EFF to Supreme Court: The Fourth Amendment Covers DNA Collection
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(1) Although DNA should be protected in the sense the government cannot take it from you, without a warrant (or claims your a terrorist). It's difficult to argue that if some hair falls off my head in public, should it not be considered "fair game"? Picking up papers out of the trash has always been fair game for law enforcement, so why should the hair be different?
(2) Unreasonable search and seizure is relative, it's not reasonable to pluck a hair off someones head. The same way you cannot go through someones office without reason. However, if someone disregards the hair, then it does seem reasonable to take the hair, because it is not invading a persons time/space/property/anything.
(3) It is a powerful tool to fight illegal activity. I have trouble believing a judge doesn't/wont (to some point) empathize with this and have a slight bias.
I find mass DNA collection very scary, but I don't know if this is fully valid or winnable case.
Personally I regard the issue as moot; dna identification is here and not going away.
I don't really like the idea of tricking someone into giving a DNA sample, but I'm pretty sure it's been upheld before (they searched someone's garbage, IIRC) and this wasn't a massive dragnet, it was a trap to get DNA from one person who they must have suspected rather strongly given how they trapped them.
Because it is unreasonable to avoid. A reasonable person who wants to maintain privacy has the ability to avoid throwing things they don't want to be found out. A reasonable person who wants to maintain privacy must be unreasonable in order to prevent his or her DNA from being all over the place.
IANAL, but I feel like the 4th amendment needs to be interpreted in light of the difficulty of obtaining private information on a person at the time, and the ease of obtaining it now. At the time, the 4th amendment pretty much prevented law enforcement from getting any information on you that you didn't broadcast (absent a warrant). I think it is reasonable to use that standard.
> (2) Unreasonable search and seizure is relative...invading a persons time/space/property/anything.
But it is invading a persons privacy. Their DNA contains information that is as private to them as what they do in their home with the blinds drawn.
It seems to me that there is at least an argument that dropping your DNA in a public park is not very different.
The EFF apparently feels that you could do quite a bit of harm with it, if not today, then very soon. To me, it seems just about as bad as stalking someone.
I upvoted you, but I'll say for the record: this is an excellent point.
The reason to defend constitutional rights in this context is about what the government 'could' do, not what they 'should' do. As an example, I think very few people would argue about the plausible deniability of a person found with a dead body in their trunk and yet there are cases arguing about whether or not similar 'evidence' should be considered if it was discovered due to a traffic stop without cause or an improperly served search warrant, etc. The reason is not because constitutional rights advocates want the possibly guilty to go free and not because we don't want law enforcement to be able to do their jobs, but because we don't want abuses to become the norm rather than the exception.
If the courts decide that the DNA of an individual can be tested without a warrant or even probable cause, then they could just begin testing everyone that had even passing contact with a victim, a neighborhood street, a school, an entire city.
At the most extreme, the FBI could then begin to secretly collect our DNA when we go to any federal office and eventually have an entire database they can search for a match to any random DNA found at a crime scene. You might try to compare this to fingerprint databases, but those are databases of people where they was legal cause to require collection of their prints--convicted criminals and law enforcement officials are two examples. And remember that neither fingerprints nor DNA are definitive; labs make mistakes, samples are mishandled, etc.
If there was no fear that evidence could be thrown out because of how it was collected, then law enforcement would just proceed unhindered in any investigation and worry about consequences later when they got their arrest.
Either give them direct permission to take DNA without cause, or make it illegal regardless of what loop whole they can think up.
People have learned to wear gloves in crimes to avoid finger print collections. With DNA, they will need hair nets, exfoliate and more skin coverage to avoid detection.
(I think 'Almost Human' had something like this in one of the episodes)
Your fingerprints don't tell me anything about your mother, your medical history or future, or hers.
Unlike fingerprints, when someone takes your DNA, they search your entire family.
Just that it is very unlikely that you could infer the clinical manifestation of a heart condition just from DNA alone...
If they're just comparing the DNA that was left behind at the police station to DNA they found at a crime scene, I don't see any issue.
IMHO the EFF have chosen the wrong case to fight here.
Therefore, if we made a rule that evidence that ties you to a crime scene (such as fingerprints) can be collected without a warrant, but evidence that identifies you as the perpetrator needs a warrant, couldn't the police simply collect the DNA from the chair without a warrant, and only use the DNA from that sample to tie him the crime scene?
Then, once he's tied to the crime scene, that could be used to justify a warrant to collect a direct DNA sample directly from him, and then they could use that second sample to identify him as the perpetrator?
And if the rapist in this case was questioned as a subject, the police could have gotten a warrant for the DNA anyway.
This typically happens with civil rights cases, and it's worth noting that there are certain legal groups that are better at it than others -- the Second Amendment Foundation is exceptional, and it's a large part of why their win record is so good.
A fingerprint however, if found in public and considered fair game tells you one thing - that you were there, or someone reasonably competent in lifting and transferring fingerprints has a copy of your fingerprint and is attempting to put you in the spotlight. It doesn't tell the discoverer of your print anything further about you.
Your fingerprints don't tell me anything about your mother, you medical history or future, or hers.
When someone takes your DNA, they search your entire family.
If I accidentally left my credit card on the ground, you would not be legally allowed to use it. I would have to have left it there on purpose.
The 'reasonable' is not about acquisition of information, but about the knowledge of the source. For instance, it is unreasonable for me to expect privacy in the trash bin, but not unreasonable for me to expect privacy in the bed of my truck.
I'm not even sure what the downside is in a policy sense. The only way this has any effect on anyone's lives is if it is used to catch you for a crime you committed.
For example consider the case where a couple with fertility problems used a sperm donor. The child is never told that this happened. Then police identify that the crime was likely committed by someone who shares 1/4 of their DNA with the child. In other words that child's grandchild, grandparent, half-sibling, aunt or uncle. You can imagine the sudden disruption when the police show up?
It gets even worse if the child was the result of an affair. Or if the person who committed the crime was. Or if the child was in some other way the result of a family secret.
Oh right, and it gets more problematic. The traced DNA is not necessarily the criminal's. You find hair at the crime scene, but maybe it was present before the crime. The hair is a lead, it is not proof.
These cases are common enough that schools long ago learned not to use people's families for demonstration of how genes work in biology classes. Heck, they are common enough that I personally know people that I know are in these kinds of situations. And you have to get to know someone pretty well before you find out about stuff like this.
And now we're going to have law enforcement randomly exposing private situations like this. Maybe we as a society consider this worthwhile. But there is no question that privacy will be invaded here.
If the police see a red BMW leave a scene, it might accidentally cause a person with a red BMW to be falsely investigated.
Human eyewitness evidence is even worse.
So yea, while there is some effect, it is no more than what we already accept.
Additionally, your hypothetical also assumes that the person(s) related to the supposed subject have their DNA on file or are somehow compelled to provide it as evidence - precluding some kind of existing database, or a kind of chicken|egg situation. That is out of scope of this argument.
That is actually a very safe assumption.
As articles like http://www.pbs.org/wgbh/nova/next/body/dna-databases/ make clear, police already ARE creating DNA databases. And since there is little regulation around this right now, they are free to be creative in assembling them. For example you can get a good DNA sample from the straw used to blow into a breathalyzer. So get stopped at a routine traffic stop, your name, license plate, and DNA can go into a database. And voila, police can now match you and your relatives against crime scenes!
Think this is crazy? This has already been happening. See https://www.prisonlegalnews.org/news/2013/aug/15/maryland-co... for breathalyzer DNA being used to convict of a crime, http://edition.cnn.com/2013/02/26/justice/supreme-court-dna/ for the Supreme Court OKing DNA tests for arrests without a conviction, and http://www.nbcdfw.com/news/local/North-Texas-Drivers-Stopped... for a random example where this was done to random people at a traffic stop. Yes, there is outrage at present. But over time this could become the new normal.
As technology improves and costs come down, incentives to match everyone to DNA tests will go up, not down. Heck, I remember as a child in Canada over 30 years ago having police come to my elementary school and taking everyone's fingerprints. I believe that the cause was so that if anyone went missing, they could identify us. But once that data is collected and goes into databases, it doesn't come out.
Heck, how many parents would give consent today for their 2nd graders to get a DNA test for that purpose?
Won't let me reply next-in-thread. I never said that what you describe wasn't possible, and I'm indeed aware of those instances you bring up. What I'm saying is that that is out of scope of this argument. EFF is talking about collection capabilities. Immediately jumping to the 1984 senarios hurt the overall grounding of the argument.
Therefore if there is a demonstrable privacy issue to DNA collection and analysis, then requiring warrants is the accepted way in our legal system to balance the needs of law enforcement against people's right to privacy.
Or your child. I guess you don't care if you send your kid to the chair though.
AFAIK LE still needs a warrant of some kind in order to go through your trash. At least that's what I remember from watching The Star Chamber.
If copyright works through "authorization", I don't see why we should accept it as natural and normal for authorities to use our fingerprints, hair, or even sperm without our permission. Speaking of the last one, I don't think it's legal for a woman to impregnate herself with a man's sperm by taking it from a used condom and without his knowledge?
I'm having trouble reconciling those two views and developing intuitions around how we should handle it.
So far, I don't see how we can avoid ending up with a "surveilled world", though it scares me to death (we don't have the benevolent AI overseer to watch it). With the progress of technology coupled with ubiquity of networks, it is going to be hard to avoid.
https://github.com/MrChrisJ/World-Citizenship/issues/22#issu...
Disclaimer: I stand neutral in this issue; however, DNA/law is what I currently do for a living.
While it is true on the most basic level that law enforcement do 'collect' and 'store' information about 'who we are,' 'where we come from,' and 'who we will be.' It is only true because crime labs are typically required to store samples long term (mostly because of an idea that in the future, technology in the future will provide better discriminatory power, and for quality control testing/confirmations).
Law enforcement does not process DNA samples in the way that the article suggests, in fact, the vast majority of the time (and legally, this varies state by state), crime labs only use DNA typing technologies that produce information that is limited to "identifying an individual." What this means is in the most elementary way, is that the data generated from DNA samples used in law enforcement today, only contains information equivalent to a fingerprint. DNA samples processed in crime labs (the vast majority of the time) is based on STR technologies and (again, most of the time) it is unlawful for crime labs or law enforcement agencies to use this identifying information any further than the capacity to identify the "who" which is most of the time only searched in a database of convicted offenders, detainees, sex offenders, and/or arrestees.
So no, law enforcement agencies aren't generating/processing information different in capacity to that of a fingerprint.
Is it lawful to collect a fingerprint (or in this case a STR DNA profile) without a warrant or probable cause? I think so, but in their minds searching "forensic unknowns" to a database such as CODIS (you'll have to google this) to generate investigative leads is paramount to finding unconvinced offenders.
Example: Bob is arrested in 2015 for burglary and has a history of misdemeanors the past 10 years. DNA is collected for forensic evidence of this burglary to build a case to convict him of this crime. His DNA profile is searched in CODIS and happens to hit to an unsolved rape case in 1998. His DNA profile matches that found on a vaginal swab of the rape victim. Bob will now be charged with rape in 1998, but who would have otherwise gotten off scott free for the rape if it weren't for CODIS.
There has been pretty much no change in the state of affairs with regard to NSA mass surveillance, and the same can be said for RIAA DRM technologies continually pushed forth in the mass market. Everytime I see an EFF related article here or on reddit, I just get the sense that it accomplishes nothing real. Maybe things would be different if the big tech giants started suing the agencies and the US federal government for various abuses, but even then, it wouldn't make sense for them to attempt this because of legal backlash from the US (or other more insidious forms of backlash...) All in all, it feels like quite an unwinnable struggle.
The government system of the US is now the size of Japan's entire economy fiscally. I don't see how that is ever going to be contained. There's no way to pass enough controls or restrictions to hold something that massive in place, and there's no way to afford to monitor all the restrictions even if you got them into place.
The other problem I rarely see addressed is culture. No two governments are the same. The US is an aggressive government, that is its culture (at least since WW2 or so), and that will be very, very difficult to change. Some people naively think you can trust a large government like the US Govt., as you might Sweden's government - but that ignores the fact that their cultures are drastically different.
Orgs like the ACLU and the EFF are very valuable institutions, and they're trying to do what few others are. The odds are severely stacked against them, but given the context is so extraordinarily important, it remains worth fighting for. Maybe all they can accomplish is to slow the process of rights erosion down, that too is valuable (some of course argue it'd be better to accelerate the implosion instead, rather than have a long slow erosion).
Currently, DNA does not contain "vast amounts of private information", and even the little amount we can get from it requires serious science and hundreds if not thousands of Dollars per sample to retrieve it. Currently it is more effective to prohibit specific abuses, like insurance tests.
In the future, DNA data will be as cheap and obvious as fingerprints, gender or body height. DNA sequencers will pick up human DNA all the time even by accident. Therefore, DNA and its information will be in plain sight, if we like it or not.
Fighting DNA collection will be a lot like fighting copyright piracy. The information is copied and distributed so easily, no way we can keep our DNA private.
Now that technology has given us multiple end-runs around the fourth amendment, it would be to our benefit to look how to preserve that original intent.
Usually this happens by way of other non-DNA evidence. Imagine: you pick up a hair (or swab a coffee cup, whatever) in public that you believe (but, to your point, do not know) to be from your suspect. You take it back to the lab and, sure enough, it matches your sample from the crime scene.
Now, if you know nothing about the people in the vicinity of there you picked up your test hair, and were just randomly canvassing for DNA, this might not prove much. But presumably you were following a particular person, whose hair you tried to collect because you also have other evidence against him (though probably none so strong as DNA identification). This puts you in a very different epistemic situation with respect to that hair. Now you know that you picked up a hair in an environment full of people, only one of whom was a suspect in your investigation. It so happens that this hair matches a hair from the crime scene. It is, of course, possible that you picked up an unknown person's hair, and that person just happened to be your culprit -- but it is far far more likely that the hair you got is from your suspect, since he's the only one in the area believed to have any relationship at all to the crime.
(Of course, there could be situations that confound this analysis, for example if you collect hair at the end of the day from an interview room that's been used to question a bunch of suspects in the same crime. But law enforcement will not usually be this sloppy. They are well aware of the need to positively associate a hair with a particular person.)