Warrantless Biometrics

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Hanni Fakhoury

EFF

Over the last few years, we’ve been battling laws that require a person arrested to give a DNA sample as part of the routine booking process. The law makes this DNA collection automatic and mandatory; law enforcement do not need a reason to collect the DNA and they can do so without a search warrant. Given the incredibly sensitive information that DNA can reveal about a person – details like a person’s medical history, predisposition to disease and even sexual orientation – government access to this information must be strictly limited. But a recent decision (PDF) by the Ninth Circuit Court of Appeals found no constitutional problems with the government’s ability to collect DNA from recent arrestees without a search warrant.

The case, Haskell v. Harris, is a lawsuit brought by the ACLU of Northern California, challenging Proposition 69, a California initiative that requires the warrantless collection of DNA from any person arrested for a felony. The four plaintiffs in Haskell were all arrested for a variety of crimes, but ultimately none were convicted of anything. Nonetheless, at the time of their bookings, each person was required to provide a DNA sample to the police who, as required by California law, placed the DNA sample into CODIS, a DNA database maintained by the federal government.

Every state participates in CODIS, which allows law enforcement the ability to search DNA through the database. Almost all of the DNA in CODIS comes from the criminal justice system, with the federal government and 47 states collecting DNA from convicted felons, and 22 states and the federal government collecting DNA from individuals merely arrested for a crime. Once a DNA sample is collected, state and federal law enforcement can search CODIS for matches to other individuals or crime scenes already contained in CODIS. As of January 2012, CODIS had over 10 million DNA profiles in its system, with over 17% of those samples coming from the state of California.

The ACLU brought suit, challenging the warrantless collection and search of DNA from mere arrestees as violating the Fourth Amendment’s prohibition against unreasonable searches and seizures. A three judge panel of the Ninth Circuit Court of Appeals in San Francisco rejected the challenge, finding the warrantless search reasonable under the Fourth Amendment. The ACLU asked the entire Ninth Circuit to rehear the case, and we’re supporting their cause with an amicus brief (pdf) of our own.

As we explain in our brief, a blanket, suspicionless collection of DNA for the sole purpose of law enforcement investigation cannot survive Fourth Amendment scrutiny. As DNA collection becomes cheaper, it also becomes more widespread. The collection of DNA from individuals in the criminal justice system exemplifies this risk. When the federal DNA Act that Prop 69 is modeled after was first enacted, it required DNA collection from individuals convicted of violent crimes. It was then expanded to include individuals convicted of any felony, violent or not, and now requires DNA collection from any individual merely arrested (not convicted) of a crime. California law has followed the same expansive course. And because a person who is not yet convicted of a crime is presumed innocent until proven guilty, Prop 69 essentially collects DNA from innocent people. The only way to avoid this slippery slope towards a future where everyone’s DNA is collected by the government is by having courts insist on Fourth Amendment protection for DNA, and authorizing its collection only with a search warrant. As Chief Judge Kozinski of the Ninth Circuit has previously written (PDF) regarding warrantless DNA collection, “the time to put the cork back in the brass bottle is now—before the genie escapes.”

Attached Documents: Filed Haskell Amicus Brief.pdf

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