California's warrantless DNA collection law faces criticism from civil liberties advocates

Sunday, November 10, 2013 by: David Gutierrez, staff writer
Tags: warrantless DNA collection, unconstitutional, civil liberties

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(NaturalNews) Civil rights groups allege that a California law allowing police to collect DNA samples without a warrant not only invades the privacy of innocent people but also places them at risk of false arrest and imprisonment.

The law in question, Proposition 69, allows California police officers to collect DNA from any person arrested on a felony charge. All samples must be submitted to the national Combined DNA Index System (CODIS), where they will remain forever - even if the charges are later dropped as groundless or the suspect is acquitted by a jury.

Every U.S. state contributes to CODIS and can search the database. 22 states collect DNA information from people who have merely been accused (not convicted) of a crime. As of January 2012, there were more than 10 million DNA profiles in the system, or one in 30 U.S. residents. Fully 17 percent of those profiles came from California.

Haskell v. Harris

Proposition 69 is being challenged in the case Haskell v. Harris, which stems from Elizabeth Haskell's 2009 arrest at a peace rally. Haskell was charged with "obstructing a police officer," a felony, and ordered to give a DNA sample via cheek swab. When she objected, she was threatened with further misdemeanor charges.

The 9th Circuit Court of Appeals previously heard the case, ruling the law legal. Following a recent Supreme Court ruling in the similar case of Maryland v. King; however, the 9th Circuit agreed to give Haskell v. Harris another hearing.

Legally, Proposition 69 is being challenged for violating the Fourth Amendment to the U.S. Constitution, which protects against unreasonable (warrantless) searches and seizures.

"A DNA sample - taken from a simple cheek swab - contains a person's entire genetic makeup," wrote Jennifer Lynch, an attorney with the Electronic Frontier Foundation (EFF), in a
"friend of the court" brief.

"This is private and intensely personal information that can reveal where our ancestors came from, who we are related to, whether we are likely to suffer from genetically determined diseases, and possibly even our behavioral tendencies and sexual orientation."

Given the rapidly advancing pace of DNA technology, the EFF argues, privacy concerns should be given primacy.

Another danger posed by dragnet DNA collection, the EFF warns, is that entire families could be profiled based on the arrests of their relatives. Because black Americans are disproportionately represented in CODIS, the organization noted, they would be at particular risk from such profiling.

"If familial searching were conducted on a mass scale, as many as 17 percent of U.S. African Americans could be identified through the DNA profiles already in CODIS (versus only 4 percent of U.S. Caucasians)," Lynch wrote.

False arrests

While such concerns may seem abstract or far-off, irresponsible DNA collection has already had dire consequences for innocent people.

"In San Jose, Lukis Anderson spent five months in jail after a database search linked his DNA to DNA found on the fingernails of a murder victim - even though Anderson had been hospitalized when the murder occurred," Lynch wrote.

"In England, David Butler spent eight months in jail after a database search falsely matched his DNA to that found on a murder victim - despite evidence establishing his innocence," she wrote.

"These concrete harms can only occur when innocent persons' DNA is collected and retained."

Civil liberties advocates warn that, if DNA collection is not reigned in, police power will continue to increase with new technology, until citizens can have their genetic material collected at routine traffic stops.

"Without hard limits on DNA collection, these tools could easily be used with little or no real suspicion of criminal activity," Lynch wrote.

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