A critical case to balance Privacy and Law Enforcement Activities

By Lina Enriquez

 

Under the umbrella of the Privacy Act (1974), a provision expressed in 42 USC § 14135(a) allows agencies of the U.S. that arrest or detain or supervise individuals facing charges to collect DNA samples from them, even without their consent. The personal information, once collected, is stored and processed in the Combined DNA Index System (“CODIS”), which is a system of records as defined by the Privacy Act.

 

The broad terms used in 42 USC § 14135(a) have served as ground for a lot of state laws allowing for DNA testing of arrestees. One of those laws, enacted in Maryland in 2010, and as applied to the case of an arrestee that was subject to a warrantless DNA collection, is currently under analysis of the Supreme Court in Maryland v. King, a very significant case to define the scope of privacy interests against the law enforcement purposes that government seeks through different system of records as CODIS. In November 2012, the Supreme Court decided to hear Maryland v. King to decide whether the Maryland’s DNA Act is unconstitutional under the Fourth Amendment as applied to individuals arrested, but not convicted.

 

The State of Maryland argued in its brief that a DNA collection is just another mechanism of identification as fingerprint collection, that it serves to law enforcement purposes, and that the degree of intrusion upon the privacy of an arrestee is minimal because only the individual’s identity is compromised and arrestees “have a reduced expectation of privacy generally, and when it comes to identity specifically, no legitimate expectation of privacy.”

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-207_pet.authcheckdam.pdf

 

Arguing in favor of privacy rights, The Electronic Privacy Information Center (EPIC), a public interest research center, has filed a brief to alert that the collection of a DNA sample from an individual “raises a profound and far-reaching privacy concern. Genetic traits can identify family members and reveal predispositions to disease and mental illness. … DNA testing can also result in social stigma, discrimination in employment, barriers to health insurance, and other problems. As the Combined DNA Indexing System (CODIS) system has expanded, so too has the collection of this particularly sensitive personal information. Even after analyzing the sample to extract a CODIS profile, the government does not destroy it. … States indefinitely retain entire DNA samples after CODIS analysis is complete. Further, the dramatic expansion of CODIS underscores the likelihood that an increasing number of individuals will be subject to the collection of their DNA sample and its maintenance within the criminal justice system.”

http://epic.org/amicus/dna-act/maryland/EPIC-Amicus-Brief.pdf

 

This case, described by Justice Alito as “perhaps the most important criminal procedure case that this Court has heard in decades”, (http://www.genomicslawreport.com/index.php/2013/02/27/all-eyes-on-maryland-v-king-recapping-the-supreme-court-oral-argument/) will doubtless be a cornerstone to define whether government agencies are allowed to collect personal identification data for general law enforcement purposes and keep it stored to use it “within the scope of an authorized law enforcement activity” (See Becker v. Internal Revenue Service. 7th Cir. 1994), or whether enforcement agencies are not allowed to collect personal information without reasonable suspicion just because it can prove to be useful at some later state.