California's law requiring the authorities to take a DNA sample from every person arrested on felony accusations was challenged in federal court Wednesday as an unconstitutional privacy breach.

A lawsuit (.pdf), filed by the American Civil Liberties Union on behalf of two Californians who were arrested and released, seeks to overturn a voter-approved law that became effective this year. Proposition 69 requires detainees to provide a saliva or sometimes a blood sample upon felony arrest. The sample is stored in state and FBI databases, even if the arrested person is never charged or convicted of a crime.

The challenge, if successful, threatens to derail similar laws in other states. According to DNAResource.com, 10 other states have such statutes. They are Alabama, Alaska, Colorado, Florida, Kansas, Louisiana, North Dakota, South Carolina, South Dakota and Vermont.

The San Francisco federal case argues Proposition 69 (.pdf) "dramatically expanded the scope of mandatory, suspicionless, and warrantless seizure and testing of DNA in California." What's more, the lawsuit cites California Justice Department figures showing that of the 332,000 people arrested for felonies in 2007, 101,000 weren't convicted of any crime.

The challenge comes as authorities struggle to keep up with the flood of DNA samples collected under the law. Some 53,000 samples from California have yet to enter the state's database – a backlog comprised, in part, of DNA from people who have not been convicted of a crime. The FBI has about 293,000 more to fill its backlog, according to ProPublica.

Wednesday's lawsuit does not challenge DNA sampling for convicted felons or for those required under a court order. Rather, the case challenges "the mass, programmatic DNA testing of hundreds of thousands of persons – persons not convicted or who are otherwise not under supervision of the criminal justice system – as to whom the long-recognized constitutional prerequisites to such searches and seizures have been established."

The ACLU says DNA sampling is different from the compulsory fingerprinting upon arrest that has been standard practice in the U.S. for decades. A fingerprint, for example, reveals nothing more than a person's identity. But much can be learned from a DNA sample, which codes a person's family ties, some health risks, and, according to some, can predict a propensity for violence.

What's more, in California the authorities are allowed to conduct so-called "familial searching." That is when a genetic sample does not directly match another, so authorities start investigating people with closely matched DNA in hopes of finding leads to the perpetrator.

"Regarding fingerprinting, the U.S. Supreme Court has said for more than 30 years that it is not a search," Michael Risher, an ACLU attorney on the case, said in a telephone interview. "But DNA, the method of taking it, is an invasion of our body. The more significant the invasion, the more justification the government needs."

The courts have already upheld DNA sampling of convicted felons based on the theory that the convicted have fewer privacy rights. Still, the U.S. Supreme Court has held that when conducting intrusions of the body during an investigation, the police need so-called "exigent circumstances" or a warrant. That alcohol evaporates in the blood stream is the exigent circumstance to draw blood from a suspected drunk driver.

"Our position is before you take somebody's genetic information, you need either a warrant or that person needs to be convicted of a felony with all the procedural protections anybody gets when you are charged and tried with a felony," the ACLU's Risher said.

So far, the courts have never squarely addressed the constitutionality of the DNA law at issue in this case, according to a congressional study.

The plaintiffs include an Oakland woman whose DNA was taken after she was arrested during a war protest in San Francisco earlier this year. Elizabeth Aida Haskell was never charged.

"Now my genetic information is stored indefinitely in a government database, simply because I was exercising my right to speak out," she said in a statement.

A California attorney general memo (.pdf) requires the sample be taken at booking or soon thereafter.

The other plaintiff is Reginald Ento, arrested in Sacramento on accusations of being in possession of stolen cameras. A DNA sample was taken without a warrant. He, too, was never charged.

The law in question allows those not convicted of a felony to petition to have their DNA removed from the database. Petitioners don't become eligible until the statute of limitations runs on the crime for which they were arrested – which is often at least three years. Prosecutors, however, have veto rights to a petition. The lawsuit also says judges have "unreviewable" discretion to deny a petition.

Photo: hibiotech

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