DNA, CODIS and Liberty

Last week, a federal district court ruled that mandatory DNA collection for all people facing federal felony charges is constitutional, dealing a setback to civil liberties. U.S. District Judge Gregory G. Hollows upheld the DNA Fingerprint Act, a 2006 statute which allows federal law enforcement agencies to collect DNA from individuals “arrested, facing charges, or convicted” of federal offenses, as well as those “detained” but not charged. Previously, states throughout the country had a variety of different laws on the books regarding DNA collection — with most mandating testing only after a suspect had been convicted of a crime. The Not-So Private Parts [True/Slant].

So to dub this a “criminal” DNA database is misleading, because the DNA collection — stored in a database known as CODIS, short for Combined DNA Index System — is not limited to convicted people and never goes away. Historically, until 2001 DNA was collected only from inmates who had been convicted of a small number of specified offenses defined in rules promulgated by the Justice Department. Then the USA PATRIOT Act, in Section 503, added three additional categories of qualifying federal offenses for purposes of DNA-sample collection: (1) an offense listed in 18 U.S.C. 2332b(g)(5)(B), for “acts of terrorism transcending national boundaries”; (2) a crime of violence; and (3) an attempt or conspiracy to commit any of the above offenses.

So this little-noticed piece of legislation not only expands infinitely, to any criminal offense, those eligible for DNA collection. It also expands the DNA database to people who are arrested but never indicted or “charged” but never tried, as well as those who are acquitted! That’s bad enough, in my view, to characterize this law as yet another step toward an Orwellian future for the United States, driven by the knee-jerk reaction to 9/11, led by conservatives such as Sen. John Kyl, well-known for spearheading the so VERY important battle to criminalize Internet gambling by U.S. citizens. Will the government require location-based service providers, cell phone networks and smart-tag toll technologies to hand over and archive location data on subscribers, so the government can track us? Will Amazon, eBay and other online retailers be forced to allow the government to troll their databases for purchasing patterns?

Maybe folks made the same complaints when fingerprints began to be collected on arrest more than 70 years ago. But the difference is that DNA has taken on almost mythical status as being indisputable. As Eric Goldman observed when the Act was passed:

Criminal jurors, charged with deciding facts in a trial, tend to be irreversibly swayed by DNA evidence, rightly or wrongly. Call it the “CSI effect,” but DNA evidence creates an irrefutable connection in the minds of most jurors. While this can be a two-edged sword when juries expect forensic evidence prosecutors just don’t have, jury allegiance to DNA evidence tends to harm defendants it is introduced against much more than it exonerates them.

This is a double-whammy. First the government gets DNA from anyone with even the most cursory involvement with the criminal justice system. Then it can utilize those samples to add a patina of irrefutability to its criminal prosecutions. Whether or not the CODIS database is extended again (maybe to all infants born in the United States, justified as a way to protect against kidnapping and Amber Alert lost kids?), I believe its application beyond individuals convicted or indicted for terrorism and violent felonies is unnecessary and irresponsible.

As Benjamin Franklin wrote in 1759, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” That’s a good lesson to apply to the DNA Fingerprint Act.