On this much Christine and I are in full agreement: The use of DNA in law enforcement has advanced beyond the safeguards currently in place to prevent misuse of the information stored in government databanks. Unlike fingerprints and conventional serology, heretofore the most reliable techniques used in criminal identification, DNA is something of a biological crystal ball into a person's future, offering a reliable forecast of susceptibility to certain diseases, and even, in some cases, of likely behavior. As the science progresses these predictive powers will surely progress accordingly. One need not be a member of the ACLU — or even sympathetic to it — to be concerned that such information is in the hands of the government.

Where Christine and I part company is the degree to which we would entrust the judiciary to resolve the questions that arise from the use of DNA identification. She laments the fact that there is no uniform standard regulating whose DNA is collected for inclusion into CODIS, the federal DNA databank. Some states collect samples from all adult felons, others from only those convicted of certain violent crimes. Some states include juvenile offenders. I infer from her argument that she would look to the courts for guidance in the quest for a national standard, but I would prefer to leave the establishment of such a standard to Congress. The Constitution does not demand uniformity across the states in most criminal-law matters, and the states should be allowed to collect DNA samples from whomever their legislatures choose, provided, of course, constitutional rights are observed. Those samples collected outside the bounds of the national standard should not be included in CODIS, but the states should be free to catalog them in accordance with their laws. The varied results across the country will instruct the states on modifying their policies, including or excluding classes of offenders as experience dictates.

In my criticism of the Ninth Circuit's decision in U.S. v. Kincade, I did not mean to suggest, as Christine claims, that the courts have no role in the resolution of the constitutional questions arising from the use of DNA in law enforcement. I fully expect to see cases similar to Kincade filling the dockets for years to come. But when those cases come before the courts, it is my hope that the judges hearing them adhere more to the line of jurisprudence exemplified by Diarmuid O'Scannlain's Kincade dissent than that of Stephen Reinhardt's majority opinion. Indeed, the Kincade decision vividly illustrates the competing ideologies on the proper role of the judiciary. O'Scannlain distills this clash of ideologies in an article he wrote for Open Spaces Quarterly, "On Judicial Activism," available online here. An excerpt:

Judge O'Scannlain is a shining beacon of reason on an activist court. I'll bet he eats his lunch alone most days.

— Jack Dunphy is an officer in the Los Angeles Police Department. "Jack Dunphy" is the author's nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.

In yesterday's exchange, Jack suggested that my support for the result of the Ninth Circuit's DNA decision — a brake on law enforcement's ability to take DNA samples as a condition of parole or probation — led me to embrace a legal decision that, like Roe v. Wade, is of questionable constitutional reasoning.

In fact, on both of the questions before the Ninth Circuit in this case — whether "suspicionless searches" for general law-enforcement purposes violate the Fourth Amendment and whether convicted criminals have none of the rights of law-abiding citizens — the Kincade decision is a plausible ruling about a still-unsettled area of law. Even though the decision was authored by one of the country's most liberal federal judges, it nevertheless rests well within the framework of existing law on the Fourth Amendment.

As well, Jack's question about the intrusiveness of the search depending on how DNA specimens are collected (blood sample, cheek swabs, or even cross-transfer of skin cells from a handshake) misses the larger point: the intrusiveness of a DNA sample does not depend on how the sample is collected, but on how much more potentially revelatory it is compared to older methods of categorization such as fingerprints. Unlike a fingerprint, DNA does much more than merely identify you — it can, potentially, tell you — and the police, and the government, and your employer, and your insurance company — something about your future.

The U.S. Supreme Court might or might not overturn this decision; but given its prior rulings in this area and the novel issues raised by law enforcement's use of genetic information, it would be foolhardy to make a confident prediction of the outcome of this case.

As for the broader issues at stake, many questions remain. When I asked Dennis Kenney, a former police officer and now a criminal-justice professor at John Jay College in New York, what he thought about DNA databases, he raised two important points. First, he noted, in the vast majority of crime scenes that do not involve violence or sexual assault, criminals don't leave DNA behind for collection. This means that insisting on the collection of DNA from burglars, car thieves, and other nonviolent felons upon probation has little law-enforcement use unless those felons graduate to more violent crimes. For people, like me, who want these new technologies used more responsibly, this suggests that limiting the databases to convicted violent felons might make sense.

Second, as someone who has spent years teaching and training police officers in former Soviet bloc countries — places where "rule of law" effectively meant "bribe the official" — Kenney noted that the difference between them and us, in terms of how law enforcement works, is smaller than we might like to think. "Part of the reason we as a society tend to trust law enforcement," Kenney said, "is that we make their job so difficult in the first place." By insisting that police officers' methods of arrest, investigation, evidence collection, and analysis, pass constitutional muster, we reinforce the notion that the law applies to everyone. Without that sense, it is impossible to maintain order and public trust in state institutions such as law enforcement. Given the revelatory power of genetic information, it is even more important for us to protect these boundaries.

The broader dangers lie ahead. So far it has proven popular to argue for the continued expansion of these DNA databases by claiming greater public-safety benefits. Eventually, of course, that argument could lead to claims that all citizens should submit samples to a universal database. Already, several prominent scientists and legal theorists have suggested just that — a universal genetic database that would protect the innocent and punish the guilty, and other countries such as the U.K. are seriously considering logging the DNA of every citizen at birth. Whether or not the Kincade decision is eventually overturned, one can only hope that it sparks broader public debate about whether or not we want to travel down the path toward a universal database. In my view, we should resist this temptation at all costs.

— 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.