibitively expensive at the moment.

Would you prefer it said "blood sample that can later be mined for DNA"? No one has a problem with the initial health screen. The problem is that they keep it around later in a form that can be used like this.

Maybe - the blood isn’t collected for DNA sequencing so they aren’t DNA samples. Furthermore DNA could only be realistically extracted from them for limited time (about a decade). If you want to view it as a DNA bank, it’s a pretty terrible and temporary one.

The newborn blood is often sequenced, and often sold or provided to third parties in a loosely anonymized fashion.

Would love to see a citation for your second claim.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3883779/

“We and others recently have shown that DNA extracted from Guthrie cards (up to a decade old) or blood spots can be used to perform whole-genome methylation analysis”

I don’t know why they write that, but one of the papers they quote for that claim reported success with samples up to 19 years old and in turn cites a paper that reported “genotyping whole-genome-amplified DNA” from up to 25 year old blood spots. I don’t know what this means exactly, it definitely isn’t the methylenation thing, but I think it’s a good indication that blood much older than a decade is viable. Both of these papers also report no differences in results between older and younger samples, only between different extraction methods and amounts.

> 19 years old and in turn cites a paper that reported “genotyping whole-genome-amplified DNA” from up to 25 year old blood spots

You are notably omitting that those specific samples were kept at -20° C. I don’t know any country that does that for their Guthrie samples.

I did actually miss that. But my point is that none of the papers established a limit at 10 years and it’s not clear at all how the authors came up with that number.

Is a whole geneome methylation analysis needed for criminal prosecution? Seems like the bar would be lower there. You don't need to know the whole sequence in order. You're just comparing it against a sample to see if there are enough matches to establish a linkage.

I'm no expert though. Hopefully others can weigh in.

They absolutely use these in court (incl. criminal prosecution) in New Zealand and have since at least 2000:

https://www.nzherald.co.nz/nz/lawyer-challenges-courts-right...

and

https://www.stuff.co.nz/national/crime/97840280/parents-upse...

You can fill out a form and demand they return the samples to you.

Even if you can trust the government today, there is no guarantee they can be trusted tomorrow. cf. the abortion stuff in America.

I can't believe I am the minority on this, but I don't see a problem. This woman volunteered her DNA. She has committed a crime in the past. Is it a misuse of DNA if a criminal is brought to justice, where that DNA was literally volunteered?

This does not undermine the fact this person was raped, and that is horrible, BUT justice will be carried out in that case. The justice system cannot overlook a reported crime when there is evidence to persecute because a criminal involved in that crime has been hurt.

It’s a matter of not disincentivizing victims from cooperating with law enforcement. If there’s the possibility that some information you give the police could be used to prosecute you in the future, that could deter people from going to the police or seeking justice in the first place.

In terms of DNA specifically, it’s kind of a weird power play to say “if you want us to convict the person who raped you, we’ll have to put your DNA into our database to make it easier to convict you in the future”.

I think that's a bit of a bad argument, maybe a strawman. The whole point of the law is to make good citizens so we can all live together. It is in the best interest of both individuals and a community as a whole to not break the law. Breaking the law has consequences. It is the job of the police and justice system to find criminals and punish them. Finding criminals requires the justice system to find evidence and proof.

Let's make another scenario: someone's home was burglarized, and the family who lives in the home submits DNA so the police/investigators can flag finger prints/DNA not left by the family. It turns out the father of the house raped and killed several women 30 years before. The DNA submitted by the family has effectively convicted their father by volunteering his DNA for crimes he committed 30 years ago. Would you be equally upset that this rapist and murderer has been caught?

Yes, you can scale the offense up to the point where most would answer yes to allowing this.

It’s interesting that in the past I wouldn’t have been extremely worried about it. But times have changed. Asking for consent is now considered old-fashioned. Law enforcement has been taking every technological shortcut offered as soon as it is in budget.

It’s a dangerous time we’re heading into. Well, already arrived in. Big brother panopticon is a reality. In this environment I see the precedent in a new light. Reminds me of the movie Gattaca, which is not a feel-good film.

> Yes, you can scale the offense up to the point where most would answer yes to allowing this.

So, you are saying the judicial system should only use evidence depending on how severe the crime is? That is a very poor precedent.

No, I'm saying you have raised the severity with your example perhaps to further your argument in favor of storing this data indefinitely. "What about the children?" Indeed.

If you are in favor of the police having DNA for this purpose, then they should be given everyone's DNA birth samples.

Arguing that it is okay to only take the DNA of people who willingly cooperate with police only incentivizes people to never cooperate with police.

The worrying part of this story is that it might lead to victims being afraid of seeking help.

There are more victims in this story: namely, the people whose dwelling was burglarized. Do they not deserve justice, too?

Yes and the investigators should be allowed to use all the data available to them.

One would expect that in such a situation only the DNA of the criminal who committed the rape would have been recorded. My issue with the situation here is that a rape kit should not have been a source of data.

That the DNA of a victim should not have been saved and added to a database. It should not been made available to the investigators.

It doesn't matter what they deserve.

Suppose that you have a horrific knife slasher, let's call her Sally. She runs around town and kills people with a knife.

However, let's suppose that she gets raped. Will it not be beneficial to society that she is willing to go to the police over the rape case?

It's like perfidy. As a general principle you don't use the fact that people want to do something good against them, even if they're bad. There may be deeper situations where this analysis doesn't hold, for example, if your enemies are providing people schooling or food, that may be an even stronger reason why it's important to attack them, but aside from things like that, this generally holds.

If Sally is going around stabbing people maybe her rape story is a little bit suspect. Maybe she's deranged and is trying to do anything in her power to get the nosy bird watchers off her back.

I think the issue is the person that goes to the police and submits the report has essentially shielded themselves from all criminal liability. But of course the people the people who's DNA is being tested get no such protection.

It'd be one thing if, as a general rule, only people that explicitly consent can have their DNA used in a search. But in reality the police have this huge database of DNA nobody consented to be used to arrest them, and then Sally comes in, bloody hands washed, and gets to use this giant database of un-consenting victims for her own ends, but none of her own victims can benefit from her DNA, even though she was perhaps the only one of the bunch who willingly gave DNA to the police.

In other words, if it really is a privacy rights violation to test someone's DNA without their permission, and maybe that's the case, they wouldn't need to collect it because they wouldn't have anyone to test it on.

Of course she's deranged, she's stabbing people, but the point is that you still want her to report the rapist-- imagine that you were her neighbour, you'd want her to report burglary attempts, surely? Similarly with rape.

Whether she is reliable only matters for the investigation of the crime.

I don't see it as a matter of a privacy violation. I see it as a socially contra-productive act, a kind of perfidy-- like pretending to surrender and then attacking somebody in war or pretending to be a medic in order to attack somebody.

Honestly, the perfidy claims just really throws me for a loop. I genuinely don't understand how the police using evidence you willingly provide them to charge you is perfidy.

> like pretending to surrender and then attacking somebody in war or pretending to be a medic in order to attack somebody

There's international courts with the lofty goal of prosecuting "war crimes" and if you submit evidence that some country or group is committing war crimes, like killing medics, you don't get some special protection from the evidence you submit. If you submit a video where you and your opponent are both killing medics, everyone involved can be tried for war crimes. If you submit a video where you're killing A's medics and B is killing your medics, everyone involved can be prosecuted. In the US if the prosecution, has evidence that's both inculpatory and exculpatory they don't get to just tell the jury to ignore the exculpatory elements. I don't see how any court could be fair if this was not the case.

So if there's a hierarchy as you say, does that mean you'd be fine with the reverse situation happening? DNA from a burglary used for a rape case?

As in, if you are the victim of a burglary, and you voluntarily submit your DNA because that will somehow help catch the perpetrator…? That's a pretty tortured hypothetical, but sure — the police shouldn't be able to use that DNA as evidence against you.

No, I do not say that it's a hierarchy, in fact, that is almost the opposite of what I am saying.

What I am saying is that one should not treat information given for a socially useful purpose so as to discourage anyone from offering the information for that purpose.

If someone volunteers his DNA for research, you do not look for crimes using that information. If someone volunteers his DNA for a rape inquiry, you do no search for burglaries. If someone volunteers his DNA for a burglary, you do not use it in rape inquiries.

The goal is to treat information in a limited way in order to ensure that as much useful information as possible can be volunteered.

Fair enough. That's not what I understood from your initial post, so I appreciate the clarification.

I got the hierarchy idea from your example that catching a rapist is better than catching a knife slasher and extrapolated from there.

No, the core idea is that you want the incentives to be right even in bad situations.

So if your enemy has medics who he lets tend the wounded, even if they're your wounded, then you stay away from them. You want surrender and truces to be respected, so you don't make use of false surrender or truces as ruses.

But even though you respect such things, your enemy is still your enemy. Similarly, in this case Sally is still a criminal, but you want her to report crimes if she happens to be willing to do so for some reasons, so you don't exploit people's reports of crimes in order to go after those people themselves, unless the report itself is malicious or deceptive and is therefore not a report at all.

No need for a hierarchy, just a simple rule: if someone goes to the police to report a crime the DNA they provide as part of that process cannot be used against them.

That‘s a very simple rule.

Then why mention incentivising behaviour with some crimes over behaviour with other worse ones?

That’s a bad argument, no doubt.

But they use the DNA of a rape kit running it mainly against criminals whose DNA they got for other criminal activities.

They do, no one wants to make it harder to get justice for anyone. The issue isn't "oh no it's too easy to get justice" it's "victims of a crime shouldn't be afraid to report it".

The good of society needs to be considered. Rape is a far more serious crime than burglary.

Deliberately using someone’s rape to collect DNA so they can be later prosecuted for minor crimes is absolutely unconscionable in my opinion.

If she had raped or murdered someone, would looking at her DNA then be justified?

No. You could use that as justification for anything. At that point, we could just throw due process in the trash and have government thugs going around collecting blood samples from people or doing random house searches because "we might catch a murderer."

How far do you go? I'd argue that matching DNA from a rape victim to charge that person with a crime is a violation of due process. The expectation with a rape kit is to find the DNA of the rapist. That expectation and trust was violated.

Collect the rapist's DNA and throw the rest in the trash.

Only if ascertained as a criminal in the justice system. In America we are innocent until proven guilty, which means unless we've been prosecuted for another crime, our DNA should be completely inaccessible in a court of law.

DNA should be scrubbed from govt records if it doesn't belong to someone with a felony. Even misdemeanors I'd say shouldn't qualify people for a permanent DNA record on file.

Hard line on privacy, so no.

It is (almost) never correct to violate someone's privacy.

Privacy is paramount.

there are exceptions to (almost*) every rule...

They do. However once this becomes known you become progressively less likely to derive any benefit from it as criminals will simply stop reporting rapes, while you will scare away far less serious criminals and a lot of non-criminals from reporting rapes too.

Before you even consider the harm to those victims from not being able to seek justice, there's also a real risk that in doing so you may end up creating more victims by losing the ability to catch a proportion of rapists some of whom may reoffend.

> There are more victims in this story: namely, the people whose dwelling was burglarized. Do they not deserve justice, too?

Yes, but there's a conflict here, and it's penny-wise, pound-foolish to prioritize justice for the people who were burgled, when that would very obviously deter people from reporting far more serious crimes.

> There are more victims in this story: namely, the people whose dwelling was burglarized. Do they not deserve justice, too?

They are also victims, because their DNA was placed into the same system for the crime of having their house burglarized, which is almost as serious as the crime of having been raped.

People take priority over property.

And rapists targeting criminals, because the victim won’t go to the police.

Only if they are criminals?

This includes anyone afraid of having their DNA in a database for whatever reasons. Reading some of the HN posts about 23andMe and such, this includes a lot of people.

You do not need to be a criminal, you only need to be afraid that DNA will be misused in the future.

Political dissident, activists and whistle-blowers come to mind.

> You do not need to be a criminal, you only need to be afraid that DNA will be misused in the future. You do not need to be a criminal, you only need to be afraid that DNA will be misused in the future.

Misused how exactly? It is extremely trivial to collect someone’s DNA if you are trying to actively target them… but even then… what would the gov do with it wrt activists dissidents etc? maybe I need to read more sci-fi

> I need to read more sci-fi

Or just be a little thoughtful. If I want to persecute homosexuals, I can go ta a gay bar and collect DNA. If I want to persecute crypto-Jews, whenever we bust a place where some of them have gathered to worship, we can catch the others in the area by collecting DNA.

In the general case: we can designate a place to be an enemy place, and arrest the people who we can prove have been in that place.

Why is DNA required for that though? That seems like a hugely expensive and complex replacement for a camera - not to mention if the gov wants to wrongly prosecute or imprison people… they can just do it - no DNA required.

It seems to me like DNA is just new and techie so people are inherently thinking it is more useful and scary than it really is.

https://www.bbc.com/news/world-europe-60346300:

> French diplomatic sources told Reuters that Mr Macron had been told to choose between accepting a Russian PCR test to get closer to Putin or abide by strict social distancing rules.

> "We knew very well that meant no handshake and that long table. But we could not accept that they get their hands on the president's DNA," one of the sources told Reuters.

> The source did not elaborate on how the Russian intelligence services could exploit Mr Macron's DNA.

Doesn't provide insight into why one should be concerned, but it's useful information to know that nation states are wary of each other in this regard for some reason even if we don't know what that reason is.

Country-level security works out of an assumption that everything may be used against it, even if it's unclear how exactly. Take everything, give nothing. FSB guys have an old joke: "We don't hire atheists. Why? In case God exists". They're basically professional paranoics on all sides, I wouldn't think too much of it.

This whole story sucks. She would never have been charged or prosecuted if she weren’t robbing people.

There’s a general idea that evidence you provide about one crime can be used to prosecute you or someone else for another crime. Why is this a special exception to that rule?

If she called the cops about a rape and they recognized her as having outstanding warrants, should they let her go? What if the warrants are for murder?

What possible legal exception would apply here, but not apply across the system to a huge number of other cases?

The second order effects are obvious and negative. Fewer people will report crimes if doing so requires putting their DNA in a government database. If more crimes go unreported then everyone is less safe.

For example, say the police routinely collected and stored DNA from burglary victims in the course of burglary investigations. If that makes people likely to report burglaries then it's possible the burglary she was arrested for might never have been reported in the first place. If fewer crimes are reported, fewer criminals are caught.

Even if you yourself are perfectly comfortable putting your DNA into a government database as a prerequisite for reporting a crime, you may be less safe overall if others do not feel similarly.

Police obviously already have access to outstanding warrants. Police should not have access to a victim's rape kit DNA except for use in solving that rape. The reason is that you don't want to discourage rape victims from reporting.

How is that different for other crimes? If a murderer is a victim of burglary and the police find a dead body in their house when investigating the burglary, should they not do anything?

The rape report was from six years ago. You really think it’s a good idea to say “you can report your rape, but we’re going to store your DNA in perpetuity to use against you”? You don’t see a difference between then and finding a dead body when investigating a burglary?

Alright, let's improve the analogy. You report a burglary, and one of the stolen things is a very unusual sword. You tell the police that no one else has a sword like this, which makes it very valuable. Six years later, you commit murder with the sword; when the police investigates it, one officer remembers that you're the only person with this type of sword. Do they have a right to mark you as a suspect?

DNA is different because it identifies you directly. That creates a chilling effect. The likelihood of someone not reporting a burglary to the police because in a few years they might want to murder someone with their unique sword is… low. Rape is already infrequently reported because police are often hostile; we definitely don’t want to add that a crucial part of the victims will be forever on the police’s radar, just in case it ever becomes relevant, to be used as evidence against them.

IANAL, but you normally would need probable cause to collect DNA from someone if you want to use it as evidence. There would be probable cause to collect someone's DNA if they have an outstanding warrant. No such probable cause exists for a rape victim.

> She would never have been charged or prosecuted if she weren’t robbing people.

Innocent people are charged and prosecuted all the time. Otherwise there would be no need for a trial.

In Sweden the "blood bank" sample taken on all newborn children was used to identify the murderer of foreign minister Anna Lind in 2003.

This was very controversial at the time. When my first child had her blood sample taken a few years later they assured me that it was used for screening purposes and for annonymous medical research only. I reminded the nurse of the Anna Lind case and she got extremly upset with me.

All newborns in California since 1966 have also had their DNA stored. You can request the destruction as a parent or for yourself here: https://www.cdph.ca.gov/Programs/CFH/DGDS/Pages/nbs/nbsconse...

How did the nurse get upset?

She got very huffy and flat out denied that the blood bank dna was used to identify the murderer. He wans't covicted using that DNA, true, but the identification was no secret.

The police had made 2 arrests of persons they later had to release at that point, so I guess they didn't like to take any chanses with the third.

It should be said that the general opinion outside of medical reserarch was supportive of the police.

That's interesting, almost like the nurse was personally invested in this somehow. Not financially, but maybe morally?

I guess she had some integrety and loyalty to her proffesion. She like everyone else had been told that this was a registry for research and screening, and absolutely not the first step in some police state wet fantasy.

She hated that they had made her into a liar.

The registry is an enourmously valuble asset for the medical community but parents have to consent to the blood sample, so the police getting access was problematic to say the least.

In the not so distant future the government will have have a database with everyone's dna. It's just not possible to keep something secret that you literally shed everywhere you go.

> In the not so distant future the government will have have a database with everyone's dna. It's just not possible to keep something secret that you literally shed everywhere you go.

There's an important difference between physically being able to keep something secret, and legally being able to keep something secret.

For instance: today the government has the physical ability to break into my house and shoot me in the head for no reason at all, but they don't have the legal ability to do so. Likewise, they have the physical ability to illegally obtain evidence, but not the legal ability to use that evidence to convict someone at trial.

Glad you highlighted "today", because tomorrow is much different as supreme court and FBI become more politicized. Rules seem to change on a whim. Or as in Canada gov't can declare an emergency an seize protester bank accounts. Another thing to point out is "today" should be in "today in some countries". Russian oil executives are mysteriously falling out of windows and boats all of the sudden.

I mean ever heard of fred hampton? That one blew up publicity-wise and is fairly famous now but there's no reason to think it was the only relatively recent example or that they've ever stopped doing things like that.

The rules aren't meaningless but they also don't stop the government from assassinating you if they decide that works out best for them.

> today the government has the physical ability to break into my house and shoot me in the head for no reason at all, but they don't have the legal ability to do so.

Isn't that exactly what they did to Breonna Taylor in Louisville? Haven't seen anyone arrested for that.

Technically the police did have a warrant and legally executed it. Sure the recent scuttlebutt is that the warrant was created from falsified data, but at the time it was legal.

Not just scuttlebutt. One of the detectives has already pled guilty.

https://www.cnn.com/2022/08/23/us/breonna-taylor-ex-officer-...

So then the original poster was wrong?

> Haven't seen anyone arrested for that.

Now you have:

https://www.bbc.com/news/world-us-canada-62427546:

> Breonna Taylor: US police charged over shooting death

> Four US police officers have been arrested and charged over the fatal shooting of Breonna Taylor.

That happened a month an a half ago.

No, I saw that a month and a half ago. From the article: "The federal indictment announced by Attorney General Merrick Garland accuses the four of civil rights offences, unlawful conspiracy, unconstitutional use of force and obstruction."

None of them have been charged with breaking into her house or shooting her.

> None of them have been charged with breaking into her house or shooting her.

You're missing the point.

No, I think you are. They are finding other ways to charge these people, they are specifically not being arrested for murdering someone. Breonna Taylor isn't an isolated case, but it's finally one where they're trying to get some kind of justice through charging these people with something. They don't actually believe they'd get a conviction with charging them with murder, so while it might not be legal in theory, it is in practice.

Only once the feds stepped in, though.

> Only once the feds stepped in, though.

What's that got to do with the actual point here, which is privacy that's infeasible through purely physical means can be implemented through legal means?

As an aside, tech people can be annoying black and white sometimes, and do things like misinterpret imperfect solutions as literally no solution at all. DNA is not going to be protected by all the buzzwords we use to describe encryption systems, but that doesn't mean it can't be protected.

Not at all accurate. During the Obama administration the groundwork was laid for the extrajudicial execution of American citizens

https://www.theguardian.com/world/2014/jun/23/us-justificati...

https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla...

Anyone deemed to be "part of the forces of an enemy" may be targeted.

Hasn't this always been the case? I assume if you were after a foreign general and there are some American mercenaries in the same building well "I guess they're out of luck"; still gonna bomb the complex.

Historically the case for American's citizens has been a capture or kill doctrine. It's fine if in the midst of a capture, they happen to be killed.

Now the government has the explicit authority to kill citizens.

Technically they can do it legally. Few years back in Kansas City (iirc), some guy was basically prank calling the police on a gamer, but got the wrong house, police just knocked on the door. No weapon. Killed some the dad, and walked. No repercussions at all for the police. The prank caller got like 5-10 I think, as he should. But there's something wrong when somebody dies by cop and they are unarmed and don't serve time.

>> For instance: today the government has the physical ability to break into my house and shoot me in the head for no reason at all, but they don't have the legal ability to do so.

> Technically they can do it legally. Few years back in Kansas City (iirc), some guy was basically prank calling the police on a gamer, but got the wrong house, police just knocked on the door. No weapon. Killed some the dad, and walked. No repercussions at all for the police. The prank caller got like 5-10 I think, as he should. But there's something wrong when somebody dies by cop and they are unarmed and don't serve time.

It sounds like that was a mistake on the part of police. I was not talking about "SWATings gone wrong" or anything like that. I was talking about deliberately killing someone just because you can.

I believe you are talking about swatting [0]. Framing this as a prank call is a bad way to describe it because it trivializes the attack. Based on your whole comment, I assume that wasn't your intention though.

[0] https://en.m.wikipedia.org/wiki/2017_Wichita_swatting

I agree, but when it's this difficult to physically kept it secret, then someone will collect it. That someone will then tell the police in return for some favor and the police will cook up some parallel construction. The result is the same except more corrupt and expensive.

Even if you didn't shed it everywhere, we really just need a database of a subset of people, which we can use to match close relations to and drastically narrow down the search.

e.g. how the Golden State killer was finally found, https://en.wikipedia.org/wiki/Joseph_James_DeAngelo#Arrest_a...

Your DNA is fundamentally public information.

There are lots of things that the government has technically been able to do but that laws are preventing it from doing. Society has a choice here. I'm not going to argue one way or another, but having an honest debates about trade offs either way and making an explicit decision would certainly be better than things like the case mentioned in the article silently creeping in.

> A prenatal test used worldwide sends gene data of pregnant women to the company that developed it with China's military. The U.S. sees a security risk.

https://www.reuters.com/investigates/special-report/health-c...

re: Gattaca

We aren't there yet. That's still an important fact, when determining the legality of how DNA is used.

Such an interesting movie… I confess as a high school kid when I first saw it I thought “imagine the possibilities“ whereas others were thinking “that’s sad and horrible“ …

It's quite a silly movie actually.

There's no need to do that amount of genetic testing to determine a person's potential when the zip code they grew up in will suffice.

There is nothing silly with characterizing a person's abilities, potential health issues, intelligence, and physical extents for purposes of the government via genetics. It's horrifying and very possible. Likely going on in some countries already. I'm not sure why you suggest otherwise.

I feel like you don't actually remember the movie at all. It's an amazing movie.

It's only the same in the way that "A stranger comes to town" is a description of every single movie ever made.

If you want overt zipcode inequality then In Time is a better match. (but much lesser of a movie)

Oh I do. Gattaca is my favorite film of all time that I rewatch every other year.

I was merely being tongue in cheek about the modern reality of class inequality.

So, Hunger Games?

did you become a geneticist?

This might sound far-fetched, but I believe The government already has genetic information on north of 50% of the population.

However, inefficient distribution of data and legalities of its use have deeply slowed widespread use.

The future we should fear is one with an efficient and interconnected government, capable of pulling a DNA match out of a database five government agencies removed, on the side of the highway…

My biggest fear is footprinting tech that can literally follow us everywhere and even ID us if we're wearing a mask by our size+gait etc...

Mix this with some dystopian social credit system where you get points for reporting the littlest offense to big brother, and some more spying tools to spy on our own people and we literally get thought police. Soon it'll be 1984 IRL.

I don't plan on being criminal, but what's legal today could be criminal tomorrow, or what's legal in one city might not be in another, etc. I don't think we're there yet, but the future could turn all shades of bad if we don't get upset over privacy violations now.

Not far fetched at all, people forget about the largest global DNA collection event in history that happened very recently, covid testing.

Why should we fear this anymore than the current government?

They already have too much power and know too much about us. Governments are really just the elite in control and not to be trusted. Sure some countries have a bit more turn over that others (democracies) but in the end you should always be suspicious of government and very very careful about whatever power you allow them to have through your vote. In many countries it is already too late without armed rebellion (turkey, china, russia, venezuela, for example)

I agree just stating that governments won’t be worse because of this.

this should be illegal to even create unless you are 100% convicted of a crime. Government should not have access to such a databse.

Other more important aspects aside, I'm curious how they got DNA from a burglary case. Did she poop in the toilet and not flush it? Cut herself breaking a window?

It doesn't have to be something overt as leaving a log of DNA in the toilet. There could be skin cells left near stolen merchandise.

So what you're saying is, if a burglar can find a hair on a sidewalk on their way to commit the crime, the prosecutor will tell the jury that there is a scientifically proven 99.999999999% chance that it wasn't them...

See the film, The Town (2010), where Ben Affleck runs by the local barbershop to collect hair to toss around at the crime scene. Though presumably the idea there was that all the local men, including the bank robbers, get their hair cut at that barbershop.

plenty of ways to frame people, think about how anyone with access to a life insurance plan database can frame anybody for murder if the target "recently" opened a plan with someone they love (who is now dead)

prosecutors and jury eat that up daily

some serial killing contractor just has to sort by new, and there's probably some exposed S3 buckets or other Amazon datastores floating around

That'd actually make for a good movie or tv show, maybe breaking bad style. Insurance adjuster housewife struggling with a sick kid, starts running it as a side project to pay the bills or something, maybe she's in cahoots with the insurance company CEO, they do the murder for hire thing, and then frame the relative, and keep the insurance money for themselves. Or maybe instead of sort by new, they sort by highest risk (oldest/sickest) and find ways to frame the beneficiary.

I think it would make for a good investigation for the Innocence Project

But I’m not even sure how a new suspect would be caught

Even the most obvious cases seem to rely on someone else confessing, often times after that someone else is in prison for something else

No because hair itself contains no DNA.

https://www.genomebc.ca/blog/forensics-breakthrough-dna-extr...

TIL, thanks!

Very interesting but complicated expensive, and limited to very specific cases.

"Still, neither she nor Dr. Green thinks the technique is likely to be widely embraced any time soon. Forensic labs are not set up to implement it and it’s expensive. Each hair costs several thousand dollars to sequence, and that’s before hiring a genetic genealogist to try to identify its source."

I would be truly impressed if that were the case. Most times you can barely get the police to show up for a burglary, let alone sequence DNA from dust near stolen objects.

Or simply just dropping a little hair.

Leave a hair follicle behind?

As pointed out by wahern above see this: https://www.genomebc.ca/blog/forensics-breakthrough-dna-extr...

Most likely just hair.

Give your DNA or personal deets to any organization, and you've immediately lost control over your privacy in perpetuity (no pun intended) in unknowable ways, possibly even after you cease being amongst the living.

The frustrating thing here seems to be the miss of justice. It takes extreme examples before anyone will correct a wrong. The police are cross referencing DNA from alternative database, 23and me, etc, .. but there is very little protection to stop them.

Yes, this is a case where the police are checking the dna collect from a police action (where she's the victim) to a police database of a prior crime. (Less bad than 3rd parties) However, this still brings up the question of rights to privacy and limitations of police through third parties. (Police have been found to use data aggrigators to find and track people without warrants)

Not a lawyer but a big question: How do you assert your rights if you don't know if they've been violated. (I.e. you're been investigated due to what a third party has collected) We need privacy protection laws. My understanding is without them you have to be an aggrieved party to protect yourself.

You are fingerprinted to get a drivers license in california. If the cops find prints at the scene and use this database to see who it is, thats no reason to sue. This should be considered in the same light as its essentially the same data, just a unique marker for an individual.

This person committed a crime and freely gave their DNA. If you have ever taken a 23andMe or other test, the government has your DNA.

All I can think of is "no, not like that" meme

i think this incident, and the 5th amendment, are siddleing up next to each other ready to have a very intimate discussion.

I guess the legal question is "was her DNA medical records" or "was her DNA evidence". If it was the former, I'd say she has a case because of HIPAA. If the latter, not so much.

That seems like the wrong line to draw here.

Really, we may want to make sure we have a system where victims of crimes aren't afraid to come forward for help, for fear that coming forward may result in an increased likelihood that they themselves are caught for a crime they previously committed.

Even typing it out, it doesn't feel right. We obviously want to catch criminals, even those who are themselves victims of crime. But we also need to be practical and recognize that breaking cycles of victimization wherever you can is a social good, and that anything that makes people too afraid to interact with the law enforcement and justice system is problematic, because it expands the outlaw class.

I don't know if that's right, but it is my immediate thought.

Some police departments have a policy of not arresting on some warrants when responding to a domestic violence or sexual assault call, because they don't want to discourage people calling about these kinds of cases just because they have a misdemeanor summons out or whatever. This seems like a very analogous situation: if rape kits can be used as evidence against the reporter, it will discourage anyone with minor criminal activity reporting rapes. This significant curtails a vulnerable population's access to law enforcement assistance and will advance a reputation that e.g. rape of sex workers will not be prosecuted.

People tried protesting this decades ago when the government started collecting fingerprints for everything. Get a federal job, give your fingerprints. Get a nursing license, give fingerprints. Get a carry permit, give your fingerprints. It didn't work then and I'm not sure it'll work now.

> Get a federal job, give your fingerprints. Get a nursing license, give fingerprints. Get a carry permit, give your fingerprints.

These are privileges. Justice after being raped is a right. If you’re running from arrest, it’s valid to bar you from nursing others or carrying a concealed gun.

> Justice after being raped is a right.

https://en.wikipedia.org/wiki/Inmates_of_Attica_Correctional...

Justice doesn’t mean guaranteed prosecution. Not being able to even submit evidence without the threat of arrest is categorically separate from a prosecutor declining to prosecute a case they should have.

You do not have a right to prosecution.

You do not have a right to submit evidence.

You do not have a right to have an investigation conducted.

You usually do not have a right to even have the police show up.

You may not like that, but that is the law. Criminal law enforcement, including prioritization and de-prioritization, is the prerogative of the Executive.

The dehumanization will continue until GDP improves.

Seems like a rounding error in the things we need to fix in criminal justice. Until it happens to me, of course....

This is the right way to frame the thinking.

If it wasn't illegal to use her DNA in this fashion, the law needs to be changed to make it illegal. The police have myriad tools to pursue property crime, and it does more good than harm to remove this one from their hands.

Police are not subject to HIPAA. The law only applies to Covered Entities (health care providers) and their service providers ("business associates"). If the DNA was collected outside of that framework, or the police had legal access to the data, I'm not sure that law covers this situation.

Note: HIPAA was designed to make access to medical data easier, not harder and it's not some magic law that protects people's health records from prying eyes.

Even if the DNA was evidence as part of her domestic abuse / rape case, I think there is an argument to be made that using the same evidence for other cases is an unreasonable invasion of privacy (as defined by the 4th amendment). I should be able to have my day in court without giving the government carte blanche to do whatever they want with my personal effects in the future.

Something you turn over to the government is not private from the government. Expecting otherwise is clearly not "reasonable."

A criminal prosecution is not your day in court. A crime victim is not a party to a criminal proceeding. There are maybe a handful of cases where the concept was even contemplated, and it was on a motion to consider a victim's out-of-court admissions as evidence under R. Evid. 801(d)(2).

New Mexico v. Vallejos (N.M. App. 2019) ("The State's Motion to Amend, containing Victim's statements, does not fall within the hearsay exemption in Rule 11-801(D)(2) because Victim is not a party opponent."); Ohio v. Ingram (Oh. App. 2016) ("We re-affirm our holding in Browning that an alleged victim who testifies as a witness for the state is not a party-opponent within the meaning of Evid.R. 801(D)(2).")

I think this is too myopic a view. Whether or not one is a party in a court proceeding doesn't mean you don't have "your day in court," which is just a chance for you to share your account of what happened. That account may be an oral recantation or DNA you provide as part of the investigation. In either case, the important part is that you, by offering evidence and testimony, are doing a service to society by helping remove a rapist from the streets, thus making society safer. Why the government thinks its a good idea to reward this service with later invasions of privacy is beyond me.

It is interesting because this type of protection doesn't really exist in other areas. If you let a cop into your house for domestic abuse and they see an illegal gun, drugs, ect, they can certainly use that evidence against you.

And Yes, this IS a barrier to victims who are also criminals seeking help when they need it.

That's not how HIPAA works. HIPAA only applies to "covered entities". Covered entities are: healthcare providers, healthcare plans, or healthcare clearinghouses. HIPAA rules do not apply to anyone who is not one of these.

Isn't the blood drawn by a healthcare provider?

That's a good question: was the phlebotomist contracted or a full-time employee of SFPD? I feel like that could be a major part of the case.

It doesn't matter. Nobody is going to have a rape kit done and then not sign a consent form to give it to the police. Giving it to the police is the entire point.

Maybe, but regardless, once you've shared that data with the police, they aren't bound by HIPAA.

That's probably accurate-enough for the current case under discussion, but HIPAA absolutely does apply to law enforcement. Indeed, it specifically addresses disclosures to law enforcement about victim information in the regulation. 45 CFR § 164.512(f)(3).

Notably, these provisions require law enforcement to do certain things in order to receive some PHI. For example, under some circumstances, law enforcement must represent that they do not intend to use the PHI against the victim.

If they do so under false pretenses, fully intending to disclose that information to (for example) another detective working on a burglary case, they are guilty of a 5-year, $100,000 felony. 42 U.S.C. § 1320-d.

Again, for the current case, in which it appears the complaining witness provided the sample directly to law enforcement, your comment is true enough. However, it is misinformation to say that HIPAA does not apply to law enforcement or require them to handle data a certain way.

Those are rules that a covered entity must follow regarding disclosure to a law enforcement agency. They are not rules that law enforcement must follow.

HIPAA does not obligate law enforcement to handle data in a particular way.

Here's a message from the medical board when a covered entity disclosed my information to law enforcement:

>As a detainee of the CBP under the suspicion of drug trafficking, you are subject to search (external and internal). Nurse *** was performing her duties as a nurse of a detainee under the jurisdiction of the Border Patrol (CBP) and therefore not a violation of the Nurse Practice Act

That is, if you are merely detained by police (no court order, warrant, or arrest needed) any act a medical professional performs is automatically unreproachable and considered "under the jurisdiction" of the police rather than the medical care provider. Per my correspondence with the board merely being detained allows them to do whatever they like, including touching you to initiate medical care, without your consent and then share it. This is not my legal opinion but the actual response of the board in my state.

-----

>That has absolutely nothing in common with this scenario. Nobody detained this woman to collect DNA samples, she volunteered it. And we're talking about HIPAA not the Nurse Practice Act.

This is so far off base I think you must be trolling. Releasing patient information to police has everything to do with HIPAA. "External and internal search" has everything to do with extracting DNA from a patient. The Nurse Practice Acts typically enable boards to punish for improper violations of patient confidentiality, they needn't use the word HIPAA instead of NPA to cover activity protected by HIPAA. Surely the circumstances are not the same, but then again I never said they were. Your statement 'nothing in common' is clearly patently wrong to the point I can only guess it is a purely inflammatory statement.

------

>This person voluntarily gave the police that DNA in 2016.

First of all -- I haven't made a claim that it wasn't voluntary. But now you've made the claim it is. This is quite possibly the case, but can you cite where she voluntarily gave it to police, and that she was never detained (which per my correspondence with board, merely her being detained at some point would authorize medical professionals to basically do whatever they like).

If it is the way my state's board has told me, I could voluntarily go to the police, voluntarily have the hospital dna test me and then the officer could briefly 'detain' me as a witness and then take the DNA without my consent. From the article here it's not clear to me how this played out.

>"Nobody detained this woman"

The issue based on my correspondence with the board is that they merely could detain her at any arbitrary time in the future and then whatever a medical professional does at that point, including giving up a DNA sample, would be unreproachable. Not legal advice again, just what my board has told me.

That has absolutely nothing in common with this scenario. Nobody detained this woman to collect DNA samples, she volunteered it. And we're talking about HIPAA not the Nurse Practice Act.

Reply to your edit:

I think you are misunderstanding the article. Rape kits are voluntary. When someone volunteers to have a rape kit done, the point is to share that information with the police so that they can catch the rapist. This person voluntarily gave the police that DNA in 2016.

This is in the article.

I complained to the nursing board when police took me to a hospital without a warrant nor being under arrest, chained and cuffed and they lied to the doctor and told them there were drugs up my ass. The doctors and nurses discussed my protected health information with police.

I specifically complained to the board regarding this and was told anytime a nurse/doctor is acting upon request of police they are exonerated from whatever happens afterwords. In fact the board in my state's position is that a medical professional can perform warrantless searches on behalf of police, and they are relieved of any personal liability.

Basically, in theory maybe HIPAA applies. In practice the police and regulatory boards act in lock-step to automatically make any interaction between medical professionals and police beyond reproach.

But they shouldn't have been able to get it.

They didn't just 'get it'. The victim volunteered the data, for the purpose of solving the crime against her. That's what a rape kit is.

The legal question (for courts) is also: is this just a bad idea to set as precedent?

Regardless of whether it was technically medical or evidentiary, it's astoundingly stupid (from both a judicial and ethical standpoint) to provide any disincentive to a woman getting a rape kit ffs.

Note also: HIPAA hardly protects anything. Not clear at all that it would apply in this case no matter what. HIPAA is unfortunately mostly a scary word that people use as a rhetorical device to win arguments.

The article doesn’t say anything about the legal team claiming the DNA is protected by HIPAA. The DNA is evidence. The distinction is that it is evidence for a crime in which the woman is a victim, not evidence fro a crime in which she is the perpetrator. One of the issues at stake is that mixing up the two will disincentivize rape victims from reporting the crime committed against them (because the evidence collected to investigate the rape could later be used against them)

There's also two sets of DNA. I imagine her DNA is not evidence of any crime, only the rapist's. So her DNA is collected coincidentally. Is there any other standard for coincidentally collected evidence?

Say I had a diary and wrote an entry after I was raped, which was then submitted as evidence - could the police look through the rest of my diary and see that I had an entry from 4 years ago about breaking into a house?

> I imagine her DNA is not evidence of any crime, only the rapist's.

The entirety of the forensic process is evidence. It's scary that there are people who might think differently. It's a fundamental cornerstone of our Constitutional process.

> Say I had a diary and wrote an entry after I was raped, which was then submitted as evidence - could the police look through the rest of my diary and see that I had an entry from 4 years ago about breaking into a house?

Yes. A person accusing another person of a crime does not get to pick and choose what evidence to turn over.

If you were accused of raping someone, and there were such a diary, would you not want your defense counsel to be able to review the fifteen diary entries previous to that, planning out how to frame you for such a crime?

Sure, that seems relevant. But can you respond to my direct point - if I turn over my diary where I recount being the victim, can the police look at an entry from 5 years before, and use that to charge me with a completely separate crime of breaking and entering?

Yes, and that's one of the things the fifth can be used for. If you're in this situation, get a good lawyer to negotiate on your behalf.

Weren’t charges in this case dropped in February? Why is this in the news again?

http://www.theguardian.com/us-news/2022/feb/16/chesa-boudin-...

From the very first sentence of TFA:

"A woman whose DNA from a rape kit was used by cops to arrest her for an unrelated burglary filed a federal lawsuit against San Francisco on Monday, alleging that police invaded her privacy."

This is news because she just filed a federal lawsuit.

Because the victim is suing

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