Friday, June 7, 2013

Supreme Court allows warrantless collection of DNA

Gattaca: A soon-to-be True Story

Harvard Law professor Noah Feldman, writing on

The day that DNA cheek swabs officially became the new fingerprints deserves to be marked and remembered -- and not just because of the inevitable march of technology.
No, the Supreme Court’s 5-4 holding today in Maryland v. King, that anyone arrested for a “serious crime” can have his or her DNA taken without any suspicion, is a landmark because it represents a major step toward a “Gattaca” world. This means that evidence of a crime can be collected without any particular suspicion, avoiding the pesky requirement of a warrant that the Founding Fathers thought would give us liberty and privacy.
Justice Anthony Kennedy’s majority opinion treats the standard collection of DNA samples from arrestees in Maryland as the logical outgrowth of the state’s interest in identifying the people it has arrested. This is a bit of a surprise from Kennedy, who can generally be counted on to embrace liberty. Yet in this case, he wrote, the state’s interest in keeping track of everyone it has arrested can be satisfied more accurately by DNA than by fingerprinting. And the swab of the cheek is, he said, little more invasive than a fingerprint.
If DNA sampling was actually like fingerprinting, this argument might be convincing. But of course it isn’t. Fingerprints are a phenotype that reveals nothing except a random pattern that no two individuals share. DNA, however, is your genotype: the blueprint for your entire physical person. If the government has my fingerprints, it’s like they have my randomly assigned Social Security number. If it has my DNA, it’s like they have the entire operating system.
 I had no memory of Gore Vidal being in this movie.
Full Blueprint
That DNA is a full blueprint matters in two major ways: The first and most basic is that when the state possesses genetic information, it can -- and in the future, almost certainly will-- know vast amounts about the person whose genes are typed. The court said this wasn’t a worry because Maryland law prohibits the use of DNA information beyond identification. But in a world where every arrestee is sampled, how long will that legal principle last?
Yet it was the second concern that exercised Justice Antonin Scalia in his pungent dissent. Ordinarily, Scalia explained, a search can be performed only on probable cause and with a warrant. Fingerprints are not a search. But DNA is a search, and for a very important reason: The DNA of the petitioner, Alonzo Jay King Jr., was used to link him to the rape he was accused of committing. In other words, said Scalia, the purpose of the search and the swab wasn’t to identify the accused with a unique marker. It was to solve a crime in question.
If Scalia’s distinction seems subtle, it shouldn’t. Fingerprints are generally used for bureaucratic identification and only occasionally to solve a crime -- when the criminal has been careless enough to leave them behind. DNA, by contrast, hasn’t, thus far, been used for bureaucratic identification. It is useful primarily for solving crimes, since it is almost impossible not to leave some DNA behind wherever we may go and whatever we may do. To prove the point, Scalia demonstrated that King’s DNA sat around for weeks before being analyzed -- and was eventually analyzed to solve a crime, not to keep track of the criminal.
What is remarkable, then, is that even Justice Scalia --joined by the liberals Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor -- thinks there would be nothing wrong with sampling every arrestee’s DNA if the purpose really were just to keep tabs on them. The constitutional objection focuses on what the DNA is actually used for. However, these two functions --bureaucratic identification and crime solving -- can probably never be fully separated in the real world. As technology improves, the DNA database could be employed to solve crimes even if its primary purpose were just to be for bureaucratic classification. The reason, again, is the nature of DNA itself, which is not only unique but also oozes from our every pore.

The Supreme Court opinions (both majority and dissent) can be found right here. If you have never read a Supreme Court decision, give it a try; they are usually remarkably clear and even entertaining. Antonin Scalia is a fantastic writer. Here's another commentator, from the Cato Institute blog:

If there’s ever a time when Antonin Scalia really rises to the occasion, it’s when he serves as the Supreme Court’s liberal conscience….
[A]long with the good [from DNA testing] comes a new potential, warned against by civil libertarians, for the authorities to use DNA access to track citizens through life. Who was at the closed-door meeting of political dissidents? Swab the discarded drinking cups for traces of saliva, match it to a universal database, and there you’ve got your list of attendees. Want to escape a bad start and begin life over in a different community? Good luck with that once your origins are an open book to officialdom.
In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”) Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?
With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:
Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

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