The U.S. Court of Appeals for the Ninth Circuit has
ruled that Thomas Kincade's constitutional right
to protection from unreasonable searches and seizure
was violated by having to submit a sample of his DNA
to a federal database. Kincade, recently paroled after
a stint in prison for armed robbery, refused to submit
a DNA sample.
It would be easy to assume that the ruling was another
example of Ninth Circuit judicial activism, but that
would be a mistake. On the point in question — whether
people on parole should be required to submit DNA
samples to the federal Combined DNA Index System (the
DNA database called CODIS) — the decision does not
dramatically overreach, although it does, like other
cases of this kind, avoid the thornier issues related
to DNA databases.
Kincade's protest should serve more broadly as a
warning about a technology that is popular, has expanded
rapidly and, at times, irresponsibly, and whose most
avid supporters have still not crafted adequate privacy
protections or uniform standards for its use. On the
issue of DNA databases, there are many unanswered
questions and potential dangers.
As for the question before the Ninth Circuit, the
law is clear that you can't conduct "suspicionless"
searches for general law-enforcement purposes. Of
course, the courts have determined that prisoners
and even people on parole and probation have diminished
rights, but as the Ninth Circuit notes in its decision,
that doesn't mean they have no
rights.
The status of DNA is far from a settled legal question.
The courts haven't determined whether DNA is fundamentally
different than a fingerprint or a blood sample. The
invasiveness or harm of a DNA search, after all, doesn't
occur only at the moment when blood is drawn or a
cheek is swabbed; it can happen years later, when
a DNA sample is analyzed to find evidence of a particular
genetic condition such as Alzheimer's disease or (to
gaze further into the future) perhaps a genetic marker
for aggressiveness or violence to use as a more scientifically
savvy version of the "twinkie defense."
Most Americans believe that the DNA at issue in these
cases is just like a fingerprint — a harmless source
of identification. But DNA is fundamentally different
from a fingerprint — it is much more revelatory. This
has led to misunderstanding about the benefits and
dangers of DNA and DNA databases. The DNA stored in
these databases is called, incorrectly, "junk"
DNA, because it is supposed to reveal only your unique
genetic identity, not the details of your entire genome.
But junk DNA does not merely serve as a unique identifier;
it can also reveal genetic predispositions for conditions
such as Type I diabetes.
As well, these databases are not institutions tested — and
tempered — by the passage of time. The first conviction
using DNA evidence came in 1987. Within a decade,
every state had established a DNA database — all with
their own rules. But although the analysis of DNA
evidence has proven to be an extraordinarily
useful addition to traditional police work, the verdict
is still out on the effectiveness of DNA databases.
Some legislators are beginning to consider these
problems. The same week the Ninth Circuit's decision
came down, the Massachusetts legislature postponed
a vote that would have expanded its DNA database to
include every convicted felon in the state.
A go-slow approach is the right idea. In our haste
to make our streets safer, we have not taken appropriate
care to craft an effective but limited tool for law
enforcement. We risk creating a genuine threat to
liberty.
— Christine Rosen is a fellow at the Ethics &
Public Policy Center. She wrote about DNA databases
in the Spring 2003 issue of The New Atlantis: A Journal
of Technology & Society.
