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.

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