Antonin Scalia’s blistering dissent (pdf., scroll down) in Maryland v. King is utterly convincing. In a 5-4 ruling that included Roberts, Thomas, Alito, and Breyer, and was written by Kennedy, the Supreme Court said that the police do not need a warrant to take a sample of your DNA if you have been arrested for “a serious crime.” The case involved a man who was arrested for an assault in 2009 but convicted for a rape he committed in 2003.
When I originally read the facts of the case, I was ambivalent about the merits. Why shouldn’t we use DNA technology to solve cold cases? What sealed the deal for me in agreeing with Scalia was a point he made at the end of his dissent. There is no Fourth Amendment argument against taking a DNA sample from someone who has been convicted of a crime. So, the only people who are ultimately impacted by the Court’s rulings are people who are innocent of the crime for which they have been arrested but guilty of a previous crime. The plaintiff in the case would have ultimately been matched to the 2003 rape assuming he was convicted for the 2009 assault. While it’s nice to know that someone is perhaps more dangerous than you suspected when you are making a decision about bail, DNA testing currently takes too long to have any impact on arraignments, which must occur within days of an arrest.
The majority decision was completely disingenuous, depending as it did on the state’s interest in properly identifying suspects in their custody. I also share Scalia’s discomfort with the idea that the Court has provided meaningful guidance to law enforcement by limiting these DNA samples to people who have been accused of “a serious crime.” First, this undercuts the argument that the purpose is primarily for identification. But, secondly, in introducing the idea that someone’s hidden violent past is part of their “identity,” the Court adopts the flawed theory that the only people who have violent pasts are people accused of “serious” crimes. The majority argues that it’s important to know about someone’s violent past because it allows law enforcement and prison officers to take appropriate precautions. However, their interest in knowing that information is no different for someone arrested for delinquent parking tickets than it is for someone accused of murder.
Scalia probably doesn’t spend enough time addressing this conflation between identifying someone by, for example, fingerprinting them, and identifying someone as dangerous by running their DNA through unsolved crime databases. But that’s the trick Kennedy uses to justify these searches.
Scalia calls these warrantless DNA swabs “suspicionless searches.” Kennedy tries to tie them to suspicion by limiting their use to “serious” accusations. In other words, Kennedy is saying that if you beat up your girlfriend then there is a reason to suspect that you once raped someone, but if you committed some petty act of vandalism, there is no reason to suspect that you once raped someone. Scalia is saying that you can’t stick something in someone’s mouth against their will unless you have reason to suspect that they have committed a specific crime, and you need a warrant that specifies that crime.
When I began thinking about this, I was leaning heavily on the benefits of getting rapists and other violent criminals off the street. The invasion of privacy is relatively minimal and the benefit for public safety and justice is fairly high. But once you realize that you can legally collect this information from anyone who is convicted of a crime, it becomes clear that the ruling will only send people to jail who were wrongfully arrested for some other crime. The majority’s argument about bail is ridiculous. And fingerprinting is a less invasive and completely adequate way of identifying suspects.
I don’t know what Justice Breyer was thinking in joining the majority. Let’s just say that I’m disappointed.
Breyer has always been terrible on these issues. Why are you surprised? I’m more surprised at Scalia.
Last time we will ever see Sotomayor, Kagan and Ginsberg join a Scalia dissent.
Nothing surprises me anymore.
Microsoft, Google don’t deny participation in NSA program – 2008 – C|net
The real technical issue that the majority ignored is that DNA tests can positively clear someone but cannot positively identify someone as a suspect because what is identified are DNA types, which correspond to a number of individuals. Typically in investigations, the attempt is to reduce the probability or mistake by narrowing the suspects to those folks likely for other probable causes to be the culprit.
There is also the issue of the chain of custody of the evidence from a crime scene against which this would be matched.
That is why the majority’s identification argument is so much baloney.
It is getting depressing seeing how easily courts can toss aside constitutional guarantees of rights.
So a stop-and-frisk draws an assault on an officer charge, which allows a DNA test. That is the new technique for a dragnet. So the Fourth Amendment gets routinely stretched.
Another case in which there will accumulate too much information to analyze effectively.
Let’s face facts – we’ve pretty much lost the right to have ANY privacy.
Whether the intrusions come via our government (with things like “The Patriot Act)” and SCOTUS decisions affirming the intrusive laws – or we give it up ourselves, with things like traceable computer IP addresses, and Facebook.
Cities have video camera’s on street.
Suburbs and rural areas have video camera’s on traffic lights, to catch people running them, or speeding.
I’d like to continue to fight against this, but I’m afraid it’s already a lost cause – and it wasn’t lost with this decision, or things that W and Cheney wanted. It all started a long, long, time ago.
At least back in the day, it took period’s of war, for the government to read your mail.
When the first wire-tap was allowed, based on “suspicion,” that horse had probably already left the barn.
Anybody who uses an apple product, google product, facebook, or anything like that shouldn’t complain about privacy. You’ve already completely given up all of it willingly so other companies can make money off of you. You’ve done more damage to yourself than any sort of jackassery the NSA could pull.
That gets lost in all this silly stuff. You use gmail and access your facebook from your iphone? LOL, you shouldn’t complain if the cops put a camera in your bedroom at that point. You’ve done worse on your own.
And if we had better privacy laws, companies couldn’t get this data either. In fact, this is an even greater argument for privacy laws.
the majority decision doesn’t mention any other evidence. They got a warrant to take a second sample, which also matched. He pled not-guilty. He lost.
Did they present any other evidence at his trial? I don’t know.
It seems like DNA evidence alone shouldn’t be proof beyond a reasonable doubt. You need something else, even if it is proof of proximity to the crime.
Yep.
Routinely doing DNA swabs clutters the DNA database with lots of innocent people’s records and uses arrest (which can be arbitrary) as the probable cause itself. I doubt that it will routinely result in anything other than more work for the check-in personnel, but every now and then there will be that one solved case that advocates will use to justify the stripping of Constitutional rights. And most likely, there will be other evidence that was already there that pointed in the same direction; all the test did was shift the cognitive frame of the investigators.
Actually, Scalia occasionally votes to uphold the Fourth Amendment rights of suspects. He sometimes upholds First amendment claims as well. It’s one of the little gambits he uses as cover for his (far more numerous) lawless rightwing activist decisions. Like a stopped clock, he is correct every once in awhile. Authoritarians Alito and Thomas are basically always wrong on divided opinions, which takes real talent and complete dishonesty.
This sounds like an unworkable decision because no one knows exactly what a “serious” offense is, which is crucial to the legality of the search. Law enforcement will want to collect samples from everyone in custody, just because that seems the most authoritarian thing to do and, well, they are authoritarians. So the lower courts will have a new litigation mill to have to slog through.
Because the majority came up with this phony “identification” rationale to uphold the practice, it’s difficult to figure out exactly what their real reasons were for allowing additional DNA searches. Perhaps they thought the guy was rightfully in custody and that the gum swabbing was just such a small intrusion that the suspect had no right to complain. Morale of their story: avoid arrest, just like these 5 powerful males have done.
Frankly, the Conservative Court has always praised and supported “good police work” that doesn’t involve (too much) violence to suspects. Plus, wasn’t this some nationwide effort to create a crime-solvin’ DNA database? They don’t want to undermine the public/police resources invested in this technological thing so far. If the investigative technique in question solves crimes and doesn’t physically hurt anyone or seriously mislead or trick them, the 4th Amendment’s words are pretty much an afterthought, IMO. They think this is a reasonable police practice, end of story.
It’s perhaps more surprising that there were four dissenters here. Remember that left wing critics were saying that Kagan and Sotomayor were supposed to be closet authoritarians on criminal procedure. Doesn’t look that way.
Now all you need to do to nail someone you suspect is to arrest them for a felonious “serious” crime. Doesn’t matter for what specifically because you can drop the charges later. You swab their cheeks and run it through the database, and voila!
Whatever they’ve done, you just charge them with that.
I mean, you only get the guilty, so who cares about anyone’s rights?
You do realize what the NYPD was doing to #OWS protestors, right?
If ever there were cause for the right wing to take up arms against the overreach of the government, the standard was met by the treatment of Occupy participants by the police.
What am I missing?
The cops have long been able to pop you for anything and take your fingerprints. Then they can run those fingerprints through a database to see a) are you who you say you are? and b) are those prints associated with any other crime?
That is still not enough for a conviction. They need to explain how just because your fingerprints were at a crimescene it means you committed the crime. Means, motive and opportunity still are requirments.
And if the cops busted you without sufficient probable cause or warrants then the prints and anything else they find is poisoned.
I don’t see how DNA is any different than fingerprints. I do appreciate chain of custody and abuse issues and they are real, just no different as far as I can tell than fingerprints.
From the dissent:
He goes on to point out that “”Latent prints” recovered from crime scenes are not systematically compared against the database of known fingerprints, since that requires further forensic work.”
Part of this about the horrible legal reasoning in the majority decision and part of it is about the balance of interests between catching crooks and the 4th Amendment.
Simply put, the Maryland law has everything to do with solving cold cases and nothing to do with identifying who they have in custody. Scalia proves that beyond any reasonable doubt.
On the merits, however, his argument is that the Court has never allowed the cops to conduct warrantless searches of people, houses, cars etc. unless there was a suspicion of a specific crime. In fact, a warrant has to specify the crime. There are narrow exceptions for public safety and students, but not for criminal investigations.
Fingerprints are no more intrusive than being placed in handcuffs and physically shoved into a police car. Your DNA implicates your health and requires inserting something in your body. No one will deny you health insurance because they have examined your fingerprints.
As with many laws, you have to envision mischief. First, why would the police want to collect evidence without a warrant? It’s usually because they can’t prove suspicion. A murder happened in your town and all you have is some DNA evidence but no leads. Why not arrest everyone and forcibly swab them? You’ll probably solve the crime. You don’t do that because it is an unlawful invasion of people’s privacy to accuse them of a crime based on the most generalized suspicion and forcibly collect sensitive evidence from them.
Want to reduce crime? Just haul in every dirtbag you can find, charge them with some trumped up bullshit, and run their DNA through the FBI databases. Yes, you could conceivably do this with fingerprints but that’s not how fingerprints are normally handled.
Ordinarily, fingerprints are collected from unknown sources and the FBI tries to provide identity. They don’t routinely send known fingerprints to the FBI to check for criminal activity. They just ask about the person they have in custody by name.
No one can deny you health insurance because of your health anymore anyway.
Has that kicked in yet? It was just for kids at first.
kicks in next year with the exchanges and subsidies
Still not buying it.
The cops take your fingerprints not just to check that you are who you say you are (but they won’t check unless they actually think you are lying and can only check it anyway against arrest, security clearance and military records) but more to have a record of your identity should you ever be arrested again.
Until about the late 90s it wasn’t very easy to check fingerprints against the database because 1) it wasn’t a very rationalized and uniform database and 2) they didn’t have the computing power and technology to rapidly search millions of prints. (I actually helped a team at Lockheed Martin define a project for the FBI to create that “juke box” technology which was originally to intended to scan prints at border crossings). Consequently, they didn’t do it much — not because of legal concerns but because of technological barriers.
Despite what Scalia may think, a decent set of prints lifted from a crime scene can and is routinely checked against the database. It is really easy and there is no reason not to.
What is different is once the cops take your fingerprints they don’t go fishing to see what crime scene they showed up at. They could. But they don’t.
With DNA that is happening.
As for intrusion… If you’ve ever been printed and had your fingers grabbed and forcibly manipulated and then tried to get the ink off your hands I think you’d say having a Qtip rubbed against your cheek for half a second is a lot less intrusive.
Just so we are clear, Scalia isn’t talking about latent prints in the same way that you are.
If you are working over a crime scene that’s in public, you don’t need a warrant. If it’s in a home, you do. If you find prints, you naturally want to find out if they match anything on record. But you are doing it in furtherance of solving a known crime. They don’t send requests to see if those prints have committed some other crimes. They send them to learn someone’s identity.
Presumably, they did the same with this rapist’s DNA original evidence and that’s why there was a record of it the second time around. The difference is that when they originally accessed the DNA database, there was no match, no identity.
When you are arrested for drunk driving or something, they don’t send your prints to the FBI to troll for other crimes you may have committed. They don’t have a reasonable suspicion to do that. That’s what Scalia is saying.
He’s also saying that there is a fundamental difference between obtaining fingerprint information and genetic information, both because of the difference in their nature and because of the process involved in obtaining it. A cheek swab may be a minor thing and less annoying to you than have black crap smeared on your fingers. Others may feel differently. But there is no question that DNA information is potentially harmful to you if it leaks out while the same is not true of your fingerprints. Maybe the insurance problem will be solved by next year, but the employment problem won’t be. Your genetic information contains information about your health that you should not be compelled to share without anyone having proved your guilt in court.
I guess now that this is the law of the land, we need to make sure that the police are included in all the HIPPA rules regarding disclosure of medical records.
There are already severe Federal penalties for unauthorized release of a DNA profile. Is it too much to ask that people pontificating about this stuff take the trouble to acquire some basic information?
But why are there severe penalties for DNA but not for fingerprints?
Because of ill-informed alarmism from well-meaning but scientifically illiterate people. I show tour groups my own DNA profile all the time. I would cheerfully send them home with a copy.
If you get pulled over for not signaling a lane change they will run a check to see if you have outstanding warrants. The cops now use computers and cameras to scan thousands of license plates an hour to check if any car in site has expired registrations, licenses or open warrants.
I think that sucks but I don’t see it as a constitutional issue. It is something they always could have and would have done if the technology existed.
Again just because your DNA or fingerprint was at a crime scene it is not enough to even arrest you let along indict or convict you.
And yes this is ripe for abuse but that calls for rules and oversight and accountability, not necessarily a constitutional ban.
running a criminal background check is not the issue. The issue is collecting evidence from you without a warrant and without your consent in the furtherance of investigating unknown criminal behavior.
It hasn’t been raised but, even compulsory fingerprinting without a warrant now impacts your right against self-incrimination if the prints are used for a fishing expedition rather than a mere identity and background check.
As per my other comments, this I completely agree with.
Sorry but being who you is not self incrimination. Crime requires behavior. The have to prove behavior. They have to prove it is your behavior. Your prints and DNA is not enough.
When you testify in court you can call on the fifth amendment but to my knowledge you cannot call the fifth when they ask you for your name and to take the oath.
This Supreme Court case is about a man who was convicted of rape when the only evidence presented against him was the DNA. At least, that’s how it is being reported.
Right. But they still have to place him at the crime. DNA and prints can show up any time and by lots of means. That alone is not enough to indict or convict.
They didn’t place him at the crime. I guess he is a resident of Maryland, but that’s all they had.
Think about it like this.
Fingerprints= I/P address
DNA= Hard Drive
Both can be used to identify you, both can be used to implicate you in a crime, but only one has any meaningful impact on your privacy.
If I want to know if you used your computer to illegally access another computer, I don’t need your hard drive. I shouldn’t be able to take your hard drive with no warrant and search for any criminal behavior just because I suspect you used it to access a unauthorized computer.
I should go get a warrant that allows me to discover your I/P address. And that warrant should specify exactly why I have reason to suspect you of making an unauthorized connection.
And, if for some reason I am not going to get a warrant, I definitely shouldn’t break into your house and steal your hard drive.
DNA contains very personal, private information and you should need a warrant to get mine.
Your DNA can also be used to identify with some probability your brother or son. I don’t believe that that’s true of fingerprints.
Well it may seem spurious, but you can destroy your finger prints.
My guess is that Scalia knows that the stain on the blue dress wasn’t caused by Clinton and that a DNA search on the dress would have exonerated him.
Personally, I’d be alright with the government collecting a DNA sample from everyone at birth. That would eliminate the potential for discrimination. I don’t see this as particularly invasive.
If the police can take your fingerprints, or your picture, for identification purposes, I don’t see why they shouldn’t also be allowed to swab your mouth to get a DNA sample. Taking someone’s picture or fingerprints and comparing them to a database is allowed , and it happens all the time that poeple brought up on lesser charges are matched to worse crimes this way. But doing the same with DNA is a “suspicionless search”? I don’t see the difference. Anyway, eventually our DNA will be collected at birth anyways, for identification (among other things, including identification of medical conditions). It’s a brave new world.
Reasonableness in a 4th Amendment context is determined by balancing the legitimate governmental interest against the intrusion into an individual’s privacy.
The government has a significant interest in the health and welfare of the citizens. Rape and other crime, particularly violent crime, have a very significant harmful effect to citizens and society. This is, imho, favorably comparable to the governmental interest in providing education such that warrantless searches of students are justified.
A mouth swab is a very mild intrusion into individual privacy.
On balance I would agree that the governmental interest in detecting rapists is far greater than the intrusion into individual privacy of having to undergo a mouth swab.
I want to add that I think the majority’s attempt to claim the government’s legitimate interest as being to ensure identification is a pretense.
I suspect that the conservatives balked at the idea of expanding governmental interests in protecting the public welfare. It leads to a lot of problems for them. On the other hand, they don’t like rapists, so they used a pretext to justify that prong of the reasonableness test.
I keep wondering where is the money to pay for all this? Aren’t there like 10 years worth of backlog on rape kits? I have visions of mounds of DNA kits gathering dust in some evidence locker.
Some half-assed contractor will sell local juridictions a bill of goods. And it will work until there is a huge messup that gains national attention. Not likely to be good forensic science on today’s budgets.
That strikes home! Today I went to have my FOID (Firearm Owner’s IDentification) card renewed. Actually, instead of a quick update, you have to reapply in full every five years. Illinois switched from State Police processing to some contractor (probably with connections like everything else here). The contractor only had 20 people to check applications. In January alone there were over 76,000 applications. Eventually they got fired (probably with a nice cancellation fee for a golden parachute) and got replaced with another. Processing time is around six months. Applications apparently spiked after Newtown and again after a Federal Court ruled Illinois’ ban on concealed carry was unconstitutional. Shows you what a nightmare full background checks on every gun sale would be.
Good thing I don’t actually own a gun because their processing delay would make me a felon. Imagine if you went into DMV in the month your driver’s license expired (i.e. June) and you found out it wouldn’t be renewed until December!
BTW, this is one reason that Republicans say that government can’t do anything right. I found out about the contractors from Google, but how many just know they mailed their application to the state and it took six months to process? So government (i.e. bureaucrats) get the blame when the fault really lies with privatization? I’m sure I will be hearing from Teabaggers that it’s all a Democrat(sic) Plot to Take away Second Amendment Rights.
No private company can put a DNA profile in CODIS, or even use one for a one-time search. They can only do testing on behalf of a public crime lab, which must verify the quality of the data and do the upload itself.
To me, taking a DNA swab is the same as taking fingerprints. Why do they want your fingerprints? To link you to another crime. To see if you are an escapee. Etc. Etc.
I have no problem with taking DNA and think everyone should have a sample taken before they leave the delivery room.
Oh, because then no one would ever plant DNA evidence at a crime scene? Might be just a bit easier than planting fingerprints.
Anything can be planted/faked/perjured about. No, identification is my real concern. I have become aware, through helping my grandsons get driver’s/licenses, how extraordinarily difficult it is today to prove that you are you.
One argument made is that women having out of wedlock children do not want to be identified later in life. I would hope that the “shame” of having pre-marital sex is fast going away from our society.
Take it then that you support a national identity card system.
Yes. I take it you don’t.
Probably less so today than yesterday. However, even if I did support a national ID system/card, I sure as hell wouldn’t want it to include DNA profiles or linked with DNA databases.
+1. I oppose a national ID, but I can see some sort of number like a SS number. Would certainly make abolishing voter registration easier. And yeah, a DNA database is worse than the NRA’s mental-health database.
So how would you control fake national ID’s? I found out last year that someone has been using my late mother’s SSN as earnings are still being credited although she last worked about thirty years ago and has been dead for six. Voting I understand. This is Cook County. We do have a Spanish surname. My (German) mother had Magdalene as her first name. That could easily be taken as a variant spelling of Magdalena.
On second thought, it wouldn’t be bad if she were still alive because those earnings would be increasing her SS check.
DNA is just like photographs and fingerprints. Just harder to fake.
Actually, fingerprints are more accurate.
You don’t know what you’re talking about. Matching two complete single-source DNA profiles is such a no-brainer that it’s easily done by rather simple software. Matching latents to reference prints is a tricky matter requiring subjective judgements; fingerprint database searches only return lists of candidates which must be laboriously evaluated by experienced analysts.
Didn’t it come out at some point that most of the FBI’s fingerprint database was fuzzy garbage?
Not the database, but the way some of their analysts were making identifications. And then the scientifically ludicrous claim that the identifications are 100% certain to be correct, which blew up in their faces in a high-profile “terrorist” case.
Thanks.
The government took my fingerprints three times – when I joined the Air Force, when I joined Civil Service (Department of the Navy) and most recently when I joined the Postal Service. It’s a disagreeable messy process and at least one set was badly smudged. I would much rather have given them a swab from my mouth.
My real problem with this, is that a lot of people who have done nothing will be put into the database. Oh look, arrest with some made up probable cause of looking at the cop funny.
I’d be more apt to let this go if the finger prints or DNA were destroyed if you 1) arrested the person but don’t charge them 2) if they were proven innocent in a court of law.
Put everyone in the database. That way, you can prove that you are you and not a wanted criminal or an illegal immigrant or saboteur or spy.
And what if the only DNA found at the scene of a crime is yours? And you can’t prove that you couldn’t possibly have been there? The cops will look no further once they have the DNA match. A jury will convict. Increases the opportunities for “perfect crimes.”
Imagine the technology and systems in the hands of a totalitarian state. How many keystrokes would it take to turn the DNA identity of anyone into an “enemy of the state?” Proving that “you are who you say you are” wouldn’t be any help to you at all.
Seems very unlikely that the only DNA found would be mine, also that I would have no alibi. Jury conviction with no motive? It happens, but again seems like a good lawyer could beat it. It does take “beyond a reasonable doubt”. And if you bring in Jury prejudice then DNA hardly seems necessary.
It doesn’t surprise me at all 😐 http://linkapp.me/tfchE
What does that link have to do with the subject?
Why do you think they started taking everybody’s finger-prints upon arrest?
The idea this was and is done primarily for identification is untrue and even silly.
For the longest time, unless you had committed a crime in the past or been in the military there was no way to use prints to verify who you were.
But it has always been possible to try for a match against prints left at crime scenes or otherwise connected to crimes on record.
So the point of printing everybody WITHOUT A WARRANT AND WITHOUT PROBABLE CAUSE was just to go fishing for a match, and the same is true of DNA sampling.
And how does Scalia, the big-mouth textualist, get to make this call, anyway?
The constitution forbids unreasonable searches and seizures, and this is neither.
And the constitution does NOT say a warrant is required for every search or seizure, anyway.
So Scalia is relying on invisible ink as much as the others.
The difference is that for him it’s an egregious betrayal of principle.
The distinction between fingerprints and STR DNA profiles is a complete red herring, there is no meaningful distinction. Scalia harms his own cause with his ignorance on this point (and his snark merely makes him look foolish).
Searching a DNA database or a fingerprint database with samples from an arrestee are the same thing; either both are constitutional or both are unconstitutional. Personally I think they’re both unconstitutional, and making that case is only harmed by the hysterical rhetoric that surrounds DNA, as we see on this thread.. I’ve exonerated many suspects, and I’ve worked on Innocence Project cases. DNA has freed a lot of innocent people who either might have been, or actually were, convicted based on far less reliable forms of evidence.
You seem to be missing the main issue in the case, which is whether or not the government can operate without warrants when gathering evidence from you when they don’t even know what crime they are investigating. This includes your legal right to refuse cooperation in the absence of a warrant.
You should think about how fingerprints and DNA are different, not only about how they are similar. To not consider the differences is simply begging the question.
But when you think about it, make sure you are always thinking about it in a warrantless context.
For example, there is one database for identification. And there is another for unknown samples associated with crimes.
Let’s say that you have someone in custody who you think is lying about their identity. You could fingerprint them or do a DNA swab and then run that against a database to see if you can prove or disprove their identity. Or, you could run it in the unsolved crimes database to see if they are associated with any crimes. These are different activities, and for Scalia the difference is that one is perfectly legal and the other violates your 4th Amendment rights. Kagan, Ginsburg, and Sotomayor agree with him.
I’m missing nothing, and kincly stop lecturing me about my own profession; I know a hell of a lot more than you do about how CODIS works. I’m opposed to arrestee CODIS indices / searches (and opposed to going fishing with fingerprints taken at the booking station, as well). But rapid DNA profiling at booking stations will soon be available at the booking station and enable DNA to be used for identification, same as the ostensible rationale for prints now. Whereupon your and Scalia’s argument will collapse. You need a better one, and the only better ones will need to treat DNA and fingerprints as equivalent when used for the same purpose, because they are. Starting from that premise you can consistently oppose the use of either for fishing expeditions. But the idea that DNA is somehow special compared to fingerprints is completely bogus.
If I am a black woman with a BRCA1 mutation that puts me at great risk of getting breast cancer, I do not want that information to be public and I don’t want to depend on criminal penalties to protect my privacy. I don’t want to share my genetic information with anyone. It’s a completely rational position. If you don’t have a warrant and you haven’t convicted me of a crime, I don’t want to be compelled to give you a DNA sample simply because you have accused me of a serious crime. Now, if you are going to do this anyway, I don’t want you to use it to self-incriminate me, but that’s second in line here.
There is no realistic scenario of law enforcement testing things like BRCA1- there’s nothing in it for them. This is what I mean by ill-informed alarmism.
A realistic prospect that you SHOULD start thinking about is testing crime scene evidence with a panel of markers that can tell you a lot about the suspect’s appearance. The science and technology are here right now and could be implemented at any time. We’d better start thinking about the implications and how we want to regulate that. But it has fuck-all to do with the issues in Maryland vs. King.
It’s not realistic that your DNA might be used for a purpose that is unauthorized? The sample and any recorded information about the sample is completely secure? Everyone should feel totally comfortable about sharing this personal information with the government?
I agree with you that government isn’t testing these samples for mutations. They’re testing it for gene sequences, not individual genes. That doesn’t mean that the collected sample and resulting information can’t carry meaning for your health.
You can call it alarmist if you want, but my personal DNA sequence is not something I want to share with anyone. It’s called privacy.
There is no reason on God’s green earth that the cops WANT to test anybody for BRCA1. That’s not going to solve any cases for them. Stop chasing phantoms, it only blunts opposition to real problems and makes you sound ridiculous to professionals.
First of all, WTF do I care about professionals when the issue is political? But, secondly, I never meant to suggest that the police would want to test someone’s genome for health risks. What I said is that people have the right to keep that information to themselves and not give it against their will to a third party who is then responsible for keeping their secrets.
Again, this is the equivalent of the cops taking your hard drive and sending it to the FBI (without a warrant) to see whether or not you embezzled money and then getting arrested for looking at kiddie porn. We can all agree that it’s nice to identify people who like kiddie porn, but it’s not respectful of the 4th amendment to treat people’s privacy this way.
To be more specific to your concern, it’s like sending your hard drive to the FBI to have them check for system errors and just trusting that they will not look at your browsing history. It’s also like sending your banking and credit account numbers to the government and trusting that they won’t be hacked.
It’s really a simple point that Scalia was making. We have never before said that you can compel someone who is not suspected of a crime to give you evidence that might implicate them in that crime, especially when we don’t even know what the crime is.
Do you remember the Rampart scandal in Los Angeles?
Basically, the police were dealing with gangsters and drug dealers on a daily basis and they knew what they were doing but they didn’t want to do the hard work of making cases. So, they planted drugs on these dirtbags to get them off the streets. (They also kept drugs they confiscated and used them or sold them, but that’s not the issue here).
That was clearly wrong on every level even though the result was mainly to get gangbangers off the street and into the correctional system where they belonged.
Here we have that kind of behavior endorsed by the Supreme Court. At the least, we have the Court creating a powerful incentive to charge people you suspect with a crime just so you can have the excuse of running them through the cold case file.
It doesn’t have to be that way. Why not simply say that anyone who has been convicted of a crime has to submit DNA and then we can solve a lot of cases without creating an incentive for false arrests and trumped up charges and violations of people’s privacy?
Politics- specifically the internal politics of the law enforcement community- is precisely one of the things you don’t understand about this issue (the other being the science.) If you want your voice to be heard, you have to have some idea what you’re talking about and refrain from talking nonsense like this “hard drive” shit. Of course, if you don’t care about that, rant on- it’s your blog.
Professionals in the DNA testing field are informed but not disinterested. The more tests, the more money. It’s like setting environmental policy by asking the opinion of drilling operators. Yes, they know more about drilling safety than anyone. That’s what makes them so dangerous.
I don’t get Breyer either
DNA evidence is so much worse than fingerprinting because at DNA evidence can be planted much easier.
You at least have to have a real live finger making a real live finger print on some object, then place it at the scene of a crime. DNA evidence only requires some speck of the accused to present, a hair, fingernail or even spit. The worst in us imagines the oversimplified scenario of DNA convictions in rape cases.
It is STILL circumstantial evidence all the same.
I hate agreeing with Scalia but being an idiot doesn’t necessarily mean you are a stupid idiot, in his case. It is a fishing expedition and he called it out.