Anyone who has seen a crime drama knows the trick. The police need someone’s DNA, but they don’t have a warrant, so they invite the suspect to the police station, knowing that some of the perpetrator’s genetic material will likely be left behind. Bingo, crime solved. Next case.
A person loses no less than 100 kilos of DNA-containing material and about 30,000 skin cells per hour during their lifetime. But who owns that DNA is the latest modern privacy issue before the US Supreme Court. At its core, the issue focuses on whether we should live in a hermetically sealed bubble to prevent our genetic traits from potentially being cataloged and analyzed by the government.
Supreme Court justices will meet in private on February 27 to consider putting a case involving this sci-fi-like question on their docket. The dispute combines science, technology, genetic privacy and a true, unspeakable crime against a woman.
The unknown woman in the case was raped in 2006 in her Maryland residence. Over the course of two years, authorities questioned as many as 20 suspects. They all voluntarily gave a DNA sample to the Maryland State Police. None of it matched the genetic material left at the crime scene.
Then came another suspect, Glenn Raynor, the woman’s former classmate. He voluntarily met the police, said he was not the rapist and refused to submit to genetic testing.
During the interview, his arms rubbed against the chair, so the police wiped the armrests of the chair. The genetic material they discovered matched crime scene evidence found on the victim’s pillowcase and patio. Rayner tried to suppress the DNA evidence, arguing that police had violated his genetic privacy in violation of the Fourth Amendment.
In a 4-3 decision last year, the Maryland Supreme Court ruled against Raynor. Leaving someone’s genetic material behind is similar to a fingerprint – so there was no invasion of privacy, the majority reasoned.
“Ultimately, we believe that DNA testing of the 13 identifying junk loci in genetic material, not obtained through physical intrusion into the subject’s body, is no more a search for Fourth Amendment purposes than the fingerprint testing or the observation of any other identifying feature revealed to the public – face, apparent age, body type, skin color,” the court ruled 4-3.
The three dissident judges said the case sets a dangerous precedent.
The majority approval of such a police procedure essentially means that a person who wants to keep her DNA profile private must conduct her public affairs in a hermetically sealed hazmat suit. In addition, the majority opinion is likely to result in many people being reluctant to go to the police station to voluntarily provide information about crimes for fear that they too will be added to the CODIS database….that a person can no longer vote, serve on a jury, or obtain a driver’s license, without opening their genetic material to collection and codification by the state. Unlike DNA left in the park or a restaurant, these are all cases where the person has identified themselves to the government agency.
If the judges agree to review the issue, the case will follow several high-profile, modern privacy disputes recently decided by the Supreme Court.
Last year, the court said police need a search warrant to search the cell phone or other device of someone arrested. In 2012, judges ruled that fitting a GPS device to a suspect’s vehicle and tracking its every move amounted to a search, which usually required a court order.
Raynor’s lawyer, Byron Warnken, said the same reasoning should apply to his client.
“The amount of technology – chemical and automated manipulation, amplification and isolation – required to obtain a DNA profile from raw body remains demonstrates that DNA profiles are not exposed to the public in any way that would reasonable expectation of a free citizen’s privacy. ,” Warnken (pdf) told the judges in a petition. “The surreptitious collection and analysis of involuntarily shed DNA is just a substitute for physical intrusion into the applicant’s body. Involuntarily shed DNA is a tangible part of the applicant’s person.”
But in 2013, the judges ruled in another genetic privacy case from Maryland. By a vote of 5 to 4, the Supreme Court declared that police may take a DNA sample from those they arrest. No warrants were needed.
“When officers make an arrest supported by probable grounds for detention for a serious crime and bring the suspect to the station for custody, taking and analyzing a cheek swab of the arrestee’s DNA, as is fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Judge Anthony Kennedy wrote for the majority.
However, Warnken said his client voluntarily went to the police and was not in custody when authorities collected his DNA. Instead, Warnken wrote, Raynor was a “free citizen” and the subject of a “stealthy analysis of involuntarily shed DNA.”
Maryland prosecutors declined to file contrary directions with the Supreme Court.
So far, one summary judgment has been filed by the Electronic Frontier Foundation.
“As humans, we lose hundreds of thousands of skin and hair cells every day, with each cell containing information about who we are, where we came from, and who we will be,” says Jennifer Lynch, a senior EFF staff attorney. “The court must recognize that giving police the limitless ability to collect and search genetic material will usher in a future where DNA from any person, at any time, can be collected, entered into and verified against DNA databases, and used to conduct ubiquitous surveillance.”
Frame image by Micah Baldwin