By Hanni Fakhoury EFF.com June 5, 2012
DNA is the most intimate and revealing part of the human body, with the potential to reveal a person — and their family’s — medical history and predisposition to disease. Because it’s so sensitive, we’ve filed an amicus brief (PDF) in the California Supreme Court urging it to rule that the Fourth Amendment prohibits the warrantless collection of DNA from individuals presumed innocent who are not yet convicted of a crime.
Over the last few years, the federal government has been building up a massive DNA database called CODIS that stores DNA samples collected by local, state, and federal law enforcement officials investigating crimes. While CODIS was initially concerned only with the collection of DNA of convicted felons, the government is quickly expanding its reach to cover two more populations: individuals entering the immigration system, and arrestees. There are now over 10 million DNA samples in CODIS from all over the country, and 17% of them are from California.
We recently published a white paper explaining in detail biometric collection in the immigration system. And we’ve repeatedly warned courts across the country in numerous amicus briefs that the government’s warrantless collection of DNA from arrestees — individuals who have not yet been convicted of a crime — is unconstitutional. While federal courts have upheld the practice, last summer the California Court of Appeal ruled in People v. Buza (PDF) that California’s warrantless DNA collection, and the placing of the samples into CODIS, is unconstitutional. And earlier this year, the Maryland Court of Appeal found in King v. State (PDF) most warrantless arrestee DNA collection unconstitutional.
With the Buza decision now on review to the California Supreme Court, our amicus brief urges the affirmance of the lower court’s decision. We note that advances in technology have made DNA collection cheaper, and thus easier and more widespread. And while the Fourth Amendment acknowledges that privacy rights of individuals convicted of a crime are diminished, expanding warrantless DNA collection to individuals merely arrested for a crime — along with individuals in the immigration system who have no criminal record — are steps on a course towards a future where everyone’s DNA is collected and maintained by the government, whether they were ever suspected of anything at all.
We’re optimistic that with the decisions in Buza and King, courts are beginning to fully grasp the ability of technology to shrink privacy — and see that DNA collection should be narrowed, not expanded.