California Will Keep Your DNA on File Even if You Haven't Been Convicted of a Crime

The Electronic Frontier Foundation, the Equal Justice Society, and others are challenging the practice in court.



Of the hundreds of thousands of felony arrests made in California last year, only 66 percent ended in a felony conviction. But even when the accused aren't convicted, the state still keeps their DNA on file.

Now the Equal Justice Society (EJS), the Center for Genetics and Society (CGS), and CGS consultant Pete Shanks are suing to stop the retention of DNA for those who have not been convicted of a crime. The plaintiffs, who are being represented by the Electronic Frontier Foundation (EFF), argue that the policy violates the Fourth Amendment's protection against unreasonable searches and seizures.

When the state seizes and analyzes DNA, the information is uploaded to a national database called the Combined DNA Index System, or CODIS. There it remains indefinitely, unless someone's record is expunged. (According to the EFF, of the 750,000 profiles eligible for expungement in the last decade, only 1,510 requests have been made and 1,282 granted.) Those affected by this practice include those arrested without probable cause and those arrested and released without charges.

California keeps the DNA even of people arrested for low-level victimless offenses, which can include drug use. Maryland, by contrast, only retains the DNA of people arrested for serious felonies.

Lisa Holder, interim legal director at the EJS, argues that California's policy disproportionately affects black men. In the district where the case was filed, she tells Reason, "African American adults are 7.1 times as likely to be arrested and 11 times as likely to be booked into the county jail." She rejects the common argument that this simply means blacks commit more crimes, pointing to a study commissioned by the California State Assembly that showed "an astonishing 92 percent of the black men arrested by police on drug charges were subsequently released for lack of evidence or inadmissible evidence." For white people, the figure was 64 percent; for Latinos, 81 percent.

Meanwhile, the EFF notes that DNA identification is not as foolproof as many believe, since sample mix-ups and subjective misreadings have implicated innocent people in the past.

Michael Risher, an attorney on the case, tells Reason that the government has 30 days to respond to the legal complaint. The government can also choose to file a demurrer, which would effectively dismiss the case.

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  1. Science Magazine podcast had an episode where they interview someone talking about building a centralized, mandatory DNA database for forensics. The tone of it is quite frustrating because he talks about all the privacy and moral issues as mere impediments that we have to figure out how to overcome. It’s like, dude, listen to yourself.

    Exploding the Cambrian and building a DNA database for forensics

  2. I don’t know. I think the cat’s pretty much out of the bag on this one. Even if you don’t submit, a relative will, which in many cases is enough. Also if the expungement rate is so low, then it’s clearly not something the alleged victims care about. (I am amazed by the low rate, however. I certainly would apply.) #convergenceisnighmyfriends

    1. My guess is that most of these people don’t know that the state is retaining their DNA.They figure case dismissed is the end of the story.

  3. California Will Keep Your DNA on File Even if You Haven’t Been Convicted of a Crime.

    Welcome to the Democrat Supermajority!

  4. Waste of time. The government will keep it on file somewhere hidden, that’s what they do. It may not be usable as evidence, but it will surely be used in investigations, even in frame-ups if they are so inclined. Just as the US and UK sent planes on random missions to provide an excuse for finding U-boats to hide that they had cracked the German and Japanese codes, so will governments find all sorts of ways to use the info they have squirreled away without disclosing the true source.

    Like banning license plate scanners or internet scanning. All it will do is hide it, not stop it.

  5. So instead they can just subpoena from 23and me?

    “Meanwhile, the EFF notes that DNA identification is not as foolproof as many believe, since sample mix-ups and subjective misreadings have implicated innocent people in the past.”
    DNA can no longer be used a evidence, since it has been shown to be unable to even determine sex. Several women have been mis-identified as men, and vice versa.

    1. DNA is not used in courts to determine sex. They are used to determine identity. As in “does this DNA from the crime scene match the DNA of the accused”. In this case it’s like fingerprints. Problems if you have a partial match, but in the case of DNA extremely accurate if you have a complete match.

      Where it’s problematic is that the state can now use the DNA to find out private information about the those on file. Like inferences of their medical history, and whether their X/Y chromosomes match their sex. Which is none of the state’s business. Even when the state has a Democrat Supermajority.

      1. re: “extremely accurate if you have a complete match”

        I think you need to read up on the Prosecutor’s Fallacy. DNA evidence can reliably disprove a hypothesis that ‘the butler did it’ but DNA alone cannot prove the reverse.

      2. Just to illustrate Rossami’s point. Let’s say there is a 1 in a million chance for a random person to match a DNA sample at a murder scene. Let’s also assume that the DNA definitely comes from the killer. Further assume we test a database of 100,000 actually innocent people. The probability you get at least one match in those 100,000 innocent people is 9.5%.

  6. We need the Reverend to get on here and enlighten us uneducated slack-jawed rubes about how the benevolent state of California is doing this for our own good.

  7. California is should stop using the books 1984, Fahrenheit 451, and a Brave New World as the inspirations for the way to run a State.

    1. Yes and maybe read Animal Farm and realizing it isn’t a children’s story. It’s a short read so it shouldn’t be a burden for the half wits in State government. I live in this god awful place and can say with certainty that the elected State representatives may be the largest single group of complete spineless imbeciles assembled in a single location.

  8. I was required to hand over my DNA 6 years ago after a DUI arrest or face a harsher punishment. Why? You know the answer to that…

  9. So I dislike the premise that something is a violation of privacy and civil liberties only BECAUSE it adversely affects a designated victim group. If it’s wrong, it doesn’t matter that it disproportionately harms blacks, it’s still wrong even if the only victims are white males.

    1. Well yeah. Gay and transgender white males.

  10. It’s in a government’s genetic makeup to keep as many databases as possible on everything but its own behavior.

  11. How many dumb fucks paid to give their DNA to

    1. Enough of your relatives (mostly younger ones) to make your involvement unnecessary – – – –

      1. Nah, my relatives know who their daddy’s are.

  12. When will they come up with mandatory DNA testing of all newborns. Now that would give you a database for all future criminals!

    1. Soon, soon ….

    2. They don’t test the DNA, they just collect it for later

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    1. Let me guess; discount DNA testing?
      Turns out your ancestors came from Alpha Centauri?

  14. Last year’s capture of the Golden State Killer was also done through DNA records found on a public database. While that is a welcome outcome, private companies like Ancestry and 23 & Me furnishing client genetic profiles en masse to authorities is indeed worrying.

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