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Editorial: Chief Justices Should Not Allow DNA Collection During an Arrest Booking

The views expressed are those of the author and are not necessarily those of Scientific American.


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The Supreme Court is scheduled to hear arguments this week about whether law enforcement officials have a constitutional right to collect DNA after an arrest and before a person has been convicted of a crime. The argument in favor of this practice holds that it is no different than fingerprinting during a booking procedure. But DNA furnishes much more information than the fingerprint’s simple ID and thus raises a range of issues about whether gathering a sample upon arrest would violate the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” Scientific American urged that fingerprinting-upon-arrest not be allowed in an Agenda editorial that appeared in the December 2011 issue (reproduced, in part, below). More on the issues surrounding DNA databases maintained by law enforcement can be found in “The U.S. Is Building Massive DNA Databases [Preview] by Erin Murphy in the March 2013 issue.

From Stop the Genetic Dragnet, from the December 2011 Scientifc American

In 2009 the San Francisco police arrested Lily Haskell when she allegedly attempted to come to the aid of a companion who had already been taken into custody during a peace demonstration. The authorities released her quickly, without pressing charges. But a little piece of Haskell remained behind in their database.

Haskell is one of hundreds of thousands who have had their DNA extracted as part of an enormous expansion of what were once categorized as criminal data banks. Police in about 25 states and federal agents are now empowered to take a DNA sample after arresting, and before charging, someone. This practice occurs even though many of those in custody are never found guilty. If they are cleared, their DNA stays downtown, and they must undergo a cumbersome procedure to clear their genetic records.

Courts nationwide are now wrestling with the civil-liberties implications. Some have held that the practice violates the Fourth Amendment protection against “unreasonable searches and seizures.” Other courts, including one that heard a legal challenge brought by Haskell, have agreed with law-enforcement officials that lifting DNA is no different from taking a fingerprint, an established routine even for those not convicted. Ultimately the U.S. Supreme Court will probably decide this matter.

The ability of DNA technologies to match a tiny sliver of tissue left at a crime scene to a suspect gives them an undeniable allure to law enforcement. For critics, the unreasonableness of this “search” relates to the information-rich nature of DNA. It does more than just ID people. It also has the potential to furnish details about appearance, disease risk and behavioral traits. The laws establishing DNA databases attempt to guard privacy by limiting inspection to only 13 relatively short stretches of DNA among the billions of “letters” of code that make up the genome. Yet that protection may not be enough. Once those 13 markers are extracted, law-enforcement agencies continue to store the larger biological sample. Civil-liberties organizations worry that officials may eventually mine these samples for personal details or make them available for medical research without consent.

>> Click here to read the full editorial

 

About the Author: Gary Stix, a senior editor, commissions, writes, and edits features, news articles and Web blogs for SCIENTIFIC AMERICAN. His area of coverage is neuroscience. He also has frequently been the issue or section editor for special issues or reports on topics ranging from nanotechnology to obesity. He has worked for more than 20 years at SCIENTIFIC AMERICAN, following three years as a science journalist at IEEE Spectrum, the flagship publication for the Institute of Electrical and Electronics Engineers. He has an undergraduate degree in journalism from New York University. With his wife, Miriam Lacob, he wrote a general primer on technology called Who Gives a Gigabyte? Follow on Twitter @@gstix1.

The views expressed are those of the author and are not necessarily those of Scientific American.





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  1. 1. xbig_bangx@yahoo.com 9:21 pm 02/25/2013

    A minor point: The title should have been “Justices Should Not Allow DNA Collection During an Arrest Booking,” since it is the majority of the nine justices, not solely the chief justice himself, who will decide the matter.

    Link to this
  2. 2. The Ethical Skeptic 10:44 pm 02/25/2013

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” The issue I think, will come down to this; something with which every nation grapples upon formulation of judicial span of power (usually the last and most corrupt facet). An arrest is a Warrantable action of office, based upon probable cause. Just as a police officer cannot take your new 1080P Flat Screen and DVR system while searching your home for illegal possession of pot, just because he would like to have the system, AND it contains a cool helpful listing of all the programs you watch, even so – the prima facia argument that we obtain ‘identification benefits’ is not sufficient Warrant to justify the seizure of Intellectual Property.

    Your DNA is your intellectual property, your ‘person.’ The only time it can be taken is when your identity will be material to the corpus under which the probable cause Warrantable action was taken. If a murder was committed, and DNA is left at the scene, then the Warrantable probable cause involves essential adjudication by identity. Property can be taken in that instance as it relates to the crime, even if you are not eventually charged. But if you simply were at the student union attending a sit-in to defend the rights of gay citizens, then the taking of your DNA is the unlawful seizure of intellectual property.

    Oh yes, and we should start taxing all intellectual property…. forgot about that. That will get these dormant patents off the corporate books, or get them making some revenue for the holders. No more dormant technologies held in GE’s Cincinnati Research Center! hehe….

    – TES

    Link to this
  3. 3. BruceGrande 10:56 pm 02/25/2013

    until I looked at the draft for $5548, I did not believe that my father in law could actualey taking home money in there spare time at there computar.. there friend brother has been doing this 4 only about seven months and as of now repayed the loans on their appartment and bought a great Honda. this is where I went….. http://qr.net/j986

    Link to this
  4. 4. kienhua68 12:44 am 02/26/2013

    If the authorities want dna they could acquire it indirectly. We leave it virtually everywhere we go.
    So even with laws eventually everyone’s dna will be
    on record.
    The benefits will outweigh the risks.

    Link to this
  5. 5. Owl905 1:31 am 02/26/2013

    The ‘fear itself’ is rampant in the camp that wants DNA banking suppressed and thereby rendered useless. The banks should be as robust as possible – blood type, fingerprints, photos, signatures, licences, service records … and DNA. There’s far more benefits than risks – innocent suspects are incarcerated less frequently and for less duration; it is easier to match victims to treatments and/or cures – and offers better warnings for side-effects. Wallowing in suspicion, of the uses the usual “them” will make of it, is a sad distraction away from the general public’s ‘healthy, wealthy, and wise’ advantages.

    Link to this
  6. 6. AllanRBrewer 6:07 am 02/26/2013

    I would favour taking a DNA fingerprint from everyone at birth – that would remove the issues around criminals only and/or suspects, and would act as a crime-deterrent as well as facilitating criminal detection.

    “Your DNA is your intellectual property” – no it isn’t – you didn’t invent it.

    ” Just as a police officer cannot take your new 1080P Flat Screen and DVR system while searching your home..” – not the same at all – DNA is not taken, its just copied and recorded.

    There is no civil liberty issue unless you are proposing to commit a crime.

    Link to this
  7. 7. dbtinc 8:18 am 02/26/2013

    they can take your fingerprints so why can’t they take your DNA?

    Link to this
  8. 8. drafter 11:26 am 02/26/2013

    Sorry Ethical Skeptic
    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”
    Has already been violated in the U.S. thanks to DUI traffic stops and in New York City the police can now frisk anybody that they feel might be a criminal and lets not forget the Patriot act and few others. This country has already abandoned and/or ignored most of the constitution for some time now.

    Link to this
  9. 9. silvrhairdevil 11:48 am 02/26/2013

    Where did the Report Abuse button go?

    BruceGrande’s post needs it.

    Link to this
  10. 10. desidesi 2:05 pm 02/26/2013

    my co-worker’s step-mother makes $68 every hour on the computer. She has been laid off for nine months but last month her check was $19197 just working on the computer for a few hours. Read more here
    WOW92 ℂOM

    Link to this
  11. 11. 13inches 2:41 pm 02/26/2013

    I am as ‘anti-Big Brother’ as anyone, but I just don’t see ANY downside of Police collecting DNA from arrestees. Many 25 year old unsolved murders and rapes have been solved through DNA collection and analysis. Many innocent prisoners have also been freed by the powers of DNA analysis. A massive national DNA database could also be very useful in macro-health studies and containment of epidemics. How is providing a ‘cheek swab’ at the Police Station ‘unreasonable search and seizure ?’ If an anal strip search at the Police Station is constitutional, then certainly a cheek swab should also be deemed constitutional.

    Link to this
  12. 12. plswinford 3:05 pm 02/26/2013

    I don’t see the down side to the police having my DNA, even if the people at the server farm sell an untraceable copy of that information to big pharma. But I do want copies of all politician’s DNA in that database. No more “rules for the peasants, but not for the rulers”.

    Link to this
  13. 13. gmperkins 3:24 pm 02/26/2013

    Either they say ‘no’ or they have to enact laws that collect everyone’s. Identity is a very important concern in the modern era and this needs to be well thought out. Obviously, collecting everyone’s would be great if we could trust secure storage and proper use. Of course, can we really trust in its secure storage and proper use? And other questions of accountability and what not, it is a tough problem that I am sure the USA congress can sort out no problem ;) .

    Link to this
  14. 14. dieselpop1 3:36 pm 02/26/2013

    Interesting. Fingerprinting should not be allowed even though it would clear some accused quickly. And would someone from the left explain why you want to register guns but not potential criminals?

    Link to this
  15. 15. MostlyRight 8:01 pm 02/26/2013

    Everyone should be required to provide DNA at birth. Non criminals DNA would then be placed in a data base that is only used for cold call hits.

    Link to this
  16. 16. jaydoc 8:31 pm 02/27/2013

    If checking DNA samples identifies a rapist from 20 years ago, is that violating someone’s civil rights? Why is this different than taking a fingerprint? I think Scientific American should be about science and not about the editor’s political beliefs. Really, who does this DNA collection hurt besides a criminal?

    Link to this
  17. 17. Jerzy v. 3.0. 4:32 pm 03/4/2013

    Actually, plswinford had a good idea!!!

    Anybody elected as a politician should by default have his/her DNA stored, phone bugged and past searched by police – because possible misconduct of a politician is much bigger danger to a society than of average Joe. And if you don’t want police looking closely at your private life, just don’t go into career in politics. Should do wonders to behavior of political class – both the current and aspiring future politicians.

    Link to this
  18. 18. Jerzy v. 3.0. 4:44 pm 03/4/2013

    BTW – DNA testing is now routine. I suspect that some savvy criminals can leave wrong DNA sample on the crime scene.

    It is usually very easy to get hold of somebody’s DNA. A criminal can eg. wipe a knife with a handkerchief used by somebody innocent to put police on the wrong track. Would the police notice?

    Link to this

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