Your genetic privacy at stake

Should the police be able to collect evidence against you without a legally required reason or a warrant, but just because you've been arrested for an unrelated crime? Does the mere fact of an arrest lead to a forfeiture of your genetic privacy? How do we strike the right balance between genetic privacy and the needs of law enforcement?

By recently granting review in People v. Buza, S223698, the state Supreme Court has decided to address these questions. Last December, the Court of Appeal held that Proposition 69, which mandates the collection of a DNA sample from every person arrested for a felony, violates the state's constitutional guarantee against unreasonable searches and seizures. For the police, Prop. 69 is one more tool to help solve crimes. For the rest of us, the law represents a dangerous intrusion on our genetic privacy.

California's law on arrestee DNA collection is very broad. Every person arrested for any felony must have his DNA sample taken after arrest; there is no requirement for a judge to make a determination of probable cause before sample collection. Instead, processing of the sample can begin immediately after collection; the California Department of Justice creates a genetic profile which is uploaded to the state's DNA database, and which is accessible to law enforcement officials nationwide through the FBI's database.

Under California's law, nearly everything hinges on the arrest decision of the police, since that fact alone triggers mandatory DNA collection and analysis. As researchers know well, the police have considerable discretion in their arrest decisions: whom and where to target for enforcement, as well as the initial determination of whether to charge the relevant conduct as a felony or misdemeanor in many cases. The Court of Appeal thus noted that DNA sample collection can be subject to "variation between both jurisdictions and between individual officers." Even more troubling, police might use their arrest powers instrumentally for the specific purpose of collecting a DNA sample: an ethically troubling but legally unchallengeable tactic.

And if we want to address concerns that those convicted of crimes might be involved in other unrelated and yet unsolved crimes, state law already addresses that issue. California, like every other state, requires DNA samples to be collected from everyone convicted of a felony. So for those who end up convicted of felony offenses, the arrestee DNA law gives the state earlier access to their DNA samples.

But that's the problem: Those whose privacy rights are most disadvantaged by the arrestee DNA law are those who don't end up with criminal convictions. These include persons who are acquitted, but also those who are never charged with any crime at all. This latter group constituted nearly 20 percent of all felony arrests in 2012, according to the attorney general's own statistics.

A safety valve exists for these people, but it isn't a very good one. The state could have designed a system in which the absence of criminal charges or an acquittal would require automatic expungement of an arrestee's DNA sample. Maryland, for instance, has such a provision. In California, the burden lies entirely on the person seeking expungement of his database profile and DNA sample. Even a person eligible for expungement in theory is not guaranteed success in practice. The prosecutor may prevent the expungement by objecting to the petition, and if the court agrees with the prosecution, that decision is unreviewable under the law.

Finally, be wary of the common argument that DNA collection is no different than fingerprinting. While the profiles loaded into the state DNA database are indeed a string of numbers, what is often ignored is that these profiles are derived from biological samples that contain the entirety of a person's genetic information: sensitive medical information of present and future conditions, clues that link us to other genetically related individuals, and so on. And the information to be derived from these samples grows ever more sophisticated. These samples are not destroyed; indeed, the state's laboratories are required to store them.

State law prohibits misuse of DNA samples, but as the Court of Appeal pointed out, how would one find out if the state were using profiles in an unauthorized manner? How likely would the average arrestee be able to challenge such an unauthorized use?

The state wants these arrestee DNA samples because they are useful and, in their view, no different than fingerprints. But if arrests alone can lead to mandatory DNA sample collection, where do we draw the line? Why not DNA sampling during "stop and frisk" street counters? Why not at voting booths?

Do such broad DNA collection policies help solve crimes? Undoubtedly they do. Yet our legal system doesn't authorize searches and seizures simply by the results they produce, nor does it permit indefinite collection of deeply sensitive information on the government's simple promise to trust it. Instead, concerns about police discretion, fairness, and privacy have long informed judicial decisions about the proper scope of government incursions into our privacy, including our genetic information. The state Supreme Court should follow these traditions and affirm the Buza decision.