March 4, 2013
The Supreme Court recently heard oral argument in Maryland v. King, a case considering the constitutionality of warrantless DNA collection from arrestees. We’ve long warned about the privacy problems with the rise of cheap, easy and fast blanket DNA collection, and filed an amicus brief with the Court urging it to hold the government can only obtain this sensitive genetic material with a search warrant. While it can be fruitless trying to read the tea leaves of oral argument, one specific idea — that technological advances making DNA analysis faster means warrantless collection may be OK — should leave you worried about the fate of privacy going forward in the digital age.
One of the main disagreements surrounding the issue of DNA collection is whether the state is collecting DNA from arrestees for immediate identification — to figure out if they’ve arrested the right person and learn who that person is for purposes of making a bail determination — or for past and future investigation — to solve cold cases and to store DNA for future searches. The state has long claimed they used DNA for both, while we’ve argued the government simply isn’t able to use DNA collection for immediate identification purposes since there’s currently a delay in analyzing DNA ranging from several days up to a few months. But with the rise of rapid DNA analyzers which can analyze DNA in 90 minutes, law enforcement is chomping at the bit to purchase and install these devices at police stations across the country. When the lawyer challenging the blanket DNA collection argued that law enforcement’s interest in using DNA for immediate identification was simply not possible because of the lengthy delays in DNA analysis, Chief Justice Roberts interrupted to note (PDF):
Now, your brief says, well, the only interest here is the law enforcement interest. And I found that persuasive because of the concern that it’s going to take months to get the DNA back anyway, so they are going to have to release him or not before they know it. But if we are in a position where it now takes 90 minutes or will soon take 90 minutes to get the information back, I think that’s entirely different…
Other members of the court echoed this idea, hinting that if DNA analysis was done faster, than there could be a legitimate identification — as opposed to investigative — need for the practice. And if that was the case, then DNA collection was no different than fingerprinting, and the police could swab and collect DNA without a search warrant. This would be a dangerous Fourth Amendment precedent.
The reasonableness of a search under the Fourth Amendment has always depended on whether the search is reasonably related in scope to the circumstances that justify the search in the first place. But that determination shouldn’t hinge on how long it takes to do the search, but rather what the search reveals. And with DNA searches, an enormous amount of sensitive information is being revealed to the government: a person’s entire genome. Ignoring the breadth of this intrusion by focusing on the ease of collection — implicitly believing the easier it is to intrude into a private place, the less protected it is — elevates form over substance to the detriment of the right of privacy enshrined in the Fourth Amendment.
This dangerous thinking extends beyond DNA collection. We’ve already warned about the problems with warrantless home video surveillance and stingrays, or fake cell phone towers which the government has been very secretive about. As technological advances like these allow the government to easily collect and catalog greater amounts of information, courts run the risk of allowing broader and more intrusive searches to pass Fourth Amendment scrutiny simply because of the possibility of exposure. Instead, courts should be focusing on the actual intrusion and people’s expectation that private information will not be exposed, regardless of how technological advances can make government access easier or faster.
The fact the government can do something now it couldn’t do before doesn’t make it constitutional. In fact, it should be the opposite. As it becomes easier for the government to seize and analyze, institutional checks — like a search warrant — on the government’s power is necessary to protect privacy before it becomes a casualty to technological advances.