The Expanding Use of DNA in Law Enforcement: What Role for Privacy?

Mark A. Rothstein; Meghan K. Talbott

doi:10.1111/j.1748-720X.2006.00024.x

The Expanding Use of DNA in Law Enforcement: What Role for Privacy?

Published online by Cambridge University Press: 01 January 2021

Mark A. Rothstein and

Meghan K. Talbott

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DNA identification methods are such an established part of our law enforcement and criminal justice systems it is hard to believe that the technologies were developed as recently as the mid-1980s, and that the databases of law enforcement profiles were established in the 1990s. Although the first databases were limited to the DNA profiles of convicted rapists and murderers, the success of these databases in solving violent crimes provided the impetus for Congress and state legislatures to expand the scope of the databases with little critical examination of each expansion's value to law enforcement or cost to privacy and civil liberties.

We are now entering a new stage of DNA forensics, in which successive database expansions over the last decade have raised the possibility of creating a population-wide repository. In addition, new applications of DNA profiling, including familial and low stringency searches, have been added to DNA dragnets, the use of medical samples for forensic analysis, and other measures to create a series of crucial, yet largely unexplored, second-generation legal and policy issues.

Type: Symposium
Information: Journal of Law, Medicine & Ethics , Volume 34 , Issue 2 , Summer 2006 , pp. 153 - 164

DOI: https://doi.org/10.1111/j.1748-720X.2006.00024.x [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics 2006

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References

See Simoncelli, T. and Steinhardt, B., “California's Proposition 69: A Dangerous Precedent for Criminal DNA Databases,” Journal of Law, Medicine & Ethics 33 (2005): 279–293, at 282; Reprinted in Journal of Law, Medicine & Ethics 34 (2006): 199–213; Ballve, M., “DNA Fingerprinting Trend Threatens Genetic Privacy,” Pacific News Service, July 14, 2004, at <http://www.alternet.org/rights/19234/> (last visited February 6, 2006). This article points out that in 2003 alone, over a dozen states changed their laws to expand the scope of their DNA collection.CrossRef Google Scholar

Cal. Pen. Code § 296 (West Supp. 2005); Simoncelli, T. and Steinhardt, B., supra note 1, at 279.Google Scholar

La. Rev. Stat. Ann. §15.609.Google Scholar

Tex. Gov't Code Ann. §411.1471.Google Scholar

Va. Code Ann. §19.2–310.2:1.Google Scholar

Title X of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. Law No. 109-162, 119 Stat. 2960 (2006).Google Scholar

See National Institute of Justice, National Commission on the Future of DNA Evidence, “The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group,” (2000): at 35 [hereinafter “The Future of DNA Testing”].Google Scholar

See Amar, A. R., “A Search for Justice in Our Genes,” New York Times, May 7, 2002, available at <http://www.law.yale.edu/outside/html/Public_Affairs/246/yls_article.htm> (last visited February 6, 2006); Kaye, D. H. et al., “Is a DNA Identification Database in Your Future?” Criminal Justice 16 (2001): 4–11.Google Scholar

Kaye, D. H., supra note 8, at 19.Google Scholar

Rosen, C., “Liberty, Privacy, and DNA Databases,” The New Atlantis 1 (2003): 37–52.Google Scholar

Boavida, M. J., “Portugal Plans a Forensic Genetic Database of its Entire Population,” Newropeans Magazine, April 11, 2005, at <http://www.newropeans-magazine.org/index.php?option=com_content&task=view&id=2063&Itemid=121> (last visited February 6, 2006).+(last+visited+February+6,+2006).>Google Scholar

Id.Google Scholar

Alling, S. Lane, P. S., Division of Governmental Studies and Services, Washington State University, “National Forensics DNA Study Report,” (2003): Appendix 3d, at 46, available at <http://www.dna.gov/pubs/gen_interest> (last visited February 15, 2006).+(last+visited+February+15,+2006).>Google Scholar

These expenses could vary depending on how the samples are collected, analyzed and stored, but would conceivably include the cost of devices and materials for collecting, analyzing, storing, and accessing the data, as well as the cost of training and labor cost of personnel needed to run the system. Although there have been no estimates of the cost of a universal database in the U.S., estimates done in Europe and per person profile costs can serve as a basis for a rough estimate. Based on the conservative estimate of $60 per person it would cost approximately $18 billion for the profiles. Based on the £5.5 billion estimate made by the British government for its 60 million inhabitants, it would cost $50 billion to create a national database in the U.S. (Government estimate of £5.5 billion, others up to £20 billion, for a universal database involving the approximately 60 million people in the U.K.) Deane, A., “Identity Cards in Britain,” Contemporary Review 286, no. 11672 (2005): 268–270, at 269; Boavida, M. J., supra note 11 (estimate of Portugal universal database made at 40–80 euros per person); American Society of Law, Medicine & Ethics, “DNA Fingerprinting and Civil Liberties,” Project Description, at <http://www.aslme.org/dna_04/description.php> (last visited February 7, 2006), estimating $50 to $100 per profile.Google Scholar

CODIS Program, Mission Statement & Background, Federal Bureau of Investigation (FBI) website, at <http://www.fbi.gov/hq/lab/codis/program.htm> (last visited February 7, 2006).+(last+visited+February+7,+2006).>Google Scholar

According to Dr. Paul Ferrara, Director of the Virginia Division of Forensic Science, more than half the violent crimes solved by the use of the state database involved DNA samples obtained from convicted burglers. Willing, R., “DNA Links Burglars to Harder Crime,” USA Today, December 7, 1998.Google Scholar

CODIS Program, Measuring Success, Federal Bureau of Investigation (FBI) website, at <http://www.fbi.gov/hq/lab/codis/success.htm> (last visited February 7, 2006).+(last+visited+February+7,+2006).>Google Scholar

FBI, Uniform Crime Reports, Crime in the United States, 1995, 2004, available at <http://www.fbi.gov/ucr/ucr.htm> (last visited February 7, 2006).+(last+visited+February+7,+2006).>Google Scholar

Willing, R., “DNA Matches Win Few Convictions in Va.,” USA Today, November 7, 2005.Google Scholar

See McVicker, S., “More DPS Labs Flawed: DNA Testing Woes Across State Threaten Thousands of Cases,” Houston Chronicle, March 28, 2004, at A1; Herbert, K., “Crime-lab Mistakes Spark Alert: Hundreds of Pa. Cases May Be Reexamined,” Philadelphia Inquirer, June 19, 2003, at A01; Willing, R., “Mueller Defends Crime Lab After Questionable DNA Tests,” USA Today, May 1, 2003, at A03; Hart, L., “DNA Lab's Woes Cast Doubt on 68 Prison Terms: Forensic Science at a Houston Police Unit Was Plagued by Problems. The inmates for Whom Retesting is Ordered Include 17 on Death Row,” Los Angeles Times, March 31, 2003; Stutzman, R., “State DNA Analyst's Data: Forgeries Could Result in New Trial for Rapist,” Orlando Sentinel, July 25, 2002; Baldwin, D., “Gilchrist Faces More Scrutiny: Review Ordered in Three Death-row Cases,” Daily Oklahoman, July 17, 2001; Gorman, L., “The Brady Solution: A Due Process Remedy for those Convicted with Evidence from Faulty Crime Labs,” University of San Francisco Law Review 39 (2005): 725–727.Google Scholar

Willis v. Artuz, 301 F.3d 65, 66 (2d Cir. 2002); Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992).Google Scholar

See Kaye, D. H. and Smith, M. E., “DNA Databases for Law Enforcement: The Coverage Question and the Case for a Population-Wide Database,” in Lazer, D., ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004): 247–284, at 269–271.Google Scholar

Duster, T., “Behavior Genetics and Explanations of the Link Between Crime, Violence, and Race,” in Parens, E. Chapman, A. R. and Press, N., eds., Wrestling with Behavioral Genetics: Science, Ethics and Public Conversation (Baltimore, MD: Johns Hopkins University Press, 2006): 150–175, at 168.Google Scholar

Wambaugh, J., The Blooding (New York, NY: Morrow, 1989).Google Scholar

Id.Google Scholar

See Grand, J. S., Note, “The Blooding of America: Privacy and the DNA Dragnet,” Cardozo Law Review 23 (2002): 2277–2368, at 2285.Google Scholar

See Simoncelli, T. and Steinhardt, B., supra note 1, at 285.Google Scholar

Drobner, F. W., “DNA Dragnets: Constitutional Aspects of Mass Identification Testing,” Capital University Law Review 28 (2000): 479–511, at 485.Google Scholar

Simoncelli, T. and Steinhardt, B., supra note 1, at 285.Google Scholar

Drobner, F. W., supra note 28, at 481.Google Scholar

Grand, J. S., supra note 26, at 2280–2281.Google Scholar

Bersett, K., “Victims Challenge Police Use of Controversial ‘DNA Dragnets,’” The New Standard, at <http://newstandardnews.net/content/?action=show_item&itemid=1044> (last visited February 7, 2006).+(last+visited+February+7,+2006).>Google Scholar

American Society of Law, Medicine & Ethics, supra note 14.Google Scholar

Simoncelli, T. and Steinhardt, B., supra note 1, at 285; Chapin, A. B., “Arresting DNA: Privacy Expectations of Free Citizens Versus Post-Convicted Persons and the Unconstitutionality of DNA Dragnets,” Minnesota Law Review 89 (2005): 1842–1875, at 1859.Google Scholar

Kreimer, S. F., “Truth Machines and Consequences: The Light and Dark Side of Accuracy in Criminal Justice,” New York University Annual Survey of American Law (2005): 655–674, at n.54.Google Scholar

Editors, “DNA Dragnets,” The New Atlantis 8 (2005): 104–106.Google Scholar

Shepardson, D., “Suspects No More, They Want Blood Back,” Detroit News, July 24, 1995, at 1C, noting that police planned to retain for thirty years the voluntarily donated DNA samples of 160 men declared innocent of the crime under investigation; see also Hibbert, M., “DNA Databanks: Law Enforcement's Greatest Surveillance Tool?” Wake Forest Law Review 34 (1999): 767–825, at 809, noting that the DNA of convicted individuals who are later exonerated is sometimes not expunged from state databanks; Willing, R., “ACLU Seeks to End DNA Dragnet in Search for Killer in Mass. Town,” USA Today, January 11, 2005, at 6A, explaining that only one innocent individual has been successful in suing for the return of his DNA sample.Google Scholar

See Chapin, A. B., supra note 34, at 1846.Google Scholar

Id.; see Grand, J. S., supra note 26, at 2283.Google Scholar

Grand, J. S., supra note 26, at 2279–2280.Google Scholar

Editors, supra note 36; Chapin, A. B., supra note 34, at 1842.Google Scholar

Bersett, K., supra note 32.Google Scholar

California v. Greenwood, 486 U.S. 35, 37, 40 (1988). State constitutional law, however, may recognize an individual's interest in abandoned property. See, e.g., State v. Goss, 834 A.2d 316 (N.H. 2003).Google Scholar

Warth v. Seldin, 422 U.S. 490, 499 (1975) “[G]enerally [a plaintiff] must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”Google Scholar

See, e.g., Colo. Rev. Stat. §10-3-1104.7 (2004); Fla. Stat. Ann. §760.40 (West Supp.); Ga. Code. Ann., §33-54-3, §33-54-5 (2005).Google Scholar

Butler, J. M., Forensic Typing: Biology and Technology Behind STR Markers (San Diego, CA: Academic Press, 2001): 323.Google Scholar

Bieber, F. R., “Science and Technology of Forensic DNA Profiling: Current Use and Future Directions,” in Lazer, D., ed., DNA and the Criminal Justice System (Cambridge, MA: MIT Press, 2004): 23–62, at 47.Google Scholar

I d.Google Scholar

Mass. Regs. Code tit. 515, §2.14 (WESTLAW through November 18, 2005).Google Scholar

N.Y. Comp. Codes, R. & Regs. tit. 9, § 6192.3 (WESTLAW through July 31, 2005).Google Scholar

Bieber, F. R., supra note 45, at 48.Google Scholar

Bieber, F. R. et al. (in press).Google Scholar

Williams, R. and Johnson, P., “Inclusiveness, Effectiveness, and Intrusiveness: Illusion in the Developing Uses of DNA Profiling in Support of Criminal Investigations,” Journal of Law Medicine & Ethics 33 (2005): 545–558, at 454. Reprinted in Journal of Law Medicine & Ethics 34 (2005): 234–247.CrossRef Google Scholar

Bieber, F. R., supra note 46, at 49–50.Google Scholar

45 C.F.R. Parts 160, 164 (2004).Google Scholar

45 C.F.R. §164.512(f)(2)(i).Google Scholar

45 C.F.R. §164.512(f)(2)(ii).Google Scholar

45 C.F.R. §164.512 (f)(1)(i),(ii).Google Scholar

45 C.F.R. 165.512 (f)(1)(ii)(C)(1).Google Scholar

Frudakis, T. Venkateswarlu, K. Bieber, M. J. Thomas, et al.., “A Classifier for the SNP-based Inference of Ancestry,” Journal of Forensic Sciences 49 (2004): 1145–1146; F. R., supra note 46, at 36–37.Google Scholar

See Rothstein, M. A., “Applications of Behavioural Genetics: Outpacing the Science?” Nature Reviews Genetics 6 (2005): 793–798.CrossRef Google Scholar

Id.Google Scholar

Chapin, A. B., supra note 34, at 1859.Google Scholar

Axelrad, S., “Survey of State DNA Database Statutes” (2005) available at <http://www.aslme.org/dna04/grid/statutegrid.html> (last visited February 6, 2006). Wisconsin is the only state that requires the destruction of all offender samples after analysis is performed.+(last+visited+February+6,+2006).+Wisconsin+is+the+only+state+that+requires+the+destruction+of+all+offender+samples+after+analysis+is+performed.>Google Scholar

See Future of Forensic DNA Testing, supra note 7, at 36.Google Scholar

See Axelrad, S., supra note 64, at 5.Google Scholar

Id., at 4.Google Scholar

Id., at 5.Google Scholar

Wis. Stat. Ann. § 165.77 (West Supp. 2004) (requiring destruction after analysis has been completed and the applicable court proceedings have ended).Google Scholar

Neb. Rev. Stat. § 29–4105 (2005).CrossRef Google Scholar

Ariz. Rev. Stat. § 13–610 (2005).CrossRef Google Scholar

Axelrad, S., supra note 64, at 4.Google Scholar

Id.Google Scholar