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Comment by samatman | Hacker News Reader

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.

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> 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.

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

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.

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

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.

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

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.

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?

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?

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.

>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.

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.

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

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).

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.

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