DNA Collection in the US: Where does it end?

In the late 1980’s, US crime laboratories began DNA testing. Shortly, thereafter crime labs in different States began sharing the DNA information gathered. By 1994, the DNA Identification Act was issued allowing the FBI to operate “CODIS” (Combined DNA Index System) a software and database containing the DNA information of all convicted sex offenders shared in local, state and federal levels. On 2004, California passed “Proposition 69” expanding the compulsory collection of DNA to include the DNA of everyone arrested even if not convicted, as well as detained undocumented immigrants. To this date, 26 states and the federal government allow collection after arrest without a warrant or conviction.

Currently, there is a case pending in the Supreme Court that will rule on the constitutionality of this collection. Maryland v. King involves a man arrested on an assault charge and when his DNA was collected it was traced to an earlier sexual assault. King was convicted for first-degree rape and given a life sentence. He has requested the evidence be suppressed in accordance to his Fourth Amendment right “against unreasonable searches and seizures”. The Supreme Court is divided: Justice Alito has said, "[T]his new technology [] involves a very minimal intrusion on personal privacy.” and “Why isn't this the fingerprinting of the 21st century? What is the difference?”, while Justice Scalia replied to Maryland's chief deputy attorney general statistics of DNA conviction rates, “Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. That proves absolutely nothing."

Some states also permit “familial matching” which is a deliberate search of the DNA database in search of close biological relatives to the unknown forensic profile. A serial killer nicknamed the “Grim Sleeper” was arrested in Los Angeles in 2010 using this method, based on a swap taken from his son on a weapons charge. Even more excessive than being “criminally associated” to a family member; all newborns in the US have their DNA collected for routine screenings for genetic disorders (parental approval not required). Some states then allow those samples to be stored allegedly to inform the parents of worrisome test results. Supposedly, the name of the baby is not stored but if it isn’t then how are the parents “informed”? It would completely defeat the purpose. Plus, there is plenty of evidence that “anonymized” information really isn’t so and is relatively easy to trace back the owner. This DNA may not be on CODIS but there’s certainly no assurance that the information will be kept private; history is filled with cases of accidental disclosure, identity and data theft. Finally, the most intrusive collection of DNA data: search and seizure of garbage outside a home. Since, 1988 in California v Greenwood, the Supreme Court determined that “persons placing their garbage on public streets renounce all expectation of privacy in the contents of their garbage bins.”

Why not mention sewer connections?

Some people claim these blatant privacy violations are justified by the social benefits of eradicating crime or clearing innocent people. While, I am in favor of punishing the criminals and exonerating the innocent, the police and judicial system should be able to do this without this technology. The privacy of everyone else seems like a hefty price tag to pay; especially since DNA testing is not as reliable or useful as its advocates argue. Below are some of its biggest setbacks:

Time Constraints: Related with the collection of DNA of arrestees, thousands of rape kits remain untested. In many states the evidence analysis is so far behind that the statute of limitations has elapsed. There’s a lot of DNA to process it makes the system very inefficient because most of it will not be useful to convict future crimes and will expose innocent people to false accusations or convictions, while prosecutors postpone trials and felons continue their criminal activities.

Chimerism: It has been scientifically proven that a person can have different DNA originated from different zygotes in sexual reproduction; so DNA testing of different parts of the body can give different results. However, there is no test to look for chimeras so a person may have different DNA’s without knowing it and especially without knowing where each is. Therefore, a person may be wrongfully acquitted, or as in the case of Lydia Fairchild denied her legal rights because of undetected chimerism.

DNA Mishandling: There have been many reported cases of DNA cross-contamination and mishandling: one technician was recently shown to misplace 16 pieces of evidence returning them to the wrong kits; in Nevada, a man spent four years in jail because an analyst accidentally switched his sample; and there have seen several cases of DNA testing wrongful convictions subsequently overturned by new DNA tests.

DNA Faking: There have been numerous criminal cases where criminals planted fake DNA samples at crime scenes. In the case of the “Phantom of Heilbronn” the police “found” DNA traces from a woman in crimes scenes all over Europe only to later discover that the DNA traces were present in the cotton swabs used to collect the samples. In this regard, the New York Times quoted scientist Dr. Frumkin saying: "You can just engineer a crime scene... any biology undergraduate could perform this.”

DNA testing continues to escalate exponentially, as of March 2013; the National DNA Index contains over 10,252,900 offender profiles. According to a study by age 23, one out of three Americans have been arrested by an offense so very soon the government will have a database of roughly one third of its population. In addition, many people share Justice Alito’s belief that DNA collection is the new “fingerprinting”. So probably people currently fingerprinted will soon be required to give DNA samples; i.e. foreign nationals entering the US, attorneys admitted to the bar employees, etc. But the DNA is not at all like your fingerprint it holds a lot more information like your sex, age, look, genetic diseases, etc. and it will all be available for the whole world to see and use (including for genetic profiling).