US Supreme Court: Cops can take a routine DNA swab at time of arrest
arstechnica.com
arstechnica.com
Even in Lawrence v. Texas, when he was wrong (in the macro sense), he was right in pointing out that, despite the Court's maneuvering, its opinion left no room in the future to find gay marriage bans anything other than unconstitutional.
That being said, I'll go ahead and be a little contrarian. Kennedy isn't really wrong: if you accept that routine fingerprinting is okay, there is precious little you can invoke to say that routine DNA swabbing is not okay, other than the fact that DNA swabbing is far more effective.
The precision and effectiveness of DNA makes it scary to people, but look at the flip side. We might actually want a world where DNA is the go-to tool for convictions, because everything else is so much worse: http://lst.law.asu.edu/FS09/pdfs/Koehler4_3.pdf. If routine DNA swabs lead to the use of DNA evidence being routine, then juries might come to demand DNA evidence to deliver guilty verdicts, which would marginalize the other, highly unreliable, forensics techniques.
There is also an important fairness aspect: unlike eyewitnesses, DNA evidence is not subject to cross-race identification bias: https://en.wikipedia.org/wiki/Cross-race_identification_bias....
[1] As long as the topic isn't drugs or homosexuals.
[1] Generally, juries are instructed about random-match probabilities, but aren't usually allowed to be told about lab error rates, which totally dominate the random-match error rates (1-2% error in typical scenarios).
Of course if the witness is a cop (community hero!) or god forbid a girl scout delivering cookies, then legitimately attacking the credibility of eye-witness accounts can put you in a very unsympathetic light before the jury. An attack on the poor recall abilities of homo-sapiens becomes warped into an attack on the character of a plainly honorable witness.
Public understanding of even the basics of Bayesian thinking is abysmal.
It's an admirable expression of judicial restraint, although I disagree with his interpretation of the right to privacy - I would have rather the texas legislature repealed the law on its own than have to take it to the supreme court.
A much more balanced (and fair) system will be they arrest you for some reason. Get your DNA and fingerprints and check for open crimes. If no charges are pressed or you are acquitted etc the data that they got for you is purged by law from their databanks.
This way the government will have easy time by catching you once to check what other stuff you have been involved in but if in the future you get involved in a crime scene they won't have an arrow pointed straight at you.
Conversely, will knowing that "the government have my DNA" make people less likely to commit that future serious crime? It's all a balancing act...
So, you are arguing for giving up your DNA at birth to make people less likely to commit future crimes? Because you are arguing that the means justify the end here.
An engineer would couch this as designing a system to achieve the desired results.
The idea that a government will have much harder time catching someone with clean record than someone that 15 years ago was caught with marijuana in college is unsettling.
The sticky thing for me though is that DNA not only identifies an individual, it also identifies their parents and possibly their siblings. So now we've got more than just our poor arrestee's id we've got some 'known acquaintences' and it gets worse if people start getting arrested for misdemeanors just so that the cops can take a swab to check.
No doubt there will be more to this debate before the dust settles.
Also children.
> No doubt there will be more to this debate before the dust settles.
Absolutely. The fact that the court didn't split along political lines tells you that this issue hasn't been through the political process yet. There will be quite a bit more to this story down the road.
(I imagine the collected DNA is currently not digitized, but in the future I would not expect that to remain true.)
My favorite is being arrested for resisting arrest...for that arrest.
Imagine someone is suspected of murder. There is probable cause that this person has committed a crime so a judge issues an arrest warrant. A police officer finds this murder suspect and arrests him. The suspect resists but is ultimately taken into custody. Under interrogation, the suspect gives an alibi that ultimately checks out. This person isn't charged with murder because it's apparent he didn't commit the murder. However, the arrest was legal and resisting it was a crime. So the suspect is charged with resisting arrest with no other charges.
The constitution and the laws of your state outline your rights (if you live in the US). Part of the deal is that sometimes you can be arrested for crimes you didn't commit. But that's why we make sure that people who are arrested are guaranteed a speedy trial from a jury of their peers, etc.
It seems fairly uncontroversial that the constitution and laws are merely imperfect encodings of your rights. The encoding is necessary, since our legal system runs on it, but due to its imperfect nature it cannot be considered the master copy. Pre-1960s, many of our laws did not reflect what we expect of them and as a consequence of this the rights of countless were 'legally' trampled.
Lectures about the law are rarely of comfort to those that are a victim of it.
But there is more than one definition of "the law".
The constitution and the laws of your state outline your rights
Not really. The constitution is more properly thought of as a list of the restrictions on what the government can and can't do. My rights exist quite outside of that framework. Whether I can defend them or not is a separate issue, of course.
Part of the deal is that sometimes you can be arrested for crimes you didn't commit. But that's why we make sure that people who are arrested are guaranteed a speedy trial from a jury of their peers, etc.
Sounds good on paper. Probably works as intended most of the time. May be about as good a compromise as we can come up with. But by no means is this system totally just, especially if you're someone who is convicted of a crime you didn't commit, or a "crime" that is nothing of the sort (smoking marijuana, homosexual sex, etc.)
How does that work? The police can only arrest people after they are convicted? They have to arrest them first and then charge them.
Yeah, that's the rub, innit? I don't see any way to avoid a certain measure of injustice in this system. But it does argue that if the police arrest somebody, they better be pretty damn sure they are actually guilty of a crime. IOW, if we're going to accept this system of police, laws, arrests, courts, juries, etc., I think the bar for arresting someone needs to be pretty high.
But, I adhere to the basic premise that it's better for a guilty man to go free, than for an innocent man to be imprisoned.
None of which will get me my time back.
It's an unpleasant irony, but resisting an unlawful arrest is, itself, not lawful.
Speaking only within the context of what passes for "the law" today (that is, the byzantine maze of statutes, regulations, codes, etc. pushed out by the US federal government, states, counties, cities, etc)... it may actually be, at least in some very specific cases. See: http://www.apbweb.com/cops-speak-out/1405-resisting-arrest-n... for example. Or: http://www.legalmatch.com/law-library/article/resisting-an-u...
And that is all, of course, totally side-stepping the bigger issues of whether or not our entire system of "law" as we know it today is really valid.
That won't make you any less dead should they respond in kind.
There have been plenty of examples cropping up on YouTube recently showing videos of people being arrested for resisting arrest for their arrest and nothing more.
Of course, they don't get charged. But they do get arrested.
In my mind this falls into the same category as "searching" someone's smartphone if you arrest them. There's no analog for that. It's so fundamentally different, that you have to treat it differently than just looking through a backpack or something.
Strangely, this is a case where "cloud" stuff could actually help. You can't search somebodies rented apartment just because you found his access device for said apartment in his pockets when you arrested him. Similarly, why should you be permitted to search his rented "cloud" just because you found his access device?
This is imperfect since clearly local data should be protected from such searches as well, but it is fairly accessible.
For this matter, I'd love to see someone push for an equivalent of renters rights in all things digital...
After we have that we can work on getting the rest done properly.
I find that argument entirely disingenuous. The only way they are equivalent is if the DNA information is stored in their DB as a cryptographic one-way hash. This would remove all additional information from the DNA and only use it for unique identification.
Let alone the fact that swabbing your mouth should be a violation of your privacy (and blood tests).
Historically the court has held that your right to privacy diminishes as you get closer to being convicted of a crime. And that the state may set aside that right, using a warrant, when they have reason to believe a crime was committed.
There has been little debate about putting the DNA of convicted sex offenders into a national database for example.
If they really thought that fingerprinting was the same, they'd be championing having their own children DNA swabbed, just like they get their children fingerprinted in case they need to be IDed. The fact that none of these same people have tried to "save the children" tells me they don't really believe that argument.
> And that the state may set aside that right, using a warrant, when they have reason to believe a crime was committed.
That makes sense though. Having judicial oversight of law enforcement is a compromise that protects people from the police (at least in theory), while granting LE the ability to do their job. DNA swabs used to have the same judicial oversight -- i'm not sure what is wrong with having to get a warrant to swab someone.
> There has been little debate about putting the DNA of convicted sex offenders into a national database for example.
I have no problem taking away some rights of convicted felons, since we already take away their liberty by locking them up.
your DNA is more private than your medical records, because much of the latter and a whole lot more can be decoded from your DNA, maybe not now, but it will most certainly be done in the future.
"just give us the keys to your house, we'll only use them when we (or our associates) deem necessary"
People get all worked up over automated license plate readers but the thought of the above happening makes GATTACA (http://www.imdb.com/title/tt0119177/?ref_=fn_al_tt_1) look like Disneyland.
What, in itself, would be wrong with that, as long as the police were catching people who were actually guilty?
This is kind of the same thing as the fear of self-driving cars. Why would it be better to depend on things like eyewitness testimony (which is hugely unreliable, especially for cross-race identifications), when we have much less fallible DNA evidence?
Appeals to natural justice are correct, but won't persuade those people.
We need to work out the problems with false negatives and false positives and tying an ID to a DNA string because that might persuade a few people about how bad the idea is.
As it becomes more routine, we will discover - as we have with other lab results - that DNA tests have often been falsified, by lazy or incompetent or corrupt lab workers, and that those test results have sent thousands of people to prison - as is true with other sorts of lab tests, often drug tests, as Googling will plainly show you.
One chemist. one lab. 34,000 cases of falsified evidence. What would you bet on: One bad apple? Or are there more of these throughout the country?
You do know that argument could be used for giving lie detector tests on every citizen every day, right? Other than tracking the movements and associations of every citizen, there isn't much more wrong with it.
I find check swabs invasive as well. If they can get the DNA in other ways that aren't invasive, I'm not sure why they have to be cleared to do it in this manner.
And what do you mean unreliable? Maury Povich uses them all the time on his show! ;)
Lie detectors don't actually work, and take up people's time. Following people around reveals anything a person is embarassed to reveal publically.
DNA analysis doesn't take up the target's time, works better than lie detectors, and reveals much less embarassing facts about the target.
We are talking about a DNA "vacuum cleaner" that hasn't been invented yet and you have a problem with the accuracy of lie detector tests?
| catching people who were actually guilty
More to the point: how would this generation feel about the police coming to school and taking DNA samples?
Boyscout "fingerprinting merit badge". Interestingly they had us do none of the actual requirements (well, at least from the 2003 requirements, I don't know what they were at the time); the only thing we did was get fingerprinted by the police.
Were it not for that, I would remain un-fingerprinted to this day. I am somewhat upset about that.
Source: http://www.ornl.gov/sci/techresources/Human_Genome/elsi/fore...