When the San Diego police targeted black children for DNA collection without their parents' knowledge in 2016, it highlighted a critical loophole in California law. The California State Legislature recently passed a new bill, A.B. 1584, to ensure that law enforcement cannot stop-and-swab youth without either judicial approval or the consent of a parent or attorney. The bill, introduced by Assemblymember Lorena Gonzalez Fletcher, is now on Gov. Jerry Brown’s desk. EFF has strongly supported this bill from the start and now urges the governor to sign the bill into law.

DNA can reveal an extraordinary amount of private information about a person, from familial relationships to medical history to predisposition for disease. Children should not be exposed to this kind of privacy invasion without strict guidelines and the advice and consent of a parent, legal guardian, or attorney. Kids need to have an adult present who represents their interests and can help them understand both their rights and the lifelong implications of handing one’s sensitive genetic material over to law enforcement.

A.B. 1584 would require law enforcement to obtain a court order, a search warrant, or the written consent of both the minor and their parent, legal guardian, or attorney before collecting DNA. There are a few narrow exceptions, such as when DNA collection is already required under existing law. As the ACLU said in their statement of support for the bill, this is sensible, common sense legislation: “If police officers don’t have a warrant, they must not be allowed to ask a minor child to give consent to this invasion of privacy without also obtaining the consent of a parent. Common sense dictates that involving parents in these kinds of situations is a good police practice and is in the best interest of every child.”

A.B. 1584 is a direct response to abuse of existing legal protections designed to protect California kids. The legislation is needed to create a higher standard for local law enforcement when collecting DNA samples from minors.

In San Diego, as Voice of San Diego reported, law enforcement has taken advantage of loopholes in existing law and targeted black children for unlawful DNA collection. The San Diego Police Department instituted a policy of collecting samples from minors for “investigative purposes” based on a signed consent form that was used for both minors and adults alike, without any parental notification or consent. In at least one case, police stopped a group of kids who were walking through a park after leaving a basketball game at a rec center and asked each to sign a form “consenting” to a cheek swab. The ACLU has sued SDPD over the incident.

California's existing DNA collection law, Proposition 69, attempts to place limitations on when law enforcement can collect DNA from kids, but SDPD found a gaping loophole in the law and crafted a policy to take advantage of that loophole. Under Proposition 69, law enforcement can collect DNA from minors only in extremely limited circumstances. That includes after a youth is convicted or pleads guilty to a felony, or if they are required to register as a sex offender. But here's the loophole: this only applies to DNA that law enforcement seizes for inclusion in statewide or federal databases. That means local police departments have been able to maintain local databases not subject to these strict limitations.

A.B. 1584 will fix this loophole by requiring law enforcement to obtain a court order, a search warrant, or the written consent of both the minor and their parent, legal guardian, or attorney before collecting DNA directly from the minor. In cases where law enforcement collects a minor’s DNA with proper written consent, A.B. 1584 also requires law enforcement to provide kids with a form for requesting expungement of their DNA sample. Police must make reasonable efforts to promptly comply with such a request. Police must also automatically expunge after two years any voluntary sample collected from a minor if the sample doesn’t implicate the minor as a suspect in a criminal offense.

We urge Governor Brown to take a stand for California’s kids and sign A.B. 1584 into law.