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Why We Are Losing Our DNA Privacy Rights and What Legislators Can Do to Save Them

This is a particularly good time to think about our Constitutional rights to protect our DNA from government capture and analysis. If we don’t consider it soon, we may lose all rights to protect the most intimate details of our lives and bodies, leaving us with virtually no privacy at all.

In 2017, the President signed into law the Rapid DNA Act, which loosens the restrictions on DNA samples entered into the Codis database, encouraging use of a new breed of DNA analysis equipment by local law enforcement. According to CNBC, the global DNA testing market is estimated to grow from $2 billion in 2018 to $20.8 billion by 2024, with local police driving much of the growth.

At issue is a new “magic box” called the Rapid DNA machine which, according to the Washington Post, “can analyze the DNA in a swab and produce a profile of 20 specific loci on the DNA strand in less than two hours. Some local police departments and prosecutors have been using Rapid DNA machines for about five years to solve crimes.” The quicker these easy-to-operate machines are adopted by local police, the more people’s DNA is pulled into a system that deposits the identifying information in Federal data bases.

And the addition of these machines as a local law enforcement tool can be a substantial Fourth Amendment and privacy problem for non-suspects whose data is captured by police. The New York Times interviewed a constitutional scholar about this issue: “It’s a lot harder to resist the temptation just to run some people’s DNA, just to see if there’s anything useful that you get out of it,” said Erin Murphy, a law professor at New York University and author of “Inside the Cell: The Dark Side of Forensic DNA.” That approach challenges the “fundamental way we’ve structured liberty in our constitutional order.”

Professor Murphy also believes that racial bias will be exacerbated by this practice and that an investigative approach that “starts with everybody’s a suspect, and then let’s go see if we can find a crime they’ve committed — I think that’s a deeply problematic inversion of how we do things.” Making such techniques more attractive to police is the fact that, while access to the FBI’s Codis data base is highly regulated, there are generally no rules about how police are allowed to use local DNA sample information.

What’s more, the magic box works well for a cheek swab or blood sample gathered directly from the subject, but works poorly for DNA collected from crime scenes, which is often mixed with multiple types of cells from multiple contributors. Further, analyzing crime scene evidence destroys its value for further analysis. When the federal Rapid DNA law was passed, the National District Attorneys Association said it does not support the use of this technology for analysis of crime-scene DNA samples unless they are analyzed by experienced DNA analysts. The same warning is echoed by the FBI Scientific Working Group on DNA Analysis which states the Rapid DNA machines should not be used to interpret crime scene samples.

Finally, the New York Times article cites a Pennsylvania law enforcement expert as saying that ninety percent of the people asked by the police agree to provide a DNA sample. Many people do not know they are allowed to refuse and do not understand that their DNA will be held indefinitely in local and maybe even national criminal databases.

The ACLU describes law enforcement DNA testing as the “nuclear weapon of identifying technologies,” and says, “It can reveal much more – and more intimate – information than simply our identity, including our propensity for certain diseases, our family members, and our ancestry.” DNA can reveal inherent susceptibility for alcoholism or drug use and even suggest sexual preference. People who contribute DNA to police collections are also putting family members at risk of arrest, as police are using the technology to track suspects through their DNA family ties.

I have often written that law enforcement officers will take as much leeway with our Constitutional rights as we give them. Unless our legislature puts limits on what can be done with Rapid DNA machines and how DNA databases are collected and used, police will push these technologies farther and farther until we have no right to keep our DNA private at all.

The problem with the Supreme Court’s Fourth Amendment subject test of a “reasonable expectation of privacy” is that, once we expect the police can see everything, then we have lost all our privacy. How can you reasonably expect privacy when you know that the local police are storing your DNA and can use it for any purpose? See my 2015 talk at RSA on “The Gasping Death of the Reasonable Expectation of Privacy” for more details. Unless we place common sense restrictions on new law enforcement technologies, we cannot expect any privacy at all. And if we can’t expect it, the courts, under the current set of rules, will not protect it.

So, what sort of protections might be passed to regulate use of Rapid DNA by local police forces? We could force police to bring a warrant to take and test a person’s DNA if the person does not voluntarily provide it. Currently, police can root through trash cans or collect drinking containers to capture DNA without ever telling the data test subject. The Supreme Court will not let police compel you to identify yourself or show ID in public without a reasonable suspicion that you have done something illegal. So why should they receive a Constitutional “back door” to the same information just because you were drinking a coke and left the can behind?

We could also pass legislation stating that if a person voluntarily provides DNA to police, that DNA cannot be used for research on family members without express permission.  We could simply require disclosure of specifically how DNA may be used prior to collection, and if a method or practice is not disclosed, then that DNA sample cannot be used for that particular purpose.

Or we could simply limit what can be done with a sample once analyzed.  The police claim they buy these machines for the purpose of seeking investigative matches to DNA found at crime scenes, so we could pass a law limiting the use of Rapid DNA readings to crime scene matching and nothing else without a warrant. This would prevent the misuse of DNA for determining characteristics of the people described by the sample.

Cities and states are considering and passing legislation to restrict the use of facial recognition technology.  It seems to me that you offer your face to everyone every day, but your DNA, which can tell much more about you, is a secret that the founders would have chosen to protect if they knew it existed and how much information it contained. But few legislators are introducing DNA protection laws before it is too late and we are all included in police databases, criminal or not.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 30

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About this Author

Theodore Claypoole, Intellectual Property Attorney, Womble Carlyle, private sector lawyer, data breach legal counsel, software development law
Senior Partner

As a Partner of the Firm’s Intellectual Property Practice Group, Ted leads the firm’s IP Transaction Team, as well as data breach incident response teams in the public and private sectors. Ted addressed information security risk management, and cross-border data transfer issue, including those involving the European Union and the Data Protection Safe Harbor. He also negotiates and prepares business process outsourcing, distribution, branding, software development, hosted application and electronic commerce agreements for all types of companies.

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