DNA can reveal an extraordinary amount of private information about you, including familial relationships, medical history, predisposition for disease, and possibly even behavioral tendencies and sexual orientation. While DNA testing in a criminal context has some benefits—such as supporting innocence claims—the mass, suspicionless collection, testing, and storing of genetic material from large populations creates a danger for privacy that only grows with each new scientific discovery in the field of genomics. In this post, EFF Senior Staff Attorney Jennifer Lynch discusses state and federal cases that addressed DNA collection in 2014, following the Supreme Court’s landmark ruling in Maryland v. King.

2014 was a banner year for DNA cases. In the wake of Maryland v. King—the 2013 U.S. Supreme Court case upholding warrantless, suspicionless DNA collection from arrestees under Maryland state law—the constitutionality of DNA collection in the criminal context has continued to present challenging issues for courts.

Many of the courts that addressed DNA collection in 2014 followed the Supreme Court’s reasoning in King and held that DNA profiling upon arrest is a means of “identification” because it might help law enforcement to learn about a person’s past criminal behavior (read what we think of that analysis here). For example, in Haskell v. Harris, the Ninth Circuit Court of Appeals reviewed a challenge to California’s DNA collection law, which requires DNA collection from all individuals arrested for a felony, and upheld the statute’s constitutionality in light of King. And in State v. Raynor, the Maryland high court went one step further than both King and Haskell to uphold warrantless DNA collection from someone who hadn’t even been arrested for a crime. Glenn Raynor voluntarily came to the station to answer questions in a rape case, and after he refused to provide a DNA sample, the cops extracted DNA without his consent from tissue he left behind on a chair.

However, late in 2014, in People v. Buza, the California Court of Appeal refused to follow this path. Instead, it held that California’s DNA Act (the same statute the Ninth Circuit addressed in Haskell), “unreasonably intrudes such arrestees’ expectation of privacy” and therefore violates the search and seizure provision of the California Constitution, California’s equivalent to the Fourth Amendment. Similarly, earlier in 2014, the Vermont Supreme Court held in State v. Medina, that Vermont’s law mandating DNA collection and analysis from anyone arraigned for a felony after a probable cause determination violated the Vermont state Constitution.

Although Maryland v. King appeared to create a blanket rule that DNA collection from arrestees is always constitutional under the Fourth Amendment, the Buza court left open the possibility that DNA collection statutes could violate the federal as well as state constitution. The court highlights key differences between California’s law and Maryland’s (which the Supreme Court upheld in King) that greatly increase the law’s impact on privacy. These include:

California’s law applies to any person arrested for a felony, while Maryland’s only applies to arrests for burglary or a crime of violence;

person arrested for a felony, while Maryland’s only applies to arrests for burglary or a crime of violence; California requires DNA collection and processing immediately after arrest, while Maryland does not require collection until after a judge makes a probable cause determination and the person arrested is charged with a qualifying crime;

California currently allows familial searches of its convicted offender database—searches designed to find a biological relative whose DNA is not in the database—and will likely allow these in the arrestee database in the future; Maryland does not allow them;

California’s process for getting DNA expunged from the database is slow, “quixotic,” nearly impossible, and unreviewable; Maryland’s law includes an automatic expungement provision.

The court found these and other differences combined to “significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment.”

Nevertheless, after quoting liberally from Scalia’s scathing dissent in King and noting that King “eviscerated protections against suspicionless searches long recognized under both the federal and state constitutions,” the Buza court seemed to acknowledge what it was up against and stepped back from deciding the case on Fourth Amendment grounds.

Instead, Buza and Medina both limited their holdings to their respective state constitutions. This was likely a strategic decision. Not only do the California and Vermont constitutions offer greater privacy protections than the Fourth Amendment, the cases can’t be appealed to the federal Supreme Court if they’re decided purely on the basis of state law. Further, other courts post-King that have addressed arrestee DNA collection statutes under the Fourth Amendment (like Raynor and Haskell), have invariably found those statutes pass constitutional muster.

Although the California Court of Appeal’s opinion is thorough and welcome, several of the facts the court focuses on may change as technology advances, and this could undermine the applicability of the court’s decision in future cases.

First, the court recognizes that, right now, DNA cannot effectively be used to “identify” someone—immediately establish who that person is—because it takes so long to process a DNA sample. While this was true in 2009, when the police tried to collect Mr. Buza’s DNA, it very likely won’t be true in the near future. As we have noted before, law enforcement and the federal government are investing more and more money into Rapid DNA analyzers—machines that can be operated by a layperson, outside a lab and can process a DNA profile in under 90 minutes. A Rapid DNA profile can be compared to the profiles already stored in a DNA database to verify a person’s identity—in only about 60 minutes more than it would take to verify identity through a fingerprint. If a court relies on the current DNA processing backlog as a reason to find collection from arrestees unconstitutional, this rationale could be obviated by the widespread use of Rapid DNA in the near future.

Second, the court notes that because a person’s name and identifying information are not stored with his DNA profile in the database, this further undermines the government’s argument that it’s using DNA for identification. However, the FBI announced at a 2014 biometrics conference that it’s exploring the possibility of using a universal identification number to link CODIS DNA profiles to data in its Next Generation Identification (NGI) biometrics database. This, combined with the use of Rapid DNA, could make it extremely easy to actually identify someone using a DNA profile.

A better basis for the constitutionality analysis is that, as both the Buza and Medina courts note, DNA collection from arrestees and arraignees not only impacts populations that have strong and recognized privacy interests—the presumed-innocent arrestees and arraignees themselves and their biological relatives—but also that “DNA contains an extensive amount of sensitive personal information beyond mere identifying information” and has the potential to reveal intensely private details about a person’s life and future. This is not trivial. In California, 20% of all people arrested for a felony—57,601 people in 2012—were never even charged with, much less convicted of a crime. And there are few rules in place in many states that protect sensitive DNA data from inappropriate use.

The Buza court notes the “stark contrast” between the Supreme Court’s analysis of privacy interests in DNA in King and its discussion of privacy interests in the data stored on our phones in Riley v. California. While in King, the Court minimized the privacy interest impacted by DNA collection, in Riley, the Court relied on the mere potential for privacy harm to hold warrantless cell phone searches unconstitutional. It’s unclear why the possible search of one’s entire genome should deserve lesser protection than the possible search of that same person’s “photographs, picture messages, text messages, Internet browsing history,” and other data on her phone.

We will continue to follow these issues. As we have done before in Buza, Haskell, U.S. v. Mitchell, U.S. v. Pool and King, we plan to file an amicus brief in support of Supreme Court review in Raynor in early 2015. And if the California Department of Justice decides to seek review in Buza, we’ll be there with a brief, too. As we noted in our brief in King, “the ‘slippery slope toward ever-expanding warrantless DNA testing’ that judges throughout the country have predicted is already upon us.” But Buza and Medina give us hope that, in Scalia’s words, King “will some day be repudiated.” We’ll be there to encourage courts to do just that.