How Post-Arrest DNA Swabs Threaten Innocent People's Privacy

Most states collect DNA from felony arrestees pretrial. They should need a warrant to do so.

Unless you're living under a rock—or just don't watch TV—you're probably familiar with the mugshot and fingerprint steps of booking. Fewer are aware of the latest addition: the mouth swab.

On Friday, Herbert Stanback pleaded guilty to the hit-and-run that killed Ruth Buchanan 32 years ago. Investigators with the Charlotte-Mecklenburg Police Department identified Stanback by running DNA collected from a joint found in the hit-and-run vehicle through the Combined DNA Index System (CODIS). The FBI describes CODIS as a tool that enables "federal, state, and local forensic laboratories to exchange and compare DNA profiles electronically, thereby linking serial violent crimes to each other and to known offenders."

The term "known offenders" might be a bit misleading. The DNA Fingerprint Act of 2005 requires all adults arrested—not convicted—of a federal crime to provide a DNA sample. Stanback's genetic profile was available for comparison because he was previously incarcerated for larceny as a habitual felon in 2004, which placed his DNA in the National DNA Index System (NDIS), the national component of CODIS.

Requiring convicted felons to forfeit their identifying genetic information is hard to object to—convicted felons already lose certain privacy and liberties. But those merely suspected of a crime are presumed innocent until proven otherwise. Entering their DNA into a federal database for comparison with crime scene samples challenges this presumption of innocence. 

The Supreme Court disagrees. In 2013, the Court ruled in Maryland v. King that taking DNA upon arrest does not violate the Fourth Amendment's protection against unreasonable searches and seizures. Since then, warrantless DNA collection and comparison has been widely practiced, much to the chagrin of civil liberties groups such as the American Civil Liberties Union.

According to data from the National Conference of State Legislatures, 20 states do not collect DNA upon any arrest. Of the remaining 30 states that do, most limit this collection to felony arrests, while eight also include specific misdemeanors. Even among felony arrests, the relevance of collecting DNA can vary widely: using DNA from a marijuana trafficking arrest to compare against samples from the crime scene of a serial murder is unjustifiable. 

In contrast to fingerprints and mugshots, "genetic information is typically regarded as particularly sensitive data since it's impossible to change," says Jennifer Huddleston, senior fellow in technology policy at the Cato Institute. Given the sensitivity and immutability of DNA, Huddleston notes that "it's important to ask: Are there appropriate cybersecurity precautions in place to protect this information from hackers or other bad actors?"

The DNA Justice Project downplays these privacy concerns, stating that CODIS profiles only contain "20 base pairs or markers out of over 3 billion on the human genome," which "provide no value for disease association, genetic predisposition or physical characteristics." Moreover, CODIS only stores DNA profiles; it does not store "names or other personal identifiers of the offenders, arrestees, or detainees." Therefore, the potential for medical and demographic discrimination—even if all the data were leaked—is minimal. 

Patrick Eddington, senior fellow in homeland security and civil liberties at the Cato Institute, disagrees with the DNA Justice Project's assessment. Eddington says "governments should not be allowed to collect and permanently store sensitive and unique biological or biometric data on citizens not guilty of a crime. To allow it is to open the door not just to potential government misuse of the data, but to create a digital 'honeypot' for hackers to target and then engage in identity theft."

Resolving cold cases is laudable; collecting, comparing, and retaining DNA from mere suspects is questionable at best and unconstitutional at worst.

Comments

[Minadin]

It could be worse, I was the victim of an armed robbery at a convenience store several years back, and the local cops swabbed both me and the clerk (aka 'the 2 victims') to 'eliminate us from evidence'. Fingerprinted too.

[Rossami]

If they followed the law, they were forbidden from putting that information into CODIS. In other words, the genetic data gets used to clear you from that one case then is destroyed.

But that's a really big 'if'.

[Longtobefree]

Yeah, right.
And the democrats fully support the second amendment.

[questioner7]

What about all the wrongly convicted who could be freed by identifying the real culprit through DNA? This protects the innocent.

[Bipedal Humanoid]

Need more Kool Aid?

[Stuck in California]

Small quibble with how this article is framed:

Threaten Innocent People’s Privacy

The main example is not "innocent people." It's a serial offender who committed a hit and run.

This would have more impact if actual examples of abuse of innocents could be found. Or, at very least, less nebulous hypotheticals. Dig into libertarian issues, find places where the FBI saw a man and found a crime to charge him with, or someone underwent false arrest based on faulty biometric data, or some other instance where a leak of sensitive data caused innocent people issues.

When you have a former FBI director saying "Americans have no right to privacy" and demanding back door access to any and all communications and records (that was James Comey), then you know privacy is important to individual liberty. Framing it more strongly does us all a service.

[AT]

Reason does that constantly. They pick the single worst illustrative cases of the "harm" they're ringing the bell about.

Which has been super in vogue over the last decade ago, since we started making martyrs out of thugs and career criminals (like Michael Ferguson, and Trayvon Whatever, and the Patron Saint of Fentanyl Abuse) who meet an unfortunate end at the hands of the law enforcement they're often actively resisting.

[Stuck in California]

This one may have been the article was written and they headline attached to it just sucked.

It's not necessarily a bad article. Shows several viewpoints, law enforcement catching people, possible data leaks, people who don't give a shit about data leaks, etc.

It's just not an appropriate headline for the content. And, frankly, I'm on the "privacy is good" side so I'd rather have as many examples of privacy abuses as possible published. I'll admit that much personal bias.

[mad.casual]

I disagree slightly. One thing that is *massively* elided here is that CODIS doesn't, or didn't, just store a copy of your entire genome.

A relatively massive proportion of human genomic DNA is either complete junk that's not even uniquely identifiable or so essential and conserved that, again, it's not uniquely identifiable. It would be pointless to store it. Even the parts that are unique are relatively large and the uniqueness not directly correlated to a specific sequence.

Moreover, as the article points out, in some states they don't collect it at all and in others it's simply on arrest. Do you have a right to security of your persons and effects? Absolutely. Does that right extend even beyond arrest anywhere and everywhere under all circumstances? WTF are you smoking? If police arrest you because you're covered in blood, fleeing the crime scene and someone thinks they saw you putting a confession or a gambling marker or something you took off the suspect in your pocket do they have to get a warrant first? Fuck off. Should it be a federal-level mandate that all state and local cops everywhere have to do that? Even if some poor local cops are looking for specifically someone behaving according to a specific MO? Fuck off globalist totalitarian slaver.

[Zeb]

It's not a compelling example, but I think the point stands. Innoccent people do get arrested and collecting their DNA seems like a 4th and 5th amendment problem since you're compelling them to provide potentially incriminating evidence with no warrant.

[AT]

Entering their DNA into a federal database for comparison with crime scene samples challenges this presumption of innocence. The Supreme Court disagrees.

So do I. I get where you're trying to go with this, but I think the wheels fall off when you get to this point. Mainly because it's a gross misunderstanding of what the presumption of innocence is.

The presumption of innocence is the legal principle that you are innocent until proven guilty, as opposed to guilty until proven innocent - and it doesn't come into play (at least, not the way you're talking about it) at the investigatory stage the way a 4A, 5A, or 6A protection would. By your argument, even entering their name into a database would be "violative" of the presumption. And that's absurd.

Having a DNA database is an investigatory tool. Collecting DNA evidence is an investigative act. It no more so challenges the presumption of innocence than having a database of sole treads for every boot, shoe, and sandal on the market in America - which, incidentally, is a thing they have. And I wouldn't be surprised in the least if, when suspects are brought in for questioning, the cops surreptitiously capture the tread by having them unknowingly walk on a certain area. (You've likely seen a version of something like this in pop culture. Think the scene in a film where a suspect, who may not even know he's a suspect, they're interviewing is offered a coffee or soda, and then they bag the container afterwards. Same concept.)

That's not denying the presumption of innocence. That's collecting evidence that will justify charging or eliminating a suspect.

And the better we get as a society at forensic science, the more expansive these databases become, and the easier it gets to populate them (especially in a culture that has happily traded every vestige of privacy and anonymity away for convenience, luxury, and entertainment).

So, y'know, you can fight the tide all you want, but this is all here to stay. And if you want to avoid it, the best advice you can and should offer is: minimize your interactions with the State.

Which I know is a tough pill for Reason staff to swallow because of how much they seem to genuinely enjoy the existence and engaging in of crime.

[Bubba Jones]

The primary concern with these databases is that it could generate false positives. That they could be used for a fishing expedition. I don't think we've seen that, yet.

It's not an existential concern, to me, that someone who actually committed a crime was found and convicted based on DNA collected during a prior arrest.

[Vernon Depner]

Juries have the false impression, probably from television crime dramas, that DNA evidence is infallible and conclusive. Jurors need to always consider the totality of the evidence presented and not take the opinion of a lab tech as gospel.

[Vernon Depner]

Couldn't the same be said about fingerprinting?

[Zeb]

You make a good point about presumption of innocence. I agree that really doesn't come into play here. The real issue I think is that a warrant ought to be required to seize a piece of someone's body (even if it's a few cheek cells).

[Mickey Rat]

"In contrast to fingerprints and mugshots, "genetic information is typically regarded as particularly sensitive data since it's impossible to change," says Jennifer Huddleston,..."

I would think that at least half the argument is lost by the fact that fingerprints and mugshots are acceptable. Where is it established as a principle that genetic information in law that DNA samples are substantially different from fingerprints? The fact that SCOTUS does not seem to buy into that argument says this is already settled law. That it is on the ACLU's want list does not mean that it is a sensible argument.

[Stuck in California]

The "Impossible to change" argument really does go out the window with fingerprints.

I suppose you could cut your fingers off or something.

I could see an argument for fingerprints USED to be the sort of thing that was difficult to share. You couldn't just get someone's print and have the computer run every fingerprint database in the world to see if you get a match from every crime scene, looking for something to investigate, and precedent was set in those days.

Not unlike wire tapping precedent was set in days when you had to actually go to a specific wire and tap it, then listen to the conversations. Not like being able to record every text message and conversation and have some computer AI set up to parse it for you. Not to mention the absolute treasure trove of other personal information law enforcement can gather from cell phone data.

But instead it's a specious argument about one immutable trait being different than another immutable trait.

[mad.casual]

The “Impossible to change” argument really does go out the window with fingerprints.

I was going to say similar save one major caveat: DNA is otherwise useful and not strictly personal. That is, your fingerprint doesn’t tell people whether you have a lipid metabolism disorder and that you got it from your father or whatever. The CODIS alleles, which actually get stored, don’t *exactly* have this information either but enough to say that DNA isn’t some purely abstract UUID more like fingerprints are.

The funny thing is, whatever retarded flunkies at Cato or the ACLU making the argument Jack cites don’t actually make *this* argument which is unique to DNA among the three.

It’s almost like they don’t really care about the issue, it’s just a wedge that they need to apply to keep some topic like “All forensic science is junk science.” or “#DefundThePolice” from slipping from the back burner to off the stove entirely. To show people at some of the cocktail parties that are on the social decline some bona fides that they haven’t given up the fight either.

[Mickey Rat]

I also remember about 15 to 20 years ago when Reason was pushing DNA evidence as best objective evidence in murder and assault cases, as opposed to evidence like eyewitness accounts. I suspect the mandatory DNA collection is a consequence of being successful in making that case.

[Mickey Rat]

You can temporarily mar your fingerprints with an abrasive, but that does not feel very good, but unless you do serious damage to the deeper skin layers, fingerprints do come back.

[mad.casual]

serious damage to the deeper skin layers, fingerprints do come back

Even at this, you're literally talking about debilitatingly scarring your fingertips and scars are about as frequently exceptional, if not unique, identifiers.

[Zeb]

I've sanded off fingerprints on several occasions (not deliberately). They come back pretty cleanly if you don't go too deep.

[Don't look at me!]

Sarc tells us that they wouldn’t arrest you if you weren’t guilty.

[Zeb]

Have you ever seen his comments about police? I'm pretty sure he believes the exact opposite.

[mad.casual]

Reason August 2024:

How Post-Arrest DNA Swabs Threaten Innocent People's Privacy
Most states collect DNA from felony arrestees pretrial. They should need a warrant to do so.
Jack Nicastro | 8.28.2024 5:00 PM

Reason October 2024:

States Are Banning This DIY Rape Kit
This company made a product to serve victims who don't want to go to police right after a sexual assault. Some politicians want to ban it.
Elizabeth Nolan Brown | Coming: From the October 2024 issue

The only people who should have a right to collect your DNA are people who actively and capriciously intend to file sexual assault charges against you.