Although I agree with the EFF, I question the legal argument, and whether or not the case will be in their favor.
(1) Although DNA should be protected in the sense the government cannot take it from you, without a warrant (or claims your a terrorist). It's difficult to argue that if some hair falls off my head in public, should it not be considered "fair game"? Picking up papers out of the trash has always been fair game for law enforcement, so why should the hair be different?
(2) Unreasonable search and seizure is relative, it's not reasonable to pluck a hair off someones head. The same way you cannot go through someones office without reason. However, if someone disregards the hair, then it does seem reasonable to take the hair, because it is not invading a persons time/space/property/anything.
(3) It is a powerful tool to fight illegal activity. I have trouble believing a judge doesn't/wont (to some point) empathize with this and have a slight bias.
I find mass DNA collection very scary, but I don't know if this is fully valid or winnable case.
The difference between shedding of hair and skin and throwing away paper is a question of intention and ability. I could choose to take more care with the paper, but avoiding shedding any DNA is basically impossible. Compare it with new x-ray/radar/EM techniques police can use to eavesdrop from miles away or even view you through walls, or read what you're typing or viewing on your various screens--there's basically no way to avoid transmitting such information into the world. Should police be able to gather it without going to a judge?
You can't help revealing your whereabouts in public places by reflecting photons off your face or your license plate, and it is legal for police to photograph and record you in a public place without going to a judge.
Right; but dna reveals more than who you are. It reveals details of your health, abilities and heredity. That can be considered more personal/private than just your name and address.
Personally I regard the issue as moot; dna identification is here and not going away.
I'm not saying you are wrong as to the law, but if such a reasonable expectation does not exist then it's permissible for arbitrary third parties to analyze DNA from i.e. a discarded strand of hair - not only law enforcement.
Under this standard, would police be allowed to explore the private (?) hair, DNA, etc. evidence left behind at crime scenes?
I don't really like the idea of tricking someone into giving a DNA sample, but I'm pretty sure it's been upheld before (they searched someone's garbage, IIRC) and this wasn't a massive dragnet, it was a trap to get DNA from one person who they must have suspected rather strongly given how they trapped them.
No under this standard they can collect at crime scenes so long as they have a warrant to do so. They would be prohibited only from doing searches without a valid warrant meaning the warrant must be reasonable, specific, and signed by a judge. Searching a crime scene is both reasonable and specific, and getting a warrant is easier then ever today with most states adopting electronic warrant systems.
Because it is unreasonable to avoid. A reasonable person who wants to maintain privacy has the ability to avoid throwing things they don't want to be found out. A reasonable person who wants to maintain privacy must be unreasonable in order to prevent his or her DNA from being all over the place.
IANAL, but I feel like the 4th amendment needs to be interpreted in light of the difficulty of obtaining private information on a person at the time, and the ease of obtaining it now. At the time, the 4th amendment pretty much prevented law enforcement from getting any information on you that you didn't broadcast (absent a warrant). I think it is reasonable to use that standard.
> (2) Unreasonable search and seizure is relative...invading a persons time/space/property/anything.
But it is invading a persons privacy. Their DNA contains information that is as private to them as what they do in their home with the blinds drawn.
I don't think one can expect privacy in a public place; the police can photograph you walking through a public park without a warrant. In fact, anyone has the right to photograph you in a public place.
It seems to me that there is at least an argument that dropping your DNA in a public park is not very different.
You can absolutely expect certain kinds of privacy in a public space. (Like with up-skirt photos, for instance?) The question that needs to be resolved is if collecting DNA violates people's privacy in an unreasonable manner. I think this really falls back on the question of what harm you can do to someone with their DNA.
The EFF apparently feels that you could do quite a bit of harm with it, if not today, then very soon. To me, it seems just about as bad as stalking someone.
I agree with some of your points, except that the initial absence of probable cause makes this case worthwhile.
The reason to defend constitutional rights in this context is about what the government 'could' do, not what they 'should' do. As an example, I think very few people would argue about the plausible deniability of a person found with a dead body in their trunk and yet there are cases arguing about whether or not similar 'evidence' should be considered if it was discovered due to a traffic stop without cause or an improperly served search warrant, etc. The reason is not because constitutional rights advocates want the possibly guilty to go free and not because we don't want law enforcement to be able to do their jobs, but because we don't want abuses to become the norm rather than the exception.
If the courts decide that the DNA of an individual can be tested without a warrant or even probable cause, then they could just begin testing everyone that had even passing contact with a victim, a neighborhood street, a school, an entire city.
At the most extreme, the FBI could then begin to secretly collect our DNA when we go to any federal office and eventually have an entire database they can search for a match to any random DNA found at a crime scene. You might try to compare this to fingerprint databases, but those are databases of people where they was legal cause to require collection of their prints--convicted criminals and law enforcement officials are two examples. And remember that neither fingerprints nor DNA are definitive; labs make mistakes, samples are mishandled, etc.
If there was no fear that evidence could be thrown out because of how it was collected, then law enforcement would just proceed unhindered in any investigation and worry about consequences later when they got their arrest.
If you are interviewed at a police station, how is that not invading a persons time/space/property/anything if the intent is to steal some dna left on the chair? It sounds to me as using subterfuge in order to take someones DNA, and subterfuge should not allow the police to circumvent the law. That way makes the law meaningless, and that surely can't be the intent of the court.
Either give them direct permission to take DNA without cause, or make it illegal regardless of what loop whole they can think up.
If the DNA is just used for uniqueness identification like finger prints then I don't see the argument.
People have learned to wear gloves in crimes to avoid finger print collections. With DNA, they will need hair nets, exfoliate and more skin coverage to avoid detection.
I don't see how this would be different from lifting fingerprints from a discarded cup. Does that happen in real life or is that just a movie/tv thing?
But law enforcement is not using the encoded information, they are just taking a unique pattern from the information and using it for identification purposes.
I could for sure envision a situation where they use the encoded information. Let's say they find that the sample comes from a person who is predisposed to a heart condition and they already have a description putting him in the 40-50 age range. That's a pretty significant piece of information that can help narrow down a search or canvass, especially if there's any other meta data they can correlate to the crime.
No, I would not consider it unreasonable but a lot of people probably would. And I don't know enough about inferring future health conditions from DNA alone, but I meant it as an example for a future possibility. If anyone does know, exactly, what you can infer from DNA alone and how that would be extremely helpful.
This was a rape case.
Leaving fingerprints or even DNA on a bloody knife can only confirm you picked up the knife, and therefore that you were present at the scene. In this case the DNA identified him as the perpetrator of the crime.
IMHO the EFF have chosen the wrong case to fight here.
I'm not sure there is any point in making a distinction, because while the DNA identifies him as the perpetrator, it also ties him to the crime scene.
Therefore, if we made a rule that evidence that ties you to a crime scene (such as fingerprints) can be collected without a warrant, but evidence that identifies you as the perpetrator needs a warrant, couldn't the police simply collect the DNA from the chair without a warrant, and only use the DNA fromthatsample to tie him the crime scene?
Then, once he's tied to the crime scene, that could be used to justify a warrant to collect a direct DNA sample directly from him, and then they could use that second sample to identify him as the perpetrator?
I agree that this makes the EFF look very bad. Persecuting rape is difficult enough as it is. I can't figure out any hypothetical example where this kind of identification testing could be abused without literally fabricating all sorts of additional evidence.
And if the rapist in this case was questioned as a subject, the police could have gotten a warrant for the DNA anyway.
Lawyers can and do choose which cases will be set for precedent all the time. It's somewhat difficult to ensure that your case is the only one going after the said precedent at the right time, but just about any time a new law is passed that people object to, lawyers begin shopping for ideal candidates and then determining the best ways for them to break the law in the least damaging way, and in the best possible district to get the law deemed unconstitutional.
This typically happens with civil rights cases, and it's worth noting that there are certain legal groups that are better at it than others -- the Second Amendment Foundation is exceptional, and it's a large part of why their win record is so good.
Another difference between lifting fingerprints and lifting DNA is that the genetic markings can be studied to give further insight into the person - for example medical, removing more of their privacy, which without probable cause, is in breach of the 4th amendment.
A fingerprint however, if found in public and considered fair game tells you one thing - that you were there, or someone reasonably competent in lifting and transferring fingerprints has a copy of your fingerprint and is attempting to put you in the spotlight. It doesn't tell the discoverer of your print anything further about you.
Testing DNA for identification purposes at best establishes identity and a small part of your family tree. Not even the latter so much, because your family would have to be in the system, too. And your family relationships should be something police is entitled to find out.
People have a reasonable expectation of privacy. This means that the things they make public should be known to them to be made public. If I didn't intend to leave my DNA, then you shouldn't be able to use it unless you're investigating a related crime.
If I accidentally left my credit card on the ground, you would not be legally allowed to use it. I would have to have left it there on purpose.
The 'reasonable' is not about acquisition of information, but about the knowledge of the source. For instance, it is unreasonable for me to expect privacy in the trash bin, but not unreasonable for me to expect privacy in the bed of my truck.
Yea the EFF doesn't really have a very compelling argument here.
I'm not even sure what the downside is in a policy sense. The only way this has any effect on anyone's lives is if it is used to catch you for a crime you committed.
Not so fast. Often DNA can identify that you are likely related to someone who committed a crime. This can lead to interesting results in cases where the relationship is not known.
For example consider the case where a couple with fertility problems used a sperm donor. The child is never told that this happened. Then police identify that the crime was likely committed by someone who shares 1/4 of their DNA with the child. In other words that child's grandchild, grandparent, half-sibling, aunt or uncle. You can imagine the sudden disruption when the police show up?
It gets even worse if the child was the result of an affair. Or if the person who committed the crime was. Or if the child was in some other way the result of a family secret.
Oh right, and it gets more problematic. The traced DNA is not necessarily the criminal's. You find hair at the crime scene, but maybe it was present before the crime. The hair is a lead, it is not proof.
These cases are common enough that schools long ago learned not to use people's families for demonstration of how genes work in biology classes. Heck, they are common enough that I personally know people that I know are in these kinds of situations. And you have to get to know someone pretty well before you find out about stuff like this.
And now we're going to have law enforcement randomly exposing private situations like this. Maybe we as a society consider this worthwhile. But there is no question that privacy will be invaded here.
Clearly there is some potential effect, so yea you are right. But this is pretty tenuous, rare, and this sort of risk comes with any police investigation.
If the police see a red BMW leave a scene, it might accidentally cause a person with a red BMW to be falsely investigated.
Human eyewitness evidence is even worse.
So yea, while there is some effect, it is no more than what we already accept.
Please explain why these are poor arguments to rebut the claim, The only way this has any effect on anyone's lives is if it is used to catch you for a crime you committed.
I think you're describing questions that, before DNA analysis, were explored through traditional police investigations all the same. It would be just as disruptive if a detective figured out that the suspect is the result of an affair through tracing birth certificates and interviewing doctors and nurses as by matching DNA samples.
Additionally, your hypothetical also assumes that the person(s) related to the supposed subject have their DNA on file or are somehow compelled to provide it as evidence - precluding some kind of existing database, or a kind of chicken|egg situation. That is out of scope of this argument.
Additionally, your hypothetical also assumes that the person(s) related to the supposed subject have their DNA on file or are somehow compelled to provide it as evidence - precluding some kind of existing database, or a kind of chicken|egg situation. That is out of scope of this argument.
That is actually a very safe assumption.
As articles like http://www.pbs.org/wgbh/nova/next/body/dna-databases/ make clear, police already ARE creating DNA databases. And since there is little regulation around this right now, they are free to be creative in assembling them. For example you can get a good DNA sample from the straw used to blow into a breathalyzer. So get stopped at a routine traffic stop, your name, license plate, and DNA can go into a database. And voila, police can now match you and your relatives against crime scenes!
As technology improves and costs come down, incentives to match everyone to DNA tests will go up, not down. Heck, I remember as a child in Canada over 30 years ago having police come to my elementary school and taking everyone's fingerprints. I believe that the cause was so that if anyone went missing, they could identify us. But once that data is collected and goes into databases, it doesn't come out.
Heck, how many parents would give consent today for their 2nd graders to get a DNA test for that purpose?
Won't let me reply next-in-thread. I never said that what you describe wasn't possible, and I'm indeed aware of those instances you bring up. What I'm saying is that that is out of scope of this argument. EFF is talking about collection capabilities. Immediately jumping to the 1984 senarios hurt the overall grounding of the argument.
The point of a warrant is that a judge has decided that the needs of law enforcement override the right to privacy in this case. The point of the lawsuit is to set a precedent saying that the police cannot simply collect and analyze DNA without warrants.
Therefore if there is a demonstrable privacy issue to DNA collection and analysis, then requiring warrants is the accepted way in our legal system to balance the needs of law enforcement against people's right to privacy.
I think this is also a stretch. Fingerprint databases have existed for quite some time, and yet police are not required to get a warrant to check finger prints collected from a recovered weapon against that database, which can reveal quite a lot about the history of the person.
Fingerprints cannot tell you who a person is related to, or about their likely medical conditions. DNA can. (Though the limited set of markers used in police databases can't. But they also misuse those markers and overestimate the odds of a match. However that is a different and more complicated issue.)
Should it be fair game for me to download a movie from "some site I found it on", because I didn't take it from the studio itself?
If copyright works through "authorization", I don't see why we should accept it as natural and normal for authorities to use our fingerprints, hair, or even sperm without our permission. Speaking of the last one, I don't think it's legal for a woman to impregnate herself with a man's sperm by taking it from a used condom and without his knowledge?
Genetic material is funny. On the one hand, it's as personal and private as things can get. Your DNA is basically you. But on the other hand, it's also the most public thing about you. It's a biological equivalent of an open, unencrypted radio broadcast. You leave it absolutely everywhere all the time - you can actually imagine a mist of your genetic material floating behind you as you walk around. Dead skin cells, hair, whatever you excreted through sweat - you leave it on everything you touch or otherwise interact with, be it public or private property, or other people.
I'm having trouble reconciling those two views and developing intuitions around how we should handle it.
I've been listening to Alastair Reynolds Blue Remembered Earth and On the Steel Breeze. The notion of ubiquitous surveillance is an underlying concept, affecting how characters can behave as the plot moves forward. While it is an underlying concept, I'd love pointers to books where this concept is taken head-on.
So far, I don't see how we can avoid ending up with a "surveilled world", though it scares me to death (we don't have the benevolent AI overseer to watch it). With the progress of technology coupled with ubiquity of networks, it is going to be hard to avoid.
Other considerations aside, DNA analysis is so easy and getting so cheap, its inevitable it will be used in every facet of our lives. So learn to live with it. Or become a luddite hiding in a cave.
Even though you're at the bottom of the comments, I'm inclined to agree. In case you're interested, here's an discussion of how this trend might at least be amenable to creating unique cryptographic IDs without the need for central governance.
As a password, biometrics are notoriously inappropriate (have to use the same one for everything; can't change at will; leave it in the open all over the place). But maybe as a sort of username?
Ancient daily reader/lurker here (even far before my registration date). I want to chime in because this is my area of expertise.
Disclaimer: I stand neutral in this issue; however, DNA/law is what I currently do for a living.
While it is true on the most basic level that law enforcement do 'collect' and 'store' information about 'who we are,' 'where we come from,' and 'who we will be.' It is only true because crime labs are typically required to store samples long term (mostly because of an idea that in the future, technology in the future will provide better discriminatory power, and for quality control testing/confirmations).
Law enforcement does not process DNA samples in the way that the article suggests, in fact, the vast majority of the time (and legally, this varies state by state), crime labs only use DNA typing technologies that produce information that is limited to "identifying an individual." What this means is in the most elementary way, is that the data generated from DNA samples used in law enforcement today, only contains information equivalent to a fingerprint. DNA samples processed in crime labs (the vast majority of the time) is based on STR technologies and (again, most of the time) it is unlawful for crime labs or law enforcement agencies to use this identifying information any further than the capacity to identify the "who" which is most of the time only searched in a database of convicted offenders, detainees, sex offenders, and/or arrestees.
So no, law enforcement agencies aren't generating/processing information different in capacity to that of a fingerprint.
Is it lawful to collect a fingerprint (or in this case a STR DNA profile) without a warrant or probable cause? I think so, but in their minds searching "forensic unknowns" to a database such as CODIS (you'll have to google this) to generate investigative leads is paramount to finding unconvinced offenders.
Example: Bob is arrested in 2015 for burglary and has a history of misdemeanors the past 10 years. DNA is collected for forensic evidence of this burglary to build a case to convict him of this crime. His DNA profile is searched in CODIS and happens to hit to an unsolved rape case in 1998. His DNA profile matches that found on a vaginal swab of the rape victim. Bob will now be charged with rape in 1998, but who would have otherwise gotten off scott free for the rape if it weren't for CODIS.
I'm really not trying to stir the pot and get any vitriol but I'm genuinely curious: do organizations like the ACLU, EFF actually get things done?
There has been pretty much no change in the state of affairs with regard to NSA mass surveillance, and the same can be said for RIAA DRM technologies continually pushed forth in the mass market. Everytime I see an EFF related article here or on reddit, I just get the sense that it accomplishes nothing real. Maybe things would be different if the big tech giants started suing the agencies and the US federal government for various abuses, but even then, it wouldn't make sense for them to attempt this because of legal backlash from the US (or other more insidious forms of backlash...) All in all, it feels like quite an unwinnable struggle.
The serious answer is: very rarely they win important victories. It does happen though. Most of the time they spend their very limited resources fighting uphill battles against a government with nearly unlimited resources (and an ever expanding legal basis for their increasingly vast powers). While the EFF is trying to check the government over here, the government is over there expanding laws in their favor.
The government system of the US is now the size of Japan's entire economy fiscally. I don't see how that is ever going to be contained. There's no way to pass enough controls or restrictions to hold something that massive in place, and there's no way to afford to monitor all the restrictions even if you got them into place.
The other problem I rarely see addressed is culture. No two governments are the same. The US is an aggressive government, that is its culture (at least since WW2 or so), and that will be very, very difficult to change. Some people naively think you can trust a large government like the US Govt., as you might Sweden's government - but that ignores the fact that their cultures are drastically different.
Orgs like the ACLU and the EFF are very valuable institutions, and they're trying to do what few others are. The odds are severely stacked against them, but given the context is so extraordinarily important, it remains worth fighting for. Maybe all they can accomplish is to slow the process of rights erosion down, that too is valuable (some of course argue it'd be better to accelerate the implosion instead, rather than have a long slow erosion).
Protection from DNA collection is impossible, for the same reason the EFF wants to forbid it: We shed DNA all the time.
Currently, DNA does not contain "vast amounts of private information", and even the little amount we can get from it requires serious science and hundreds if not thousands of Dollars per sample to retrieve it. Currently it is more effective to prohibit specific abuses, like insurance tests.
In the future, DNA data will be as cheap and obvious as fingerprints, gender or body height. DNA sequencers will pick up human DNA all the time even by accident. Therefore, DNA and its information will be in plain sight, if we like it or not.
Fighting DNA collection will be a lot like fighting copyright piracy. The information is copied and distributed so easily, no way we can keep our DNA private.
Presumably we have the fourth amendment in the first place because we saw the dangers of living in a surveillance state.
Now that technology has given us multiple end-runs around the fourth amendment, it would be to our benefit to look how to preserve that original intent.
How do we ensure a proper association between the samples taken and the person in question, in particular as described in the case from the article, especially without some sort of formal framework and authorization before hand?
tl;dr - It would be a huge coincidence if you found DNA that matched the actual perpetrator despite the fact that you collected it in the course of following the wrong guy, or canvassing for DNA at random.
Usually this happens by way of other non-DNA evidence. Imagine: you pick up a hair (or swab a coffee cup, whatever) in public that you believe (but, to your point, do not know) to be from your suspect. You take it back to the lab and, sure enough, it matches your sample from the crime scene.
Now, if you know nothing about the people in the vicinity of there you picked up your test hair, and were just randomly canvassing for DNA, this might not prove much. But presumably you were following a particular person, whose hair you tried to collect because you also have other evidence against him (though probably none so strong as DNA identification). This puts you in a very different epistemic situation with respect to that hair. Now you know that you picked up a hair in an environment full of people, only one of whom was a suspect in your investigation. It so happens that this hair matches a hair from the crime scene. It is, of course, possible that you picked up an unknown person's hair, and that person just happened to be your culprit -- but it is far far more likely that the hair you got is from your suspect, since he's the only one in the area believed to have any relationship at all to the crime.
(Of course, there could be situations that confound this analysis, for example if you collect hair at the end of the day from an interview room that's been used to question a bunch of suspects in the same crime. But law enforcement will not usually be this sloppy. They are well aware of the need to positively associate a hair with a particular person.)
One possible route: conduct the interview in a room that's been thoroughly cleaned beforehand (cleaners would need to be gowned). Take a sample from the chair pre-interview, then post-interview. Keep the room tightly controlled between cleaning and the interview.
(1) Although DNA should be protected in the sense the government cannot take it from you, without a warrant (or claims your a terrorist). It's difficult to argue that if some hair falls off my head in public, should it not be considered "fair game"? Picking up papers out of the trash has always been fair game for law enforcement, so why should the hair be different?
(2) Unreasonable search and seizure is relative, it's not reasonable to pluck a hair off someones head. The same way you cannot go through someones office without reason. However, if someone disregards the hair, then it does seem reasonable to take the hair, because it is not invading a persons time/space/property/anything.
(3) It is a powerful tool to fight illegal activity. I have trouble believing a judge doesn't/wont (to some point) empathize with this and have a slight bias.
I find mass DNA collection very scary, but I don't know if this is fully valid or winnable case.