In 26 states, police can collect DNA samples from criminal suspects upon arrest — before they are convicted of a crime. Prosecutors and police say it’s a critical tool for cracking cold cases. But the Maryland Court of Appeals recently ruled that such practices violate Fourth Amendment protections against unreasonable search and seizures. We examine the Maryland case, and ask whether new DNA collection and analysis techniques are challenging our expectations of privacy.

Guests

  • Stephen B. Mercer Chief Attorney, Forensics Division, Maryland Office of the Public Defender
  • Jeffrey Rosen Professor of Law, George Washington University Law School; Legal Affairs Editor, The New Republic

Transcript

  • 12:06:42

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. It's a complex case that boils down to a simple question: What's the difference between a fingerprint and a DNA swab? For three years, police in Maryland have collected DNA from people arrested but not convicted of certain violent crimes, like rape and murder.

  • 12:07:19

    MR. KOJO NNAMDIHowever, last month, Maryland's highest court ordered them to stop. In a 5-2 decision, the court said the practice violates constitutional protections against unreasonable search and seizure, reversing a life sentence against a convicted rapist. Prosecutors say Maryland's DNA law is a powerful tool, helping them identify dangerous criminals and to close cold cases that a DNA swab is no different than a fingerprint.

  • 12:07:45

    MR. KOJO NNAMDIBut critics say new DNA applications are raising troubling questions about privacy and genetic surveillance. Joining us in studio to have a conversation about this is Jeffrey Rosen. He's a professor of law at George Washington University Law School and legal affairs editor at The New Republic. Jeffrey Rosen, thank you for joining us.

  • 12:08:03

    PROF. JEFFREY ROSENGreat to be here.

  • 12:08:04

    NNAMDIAlso with us is Stephen B. Mercer. He's chief attorney in the Forensics Division in the Maryland Office of the Public Defender. Stephen Mercer, thank you for joining us.

  • 12:08:12

    MR. STEPHEN B. MERCERGood afternoon, Kojo. Thank you.

  • 12:08:14

    NNAMDIIt's a conversation that you too can join by calling 800-433-8850. Should police be able to collect DNA samples from people accused but not convicted of certain crimes? 800-433-8850. Stephen, I'll start with you. Alonzo Jay King Jr. was arrested for assault in 2009. Shortly after, he was taken in custody. His cheek was swabbed by police. That DNA sample was entered into a database.

  • 12:08:40

    NNAMDIIt quickly linked him to a different crime, an unsolved rape case. King was convicted of that crime, given a life sentence. But the Maryland Court of Appeals last month overturned that sentence. Why? Why did they overturn it?

  • 12:08:53

    MERCERThere's a basic premise in our society that the police cannot collect or investigate, search or seize a person unless they have a probable cause, some objective evidence that that person has committed a crime. And in what the court of appeals recognized is that the seizure of a person's DNA and the analysis of that DNA impacts upon reasonable expectations of privacy. And when the police engage in that type of investigation, their decision has to be supported by some objective evidence of criminal wrongdoing, and that just wasn't present here.

  • 12:09:46

    NNAMDIYour own interpretation of the ruling, Jeffrey Rosen?

  • 12:09:49

    ROSENI think Stephen states it very well, and it was extremely interesting to see the court sensitive to two separate privacy interests that are implicated by the collection of DNA. First, there's the identification that takes place and the intrusion to collect the sample, and then the second is the possibility that that sample might be used not only to identify you but also to connect you with a separate crime.

  • 12:10:13

    ROSENAnd the court rejected the analogy between DNA and fingerprints. The Supreme Court has said repeatedly I can have my fingerprints and my blood sample taken when the cops stop me for a suspected traffic offense because this is not testimonial evidence. It's just physical. But the court said DNA is more than fingerprints. It can reveal our genetic history or our sex or our predispositions to disease.

  • 12:10:37

    ROSENAnd then separately, the court said it's -- the real privacy invasion is not just the collection but the use of that DNA to connect you with another crime. So it was those two reasons that led the court to say, although the Maryland courts have upheld DNA collection for arrests -- for people who are convicted of felonies, you can't do it for arrestees 'cause people who were arrested have a presumption of innocence and have a higher privacy interest than those who've been convicted.

  • 12:11:03

    NNAMDIWell, we spoke with Atty. Gen. Doug Gansler of Maryland two weeks ago, and he said he thought the concerns that were raised by civil libertarians were, in his view, overblown.

  • 12:11:13

    MERCERUpon somebody's arrest for a violent crime, that is, there's probable cause to believe that this particular individual has, indeed, committed a violent crime. Then, during the processing of that person, law enforcement can take a Q-tip and literally touch it against the inside of their cheek for a second or two and then bring it -- take it out and put it into a jar. The issue there is the court of appeals says that's an invasion of somebody's privacy. But, of course, the Supreme Court has said at the time of arrest, you can do strip searches of these people.

  • 12:11:48

    MERCERYou can certainly take blood tests of these people. You can fingerprint them. Even fingerprints are more intrusive because you get the ink on your 10 fingers for an hour or so afterward. And if you just think about what also happens when somebody is arrested, they do a full body pat-down. They can look in their -- if they're in their home, they can look around their house for private information. So this is really no different than fingerprints.

  • 12:12:11

    NNAMDIMaryland attorney general asserting his view that taking DNA is no different than fingerprints. Well, Jeff Rosen, you have already talked about some of the differences between taking a DNA swab and fingerprints. A lot of other courts have looked at cases similar to the Maryland example and come to different conclusions about the constitutionality of pre-arrest DNA collection. You heard -- or you may not have heard. I may have mentioned that Doug Gansler says he wants the U.S. Supreme Court to hear this case. Is this a question of if or when in terms of the Supreme Court?

  • 12:12:42

    ROSENWell, given the fact that the lower courts, as you suggested, are disagreeing about this question, it may be a question of when, especially because a federal court, the 3rd Circuit has upheld the collection of DNA for federal arrestees. And it -- especially if there's a disagreement on that point, the Supreme Court may take it. And who knows what the court will do?

  • 12:13:00

    ROSENOn the one hand, as the attorney general said, the court upheld earlier this year strip searches for people who are arrested of low-level traffic offenses, suggesting a lack of willingness to calibrate the intrusiveness of the search against the seriousness of the crime. On the other hand, the court unanimously rejected GPS tracking on the ground that GPS tracking over a month can reveal so much about us that we have an expectation of privacy in the whole of our movements.

  • 12:13:23

    ROSENAnd, for that reason, perhaps, you might find five or six or even more justices who would say we do have an expectation in our genetic information as well.

  • 12:13:30

    NNAMDIIn case you're just joining us, that's Jeffrey Rosen. He's a professor of law at George Washington University Law School and legal affairs editor at The New Republic. He joins us for our conversation in DNA and the future of privacy. Also with us is Stephen Mercer, chief attorney in the Forensics Division at the Maryland Office of the Public Defender. If you've got questions or comments, call us at 800-433-8850. Is DNA the 21st century fingerprint, or should we be creating new legal limits to how it's collected? 800-433-8850.

  • 12:14:03

    NNAMDIYou can send email to kojo@wamu.org, ask a question or make a comment at our website, kojoshow.org, or send us a tweet, @kojoshow. Stephen Mercer, we spoke to you three years ago when you were a vocal critic of this law while you were in private practice. Three years on, the state has a database of about 16,000 samples. Boosters say it's generated evidence that could help solve some 190 cold cases. According to the governor's office, post-arrest DNA samples have resulted in 34 convictions, with 12 pending cases, 65 arrests. But you dispute those numbers.

  • 12:14:40

    MERCERThe attorney general's numbers are a moving target. It's very unclear to what extent the arrestee expansion has resulted in a certain number of convictions. So there is a concern that the expansion of the DNA database along the lines of arrestees is actually diverting critical resources away from where resources should be directed, which is the collection, preservation and analysis of crime scene DNA. It is that type of DNA that both identifies perpetrators and clears wrongfully accused persons. So there are backlogs in that area.

  • 12:15:24

    MERCERAnd when scarce dollars are being spent on expanding the database under the simple principle that more is better, then those dollars are not available to hire more analysts, to purchase additional equipment and to have a short turnaround time for the processing of crime scene DNA evidence. Also, I think it's important to note in the clip that you played earlier of Atty. Gen. Gansler's comments, what the proponents of arrestee expansion's focus on is not the informational privacy interest at stake when a person's DNA sample is seized and indefinitely retained by the government.

  • 12:16:10

    MERCERBut they focus only on the actual collection of that DNA sample. And what is also confused is that when a person is arrested for one of the qualifying offenses, the DNA that's being collected is not being collected in connection with that offense. It's being collected so that the police can investigate that person for past crimes and to retain their DNA to have them under lifelong genetic surveillance for future crimes. That concern, that informational privacy concern is not fairly characterized by focusing only on the buccal swab as the attorney general likes to do.

  • 12:17:00

    NNAMDIWalk us through exactly how this program works. Let's say I was arrested for assault with a deadly weapon before this latest court ruling. Exactly when would I be swabbed, and what would happen to that swab after it was taken?

  • 12:17:17

    MERCERIf you're arrested for a felony crime of violence or a burglary, then, during the booking process, one of the steps is to have your DNA collected using what's called a buccal swab. It looks like a large cotton Q-tip. Then that swab is sent off to the Maryland State Police forensic lab, and it's retained there until after you have been arraigned in a court and there has been a judicial finding that the case could go forward.

  • 12:17:56

    MERCERSo what's important -- and then, once the DNA sample is analyzed by the lab, there's a DNA profile that is developed, which is put into a database. And then the police also retain the actual DNA sample, which is your entire genetic material, and they retain that indefinitely. They do not get rid of that. And this is often focused on by proponents to say that the DNA profile does not contain personal information about an individual.

  • 12:18:26

    MERCERThat's wrong. It does. A DNA profile tells who a person is related to. It tells the person's sex. It indicates their race, and it contains other medical information. Now, the extent of that medical information is subject to a robust debate right now, but there's no question that it contains a vast amount of information -- the DNA profile does -- that is not contained in a fingerprint at all.

  • 12:18:55

    NNAMDIJeffrey Rosen, Friday before last, we had Angela Alsobrooks here on "The Politics Hour." She's the state's attorney for Prince George's County, and she is a supporter of the pre-arrest DNA collection. A number of callers asked about innocent people -- those who are arrested, swabbed for their DNA, but eventually cleared of any wrongdoing. The question was what happened to their samples after they were cleared. And here's what Angela Alsobrooks said.

  • 12:19:23

    MS. ANGELA ALSOBROOKSIf you have your DNA sample collected as an arrestee...

  • 12:19:26

    MR. TOM SHERWOODOK.

  • 12:19:26

    ALSOBROOKS...and you are later exonerated, found not guilty of that crime, you can take -- your attorney can then file a request using the certified copy of that not guilty and have that evidence destroyed. And so it is not the case that if you are exonerated, the DNA remains in that database in perpetuity...

  • 12:19:47

    NNAMDIIf you do not...

  • 12:19:47

    ALSOBROOKS...or it doesn't have to.

  • 12:19:48

    NNAMDIIf you do not -- it doesn't have to remain in perpetuity. If you do nothing, it can. You have no control over what happens when it's sent to the federal government, however.

  • 12:19:56

    ALSOBROOKSNo. We do not have any control over what happens if or when it's been sent to the federal government.

  • 12:20:03

    NNAMDIThat was Angela Alsobrooks, Prince George's County states attorney. Jeffrey Rosen, what sort of constitutional questions does this raise?

  • 12:20:10

    ROSENWell, the question of what happens after it's sent to the federal government is crucial because the FBI's CODIS database, which has more than 6 million samples, is now testing DNA not only for cold hits of unsolved crimes but for familial searches. Essentially, they're looking to see -- they've got an unsolved crime, and they run a DNA test. And they find that there's a near match not to an actual suspect but someone related to the suspect.

  • 12:20:39

    ROSENAnd then, based on that, they may interview people in a particular town or even the suspect's relatives and find an unsolved crime on that basis. You see, there are huge implications to this, including ones involving racial discrimination because African-Americans, by some estimates, represent 13 percent of the U.S. population. But 40 percent of the people convicted of felonies and some scholar estimated 17 percent of African-American citizens could be identified through these familial searches as opposed to only 4 percent of the Caucasian population.

  • 12:21:10

    ROSENIn other words, if you are related to someone in the database and you're African-American, you have a much higher chance of being surveilled than if you are white. And this implication comes from the fact that the feds are doing these familial searches.

  • 12:21:24

    NNAMDIGot to take a short break. When we come back, if you have called, stay on the line. We will get to your call. We still have a few lines open. The number is 800-433-8850, if you'd like to join the conversation. Should police be able to collect DNA samples from people accused but not convicted of certain crimes? You can also go to our website, kojoshow.org, and join the conversation there. I'm Kojo Nnamdi.

  • 12:23:25

    NNAMDIWelcome back. We're talking about DNA and the future of privacy with Jeffrey Rosen. He's a professor of law at George Washington University Law School and legal affairs editor at The New Republic. Stephen Mercer is chief attorney in the Forensics Division in the Maryland Office of the Public Defender. I'll go immediately to the telephones. We will start with James in Reston, Va. James, you're on the air. Go ahead, please.

  • 12:23:48

    JAMESHi. I just wanted to say that we really should be careful going down this road, you know? Once it starts it with a convicted -- a person or a suspect, you know, it could be a suspect, but it doesn't take long before all of this information ends up in some database that, you know, that eventually will be used by other entities such as an employer, for example, who looks at DNA for hiring, you know? There's a possibility for discriminating based on predispositions of medical issues, you know?

  • 12:24:23

    JAMESDo you want to hire somebody who may end up having heart disease in the next five years, or even for presidential candidates, you know? We might not want a president because if their DNA's showing that, you know, they're going to be in bad medical health in the next two years or so. So, you know, once we go down this road...

  • 12:24:42

    NNAMDIJames, you have touched on the broad question that I'd like both of our panelists to address. During the break, you used the term, Stephen B. Mercer, quoting someone else, a relentless march towards a universal DNA database. Is that where we could be headed? And if so, what's wrong with that?

  • 12:24:59

    MERCERThat's very real concern, and a look at the short history of DNA databases shows a progression of ever expanding reasons to put people in a database. It started off with violent sexual offenders. It expanded to crimes of violence. It expanded to all felon arrestees and certain misdemeanants. It's expanded to arrestees. And if you look at the proponents, justification for these expansions, which is more is always better and there is no privacy interest or a minimal privacy interest at stake, then there's no limiting principal as to where the line is ultimately going to be drawn.

  • 12:25:38

    MERCERAnd this is a march towards a universal DNA database, which raises some huge questions about what our vision is for the future, and whether law enforcement should have stockpiled the DNA of its citizens and subject them to lifelong genetic surveillance for general criminal investigatory purposes.

  • 12:26:05

    NNAMDIJeffrey Rosen, I'm going to ask you a two-part question in that regard. The first being, if, in fact, this is a relentless march towards a universal DNA database, then people will say, look, if you've done nothing wrong, you shouldn't have any fear of being in a universal DNA database.

  • 12:26:26

    ROSENYes, indeed. Nothing to fear, nothing to hide is the standard response to privacy concerns. And it is true that if you're concerned about racial discrimination, then a universal database is the solution. After all, if everyone were in the database, then African-Americans would not be disproportionately surveilled at a rate higher than that of white people. But the answer to the question, why shouldn't you have any fear if you've done nothing wrong, is precisely the one the caller identifies.

  • 12:26:51

    ROSENIn this country, we have no use limitations that prohibit the government from using data collective for one purpose for another purpose. And, therefore, if there were universal database, your insurance company might indeed request the data from the government. You could -- your employer might look at it to see your psychiatric history. Spouses in divorce trials might subpoena each other.

  • 12:27:14

    ROSENBasically, unlike Europe, which says that information disclosed for one purpose may not be shared for another without individual consent, we hold the opposite, that once you've turned over information to the government, you'll lose all ability to control what happens to that. And that raises very serious (unintelligible).

  • 12:27:27

    NNAMDIThe second part of this question you touched on earlier. Now, I'd like to make it more specific. One of the more powerful and controversial applications for DNA, we talked about earlier familial search. Let's say your brother committed a violent crime somewhere in Florida, and the authorities have no lead whatsoever to find him. I don't even know if you have a brother. This is hypothetical.

  • 12:27:47

    ROSENI don't, but let's imagine that. I'm sure he'd be violent if I did.

  • 12:27:49

    NNAMDINow, let's say you're driving in Bethesda, and you are arrested for a crime that you did not commit, say, burglary. If your DNA is swabbed and entered into a national database -- you did nothing wrong -- it can be used to catch your brother. Even though your DNA is not identical, it is sufficiently close to make a strong statistical correlation. We know that the FBI is already doing this. Is this why familial searches are so controversial?

  • 12:28:19

    ROSENFor precisely this reason. We don't visit the sins of parents on their children. And should it be fair that my brother is under a disproportionate surveillance merely because I happen to be arrested? Wouldn't that create an incentive to use traffic stops to collect more DNA from arrestees in the hope that you might be able to catch a brother? And is it fair that some segments of our citizenry should be subject to disproportionate genetic surveillance merely because they happen to have relatives and brothers who commit crimes?

  • 12:28:51

    ROSENShould entire areas of cities be subject to familial searches when the police know that there's a near hit? Should they be able to go into one area of town and ask for volunteers to give DNA? And should people who refuse to volunteer be automatically suspect? These are the questions involving not just privacy but discrimination, both racial and genetic discrimination, that are raised by familial searches. And I think a lot of people are very troubled by it.

  • 12:29:16

    NNAMDIHere is Steve in Severna Park, Md. Steve, you're on the air. Go ahead, please.

  • 12:29:20

    STEVEHi, there. First of all, let me say that isn't it great we live in a country where issues like this are debated both in the public, in courts and in legislatures? So that being said, I tend to think the speakers here are kind of throwing out the baby with the bathwater to a certain extent here. You take -- you have to have biometric measure -- ways of identifying people. And DNA, I think, should be just as legitimate means of identification as your photograph or your fingerprints.

  • 12:29:53

    STEVEThat said, you have courts and legislatures that can dictate what the extent is that that data can be used. I mean, you could use a fingerprint to say, oh, this guy has -- is missing one finger. So is that undue new information that comes out of the fact that he doesn't have a left pinky to take a fingerprint from? If...

  • 12:30:14

    NNAMDIHow do you feel, Steve, about familial searches?

  • 12:30:17

    STEVEWell, that might be an area where there should be limitations. I hate to say I kind of subscribe a little bit to the no fear, nothing to hide. But, that being said, that does seem like a bit more troubling expansion, and it's because it goes beyond a biometric identification of an individual to more of a inferential identification that isn't necessarily true. I -- one thing that no one's spoken to is what is the -- with the familial identification, what is the accuracy of that? I mean, with DNA, it's 100 percent, you know -- on my understanding, it's pretty much 100 percent accurate.

  • 12:31:02

    NNAMDIOK.

  • 12:31:03

    STEVEWith familial, if it's -- if that, as well, is 99.9 percent accurate that Mr. Steve -- you're talking about...

  • 12:31:10

    NNAMDIWell, you raised several questions here, and I'll ask both of our panelists to deal with those. Maryland doesn't do familial searches yet. Stephen Mercer, do you think that it's almost inevitable that these samples could end up being used that way? And, I guess, secondarily, what are -- what is the accuracy of familial samples?

  • 12:31:28

    MERCERWell, to answer that last part first, there are many false positives with familial searching, and that's one of the concerns, is that you're casting a wide net over family members who have never committed any crime. And that would seem to violate a basic contract in our country, which is that police should not be subjecting an individual to police investigation unless there's some objective evidence for doing so. And merely because you're related to someone who's in a database is offensive.

  • 12:32:01

    MERCERSo that there is a high false positive rate, which also sets up the need for law enforcement to go back to the DNA sample and mine it for additional information. Do some data mining. And that's a real concern because one of the promises that we've always heard from the proponents of DNA database is that they'll never touch the DNA sample. They retain it indefinitely, but they only do so for quality assurance purposes.

  • 12:32:27

    MERCERBut now, here with familial searching, what they're actually doing is breaching that firewall that they said would always surround the DNA sample and mining it for more information. Now it's paternal DNA. Who knows what's next? And that really points to why DNA is exceptional and unique and is not like other biometric identifiers, like a photograph or a fingerprint, which, you know, both are taken during the booking process to determine who that person is.

  • 12:32:59

    MERCERDNA is not collected or seized from a person to find out who that person is but rather what they've done in the past and to maintain them under genetic surveillance going forward.

  • 12:33:09

    NNAMDIJeffrey Rosen, if I am a detective investigating a case, no way you're going to stop me from using familial DNA. Does it take the courts, does it take legislatures to stop me from doing that?

  • 12:33:21

    ROSENYes. And they have not stepped in so far. The FBI is planning to do -- actually, that's not exactly right. The FBI decided not to do familial searches because it was afraid that the political pushback would imperil the decision to seize the DNA of arrestees. And that decision is now being reconsidered. The very brave FBI agent who decided to put the stop on familial searches is no longer with the program, so there's a likelihood that the future FBI may.

  • 12:33:51

    ROSENBut courts and legislatures would have to impose some limits. I also wanted to say Steve made a good point. I thought he said, why throw out the baby with the bathwater? In some circumstances, DNA can be useful, and that's absolutely true. We know that out of the more than 250 people who were wrongfully convicted and sometimes put on death row and later exonerated...

  • 12:34:09

    NNAMDIAnd a new study is out just today about people who've been exonerated around the country.

  • 12:34:13

    ROSENAll based on DNA evidence.

  • 12:34:15

    NNAMDI(word?).

  • 12:34:16

    ROSENNow, of course, this is asymmetrical 'cause the government has refused to recognize an automatic right to turn over exculpatory DNA evidence to suspects, and the Supreme Court has refused to create that right. But it's perfectly consistent to say people should have ability to access any genetic information the government holds to use in their defense but still object to things like familial searches and predictive surveillance.

  • 12:34:38

    NNAMDIThank you for your call, Steve. On to David in Rockville, Md. David, your turn.

  • 12:34:43

    DAVIDYes, I think your panel just did a bit of mind reading on me because I was...

  • 12:34:46

    NNAMDII know.

  • 12:34:47

    DAVID...going to bring up this issue of fairness. And what about people wrongly convicted and imprisoned for a crime who would be exonerated if the actual criminal was identified through these -- this DNA evidence?

  • 12:34:58

    NNAMDIYour turn, Stephen Mercer.

  • 12:34:58

    MERCERI think that's a great question and one that needs to be answered directly because databases don't exonerate people. What exonerates people is the analysis of crime scene evidence that excludes the person who's been wrongfully convicted. That's the exoneration. And what the proponents of databases want to do is wrap themselves in the cloak of innocence and say that we need the database to exonerate people. They don't.

  • 12:35:28

    MERCERWhat you need to exonerated people is the collection, the preservation and the analysis of DNA from crime scenes. And then the person who's being convicted needs to have a right of access to that evidence so that they can have it analyzed and compared to their own DNA to show that they're not the person who left the DNA at the crime scene. DNA databases have no role in that.

  • 12:35:53

    MERCERWhat DNA databases do on occasion is they may identify who the source of that crime scene evidence is. But that is a different issue than actually exonerating the person who is wrongfully convicted, which is done by comparing the crime scene evidence to that person's DNA.

  • 12:36:12

    NNAMDIThank you very much for your call, David. Some of this conversation comes down to timing. When we spoke to proponents of this law on earlier -- we heard clips from our conversations with both Maryland's Attorney General Doug Gansler and Prince George's County states attorney Angela Alsobrooks. They emphasize that the act of collecting DNA itself isn't very intrusive.

  • 12:36:32

    NNAMDIIt's certain less -- certainly less intrusive than drawing blood, less messy than having your fingerprints taken. But you were saying that privacy can be violated days or weeks or years after the physical act of collecting the DNA has happened. Why is that important?

  • 12:36:48

    ROSENThere really is a fundamental distinction between the privacy interests of collection and that of use. Yes, it's true. A DNA swab from a hair sample is less intrusive than the kind of strip search the Supreme Court said earlier this year could be visited on people who are arrested for low-level traffic offenses. But that's not where the privacy is violated. It's when, months or years later, the sample is resurrected as used to identify future crimes, is used to identify predispositions that have nothing to do with the crime that's been committed.

  • 12:37:18

    ROSENAnd it's unfortunate that our case law does not recognize a right of informational privacy that regulates use rather than collection. Again, Europe is far more -- is ahead of us in this regard. The German privacy law is very advanced. They allow their intelligence services to have broad forms of surveillance including DNA surveillance, but they can only use the evidence they find if there's evidence of a serious crime or terrorism. They can't use it to identify low-level crimes.

  • 12:37:46

    ROSENIf we were to identify use restrictions like that and very strictly said that you can only use DNA to identify serious past acts of terrorism and can't use it to engage in this future surveillance, some of my concerns would go away. But, unfortunately, I'm not seen any legislature, let alone Congress, adopt the kind of complicated use restrictions that would be necessary to avoid this future genetic surveillance.

  • 12:38:09

    NNAMDIHere is Jean in Springfield, Va. Gene, your turn.

  • 12:38:13

    GENEHi, Kojo. Yes. I wanted to address, really, the issue of the DNA used as evidence as opposed to the DNA being the probable cause, and then it's up to law enforcement to find evidence on that person as opposed to the argument that the case was built around the DNA, therefore, you know, they should be found guilty. I was just wondering if there's a hybrid model of that where the DNA can be used as the probable cause, but it's up to law enforcement to do the proper investigation using the evidence from a cold case to see if that person really was responsible for the crime.

  • 12:38:58

    NNAMDIStephen Mercer.

  • 12:39:00

    MERCERWell, in England, there's a policy that a DNA match standing alone is not enough for law enforcement to move forward, that there has to be other evidence that connects the person to the crime. And there are some concerns that such a policy advances which is namely avoiding the chance that DNA could implicate wrongfully a person in a crime. I think what's important in our discussion here, though, is to understand what the implications are for how proponents see DNA being used in the future.

  • 12:39:46

    MERCERWe've talked about familial searching. Another aspect of this is the expansion, the proliferation of unregulated local DNA databases. And it's somewhat ironic that you had a representative of Prince George's here. Prince Georges has a very robust local DNA database, where they maintain DNA profiles from people who have been victims of crime, people who have submitted DNA samples for elimination purposes. They literally have thousands of DNA profiles in their local database that they cannot upload to the state DNA database or to the national DNA database.

  • 12:40:24

    MERCERBaltimore City is similar also in having this enormous unregulated DNA database that includes over 3,000 DNA samples from victims of crime. And so today's victim becomes tomorrow's suspect, and it's those sort of concerns that really come to the surface when proponents' arguments are accepted that there's no privacy interest, no informational privacy interest at stake at all, that it's merely a buccal swab.

  • 12:40:57

    NNAMDIGot to take a short break. When we come back, we'll continue this conversation on DNA and the future of privacy. If you're trying to get through and the lines are busy, shoot us an email to kojo@wamu.org or send us a tweet, @kojoshow. You can also go to our website, kojoshow.org, and join the conversation there. If you're lucky, you'll get through on 800-433-8850. I'm Kojo Nnamdi.

  • 12:42:56

    NNAMDIWelcome back. We're talking with Steven B. Mercer, he is chief attorney in the Forensics Division of the Maryland Office of the Public Defender. And Jeffrey Rosen, he's a professor of law at George Washington University Law School and legal affairs editor at The New Republic. I will return directly to the telephones where Julie in Annapolis, Md., awaits us. Julie, your turn.

  • 12:43:17

    JULIEThanks for taking my call. Whenever law enforcement is on the show, they're often met with questioning that really makes them prove their point. They have to prove where they're coming from, but I find that your guests today are met with a much more friendly line of questioning, sort of letting them go ahead, and you're sort of leading them into making their case. I'd like to know -- your guests today -- if this something that we can't use.

  • 12:43:44

    JULIEAnd if it's not something that's appropriate, then what do you think law enforcement should do to keep people safe? What are some other alternatives out there that can help people in law enforcement do their job? Most people in law enforcement have fought in wars and have protected people's rights as much as you think that they might be taking them away by trying to use this tool. So I'd like to know what they have as an alternative.

  • 12:44:08

    NNAMDIWell, a couple of quick questions for you, Julie. I'm not sure it's statistically correct to assert that most people in law enforcement have fought in wars. That is not statistically correct. However, what we are talking about here is the use of...

  • 12:44:21

    JULIEThey have served in the military, Kojo. Many of them have served in the military and protected the very rights that you feel they're taking away by using this. And they believe in human rights. They believe in our safety, or they wouldn't put their safety on the line. So I'm asking your guests, what are some other alternatives that they can use to their job better?

  • 12:44:42

    NNAMDIWell, I wanted to -- I want to make sure you understand that we're talking about the distinction between using DNA swabs when a person has been arrested but not convicted of a crime as opposing to use -- as opposed to using DNA swabs after a person has been convicted of a crime. So you're saying that the question to our panelists is, what would be the alternative to using DNA swabs before a person is convicted of a crime?

  • 12:45:06

    JULIESure.

  • 12:45:07

    NNAMDIOK. Jeffrey Rosen.

  • 12:45:11

    ROSENWell, I respect the caller's effort to say, what about catching people? This is important. But I don't think anyone suggests that simply including the DNA of arrestees as opposed to people who have been convicted is going to result in significantly higher people being identified for the reasons -- the statistical reasons that Stephen Mercer suggested. I do think -- if you're concerned about things like wrongful convictions, which also carries with it the possibility of identifying the real culprits, here are a bunch of things that could be done.

  • 12:45:43

    ROSENStudied have shown that the best way to reduce wrongful convictions is to reform lineups so that they're issued in a double-blind way so that no police suggestiveness can lead to the wrong person being identified, recording confessions, regulating forensic testimony in trials so that it meets scientific standards. All of these, according to all the best evidence, would help identify really guilty people and avoid innocent people being wrongfully convicted.

  • 12:46:14

    ROSENAnd I think all of us favor that, but not -- I don't think Stephen Mercer or I are suggesting that the police should never be able to use effective tools, that you shouldn't balance their interest against privacy interests. We -- or I certainly am just concerned about this particular technique, DNA seizing from arrestees, without the kind of regulations that would avoid misuse.

  • 12:46:36

    NNAMDIStephen Mercer?

  • 12:46:39

    MERCERExpanding the database to arrestees has a low utility when you compare those same dollars being used to increase the capacity of local DNA labs so that they can more quickly process DNA evidence from crime scenes and use that evidence to compare against possible suspects.

  • 12:47:04

    NNAMDIWell, Jorge posted this comment on our website. "Your guests say DNA cannot only relate a suspect to one crime, but to past cases and future cases. Not only can they find out if you committed a crime, but also if a relative of yours committed a crime somewhere else. And yet your guests present this as a problem. I still can't find what is the downside of this. Police can solve all kinds of crimes and find fugitives of past crimes. I find it hard to think of anything more positive than this." Stephen Mercer?

  • 12:47:34

    MERCERWell, I think what that points to is the concern about how should informational privacy interest be protected. I mean, the Fourth Amendment historically is focused on a person's home and their physical body. But there's been a growing recognition that, as technology becomes such a defining part of our day-to-day life, whether technology is going to define our principles going forward or whether technology has to really be shaped around our principles.

  • 12:48:07

    MERCERAnd one of our principles and one of our values, historically in this country, is that the police cannot search or seize a person unless they have probable cause that that person has committed a crime.

  • 12:48:21

    MERCERAnd to say that, because this is an informational privacy interest, that it's free game for the police since there's not an invasion into the home and the invasion into the body while we're concerned about it is minimal really ignores what is a defining feature of our society going forward, which is that so much of who we are and so much of our life is defined and contained in information that can be obtained and searched by police without them ever coming into your house or engaging in any kind of bodily intrusion.

  • 12:48:58

    MERCERAnd so we have to recognize that this is an important area for us to discuss as to whether police should have free rein to that type of information about a person.

  • 12:49:14

    NNAMDIWe got an email from Sonia, who says, "I often find myself wondering how soon it is until we are all swabbed at birth. Do your guests have any insight into the likelihood of this? After all, we do take footprints from babies at birth." Sonia herself says she personally doesn't like the idea of mandatory DNA swabbing. She says, "I can't trust that it will always be used in --" what she says -- "I can't trust that it will always be used in a positive way." But the likelihood of us all being swabbed at birth?

  • 12:49:42

    ROSENThere is a precedent for this: Iceland. People are swabbed at birth, and there is a universal database. And it's used not only to catch crimes, but also for predictive and other insurance purposes. Will the U.S. allow this? I hope not. I think there's a strong libertarian suspicion of government here that unites civil libertarian liberals and libertarian conservatives.

  • 12:50:02

    ROSENAnd I'd hope that we would resist the birth foot swab for the same reason that we don't like the idea of a national identification card. But for the reasons we've been discussing, all of the momentum is in favor of this, and that's why it's so important to talk about the cost and benefits right now.

  • 12:50:18

    NNAMDII should point out that, in 2009, Congress passed the Genetic Information Nondiscrimination Act, which makes discrimination based on DNA unlawful, even though it does have its limits. It was mainly focused at employers and health insurance. So the notice -- the notion that you can discriminate against someone because their DNA indicates either a likelihood of an illness at some point is supposedly addressed in that act, correct?

  • 12:50:45

    ROSENAnd that's an important nondiscrimination law, and it suggests that, indeed, some of the concerns we've been expressing can be met by well-crafted legislation.

  • 12:50:53

    ROSENOf course, the nondiscrimination act doesn't address the discriminatory implications of familial searches, which, in addition to the privacy reasons that Stephen Mercer identified, mean that they're just a subset of our population, African-American families, who are more likely to have their DNA surveilled and to have their relatives caught not only for serious crimes like violent crimes, but even for low-level crimes than everyone else.

  • 12:51:18

    ROSENAnd that, I think, strikes me and perhaps some others as unfair. It would require a separate nondiscrimination act to prohibit that kind of familial searches, and it reminds us that discrimination can take many forms.

  • 12:51:30

    NNAMDIOn to Michael in Washington, D.C. Michael, you're on the air. Go ahead, please.

  • 12:51:34

    MICHAELYes. I just can't believe my ears. I mean, it sounds like here we are lobbying for criminals. I don't think I have any problem with my DNA being on record if I'm not committing any crime. We have so many crimes that have been committed, and it's not solved. And it's cold cases everywhere -- murders, you name it. It is. So I don't see any problem with our DNA being on record. And I think we should support our police and our law to catch and kill the crime out of our streets. And I thank you.

  • 12:52:07

    NNAMDIWell, the Supreme Court of Maryland apparently doesn't agree with you at this point, Michael. Let's hear what Stephen Mercer has to say.

  • 12:52:14

    MERCERWell, I think what the caller, again, is saying is sort of the variation of if I didn't do anything wrong, then I have nothing to fear, or that defense attorneys have a predictable opinion on this debate and we're somehow working against public safety. That's just not right. What we're debating here are really the genetic privacy interests of all Marylanders and people in the District of Columbia.

  • 12:52:43

    MERCERThis is about a very important informational privacy interest in one's entire genetic code, which is information rich. It's the blueprint of who you are. And if the government is going to start seizing that from people and storing it in databases, then that really triggers some important questions about, you know, what is our vision for law enforcement going forward.

  • 12:53:07

    NNAMDII get the impression that some people make a distinction between the government and the police. They don't necessarily like government intrusion, but they feel that police intrusion helps to protect us. But I wanted to broaden the question a little bit, Jeffrey Rosen, because we're discussing a set of legal questions that arise from DNA. So I'd like to look at this a bit from the perspective of information technology. From that perspective, we're talking about designing systems and technology that can recognize patterns.

  • 12:53:34

    NNAMDII plug a DNA sequence into a database, and the system can tell me if it matches or if it resembles other samples in a database. It could also conceivably tell me other patterns and begin to make statistical inferences about who is likely to commit a crime in the future or whether a certain family or certain genetic group should be more closely scrutinized.

  • 12:53:56

    NNAMDII bring this up because, in the tech world, we've been hearing a lot about big data recently and about how governments and private companies are using non-genetic information about us to build profiles and make inferences about us. Do you see any similarities here?

  • 12:54:09

    ROSENThere's a deep similarity, as you suggest, between the concerns expressed about big data and the concerns about DNA surveillance. When we talk about big data, some people are worried that advertising companies, for example, will try to predict our behavior and consumer patterns in the future based on our behavior in the past and put us into different boxes and categories, treat us as more valued or less valued travelers or customers based on our consumer patterns.

  • 12:54:36

    ROSENWhen you move that to the law enforcement context, the idea of trying to predict what kind of actions or behaviors people will have in the future based on their predispositions in the past violates the basic idea, which is probably a constitutional principle, that you should be held accountable for what you do, not for what you think or what you're inclined to do, that, basically, you can only be held accountable for your behaviors, not for your motives or predispositions.

  • 12:55:01

    ROSENAnd that's, I think, why -- I think that's perhaps the answer to nothing to hide, nothing to fear question that it's just not fair. It violates basic ideas of due process and nondiscrimination to try to make predictions about how people will behave based on the aggregations of their data, whether that's in the consumer arena or in the criminal arena.

  • 12:55:22

    NNAMDIHere is Katrina in Washington, D.C. Katrina, you're on the air. Go ahead, please.

  • 12:55:26

    KATRINAHello. Yes. I have a point of discussion for familial DNA searches, privacy and estranged kinship. I myself am a donor-conceived person. My biological father was an anonymous sperm donor. I'm wondering, what are the implications, if I were to be drawn into an investigation regarding somebody who I've never met and potentially hundreds of my half-brothers and sisters out there?

  • 12:55:52

    NNAMDIExcellent question. Here's -- first you, Stephen Mercer.

  • 12:55:57

    MERCERWell, I mean, it shows the reach of familial searching of DNA databases. I hadn't considered that situation before. But I think it points to just how expansive it can be. And I just want to point out, too, that familial searching of the Maryland state DNA database is prohibited by statute, and the District of Columbia also passed legislation on that same point, too.

  • 12:56:27

    MERCERBut familial searching of the profile, once it ends up in the national DNA database, is not regulated by state law, of course. And there's also the problem of the local databases as well. But familial searching is a true concern and points to the informational privacy intrusion that can occur here.

  • 12:56:48

    NNAMDIJeffrey Rosen.

  • 12:56:49

    ROSENWhen I interviewed the head of the FBI database, he said he had a case exactly like the one the caller suggests where there had been a father, a suspect, who hadn't told his family about a child he'd fathered previously. A match was made, and this agent faced the personal dilemma of whether or not he should inform the rest of the family that, actually, the father had other children and the children about their unexpected relative. So that just shows so dramatically the informational privacy interests of the unknowing sibling are implicated as well.

  • 12:57:22

    NNAMDII have an email from John, who says, "Back in my constitutional law class, which I took years ago at George Washington, we had a term for people arrested but not convicted. We called them innocent. How are these people legally distinguishable from the general public? There is none. If law enforcement can keep DNA from these innocent people, what's to keep them from doing it to those of us never arrested? This is how civil liberties are lost," says John. I'm afraid we're just about out of time. Stephen Mercer, thank you for joining us.

  • 12:57:49

    MERCERThank you, Kojo.

  • 12:57:50

    NNAMDIStephen B. mercer is chief attorney in the forensics division at the Maryland Office of the Public Defender. Jeffrey Rosen, thank you for joining us.

  • 12:57:56

    ROSENThanks very much.

  • 12:57:57

    NNAMDIJeffrey Rosen is a professor of law at George Washington University Law School and legal affairs editor at The New Republic. Thank you all for listening. I'm Kojo Nnamdi.

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