The Honorable Bobby Scott, Ranking Member
Crime Sub-Committee of House Judiciary Committee
2464 Rayburn House Office Building
Washington, DC 20515-3901
The Honorable Bob Barr
House Judiciary Committee
1207 Longworth Building
Washington, DC 20515
Re: DNA Legislation - HR 4640
Dear Representatives Scott and Barr:
We are writing to express concerns that the ACLU still has with the DNA database bill. At sub-committee mark-up on this bill, Mr. McCollum stated that he would work with Mr. Scott in making improvements in areas of concern, but not all of those concerns have been addressed. I am sorry that I was not able to give you these comments before Judiciary Committee mark-up, but that was due to the fact the most recent version of the bill was distributed after close of business on the night before mark-up. After a more thorough reading of the latest version of the bill, it is the ACLU's assessment that the current version of HR 4640 is a worse bill than earlier versions. Unfortunately, Mr. McCollum eliminated many of the privacy protections that the ACLU had worked on with Rep. Kennedy and Rep. Chabot on HR 2810. At this point, we have no choice but to oppose this bill and try to defeat it, unless it is substantially improved upon. We urge you two to use your influence with Mr. McCollum to improve the bill.
As you know, the ACLU is deeply concerned about the prospect of the government retaining a permanent DNA database because of the risk that this information will be misused. We do not oppose forensic DNA testing provided that testing is made as available to the defense as to the government, but because of the enormous harm that could come from misuse of this data, any DNA database must be narrowly limited and must protect the privacy of the information.
There is a long and unfortunate history of despicable behavior by governments toward people whose genetic composition has been considered "abnormal" under the prevailing societal standards of the day. While the FBI claims that the information in CODIS will be used for limited forensic purposes, history suggests otherwise. For example, Social Security numbers were initially intended only for use as an aid to track social security payments but are now a universal identifier. Census records created for general statistical purposes were used to round up innocent Japanese Americans and place them in internment camps during World War II. We should assume that at some point the highly sensitive DNA information will be used illegally and will harm someone - likely the more vulnerable members of our society.
The information obtainable from DNA testing surpasses any previous types of testing available. The amount of personal and private data contained in a DNA specimen provides insights into the most personal family relationships and the most intimate workings of the human body, including the likelihood of the occurrence of over 4,000 types of genetic conditions and diseases. Genetic information pertains not only to the individual whose DNA is sampled, but also to anyone who shares that bloodline in the past or in the future. Not only convicted offenders, the privacy interests of untold numbers of people are also at stake. Since current law does not require destruction of the DNA sample after testing is complete, the genetic information contained in the samples could be used in ways that we cannot yet even anticipate.
Given the enormous implications of expanding CODIS we must oppose this legislation. We understand that you support CODIS, but we know that you both care deeply about privacy and civil liberties. We believe that you can use your significant influence with Mr. McCollum to improve this legislation and to that end we request that you advocate for the following changes.
- Limit the number of qualifying offenses for which DNA is collected. We believe that you will concur that DNA should only be collected from persons convicted of serious offenses, particularly limiting collection to those offenses where DNA is likely to be useful evidence such as sex offenses. HR 4640 limits the number of qualifying offenses that cover federal offenses, however, there are no limits placed on the states. Previous versions of this bill limited state qualifying offenses to "violent or sexual offenses" (see p. 2, July 18, 2000 version). The current version of the legislation makes no such limitation. We suggest that state data entered into CODIS be limited to those offenses similar to the eligible federal offenses. We are not claiming that states should not receive funding to conduct DNA testing, merely that CODIS should not include any minor crime for which states may choose to conduct DNA testing. To accomplish this, the following changes should be made: On page 2, line 18 insert "violent or sexual" before "offenses" and p. 2, line 20 add "as defined in Section (3)(d)" after "offenses". On page 13, line 24 insert the word "violent" before the word "felony". On page 14, line 8, insert "violent" before the word "felony." On page 16, line 18 insert "violent" before the word felony.
- The DNA Records and Samples of Innocent People Must Be Automatically Expunged. HR 2810 (Kennedy/Chabot) provided for automatic expungement of DNA records when a person's conviction is overturned. HR 4640 removes the language requiring automatic expungement and replaces it with a requirement that the Director of the FBI expunge the record upon receiving a certified copy of a final court order without specifying who bears the responsibility of getting that court order to the FBI director. The average person is not going to know how to obtain and submit a copy of a certified conviction in order to have their DNA removed from the database. Unless the burden is placed on the government to remove DNA records, it is unlikely to happen. It is only fair that the government bear the burden of removing the DNA record of a person who was wrongfully convicted. We recommend inserting a clause to clarify this responsibility. On p. 17, line 11, add at the end of the paragraph "The government bears the burden of promptly providing the information necessary to expunge the record." On p. 20, line 24, add at the end of the paragraph "The government bears the burden of promptly providing the information necessary to expunge the record."
- Federal Funding Should Only Be Provided to States to Test Persons CONVICTED of qualifying offenses. As explained in the attached memo, the ACLU believes that DNA testing of arrestees may violate the constitution. HR 4640 does not provide any limitations on the states as to whom they are permitted to test. State DNA databases vary greatly as to which crimes they test. Some state laws are narrowly tailored and others, like the state of Louisiana, permit arrestee testing. Although states are free to conduct DNA tests as they see fit, within the parameters of the Constitution, the federal government should not fund arrestee testing. The purpose of HR 4640 is to "carry out testing for inclusion in CODIS." CODIS is a CONVICTED offender database. The federal government should not be funding the states to test arrestees, because those results cannot go into CODIS. HR 4640 does not exclude arrestee testing. This failure can be corrected by adding language under the qualification section. On page 3, line 4, add an additional eligibility clause that reads: "(6) specify that grant amounts shall not be used for testing persons that have not been convicted of a qualifying offense."
- DNA Samples Must Be Destroyed After Testing is Complete. HR 4640 should establish a procedure to destroy the DNA sample once testing is complete. Once tested, the government has no legitimate reason to keep the DNA sample. We are grateful that during the mark-up on HR 4640, Mr. Barr introduced, and the committee accepted, an amendment prohibiting the samples and analyses from being used for non-forensic purposes. This is an important step, but a statute can only go so far in protecting genetic privacy. Unless the DNA samples are destroyed, the risk that they will be misused is great. The FBI claims that it wants to keep the samples in the event that they wish to change the testing method in the future, they do not want to have to recollect the samples. However, the actual need to protect the privacy of Americans by destroying the sample should outweigh the hypothetical need of the government to change its testing methods in the future. Unfortunately, the FBI has a history of violating American's rights and of misusing and fabricating evidence. Additionally, as you can see from the attached memo many state laws are very broad in allowing access to DNA data banks for non-law enforcement purposes. Congress has the responsibility to protect Americans from these potential abuses. We recommend adding an additional eligibility clause stating that federal funding can only be used for forensic purposes. On page 3, after the new subsection (6) see above add the following: (7) specify that grant amounts may only be used for the purposes permissible under CODIS.
Lastly, we recommend including a requirement that states provide access to post-conviction DNA testing. We appreciate Mr. Scott's willingness to offer at mark-up an amendment that would have linked funding with access to post-conviction DNA testing. We understand that there is other legislation pending that will address this problem, but given the lateness of the Legislative session it is unlikely to pass. As you know, many innocent people are in jail and on death row who could be exonerated by DNA testing. Testing may not have been available to them during trial for financial or other reasons. This is intolerable. HR 4640 provides billions of dollars to states to boost their DNA law enforcement efforts. You understand and appreciate the need to provide similar resources to provide testing to potentially innocent defendants. We urge you to include a requirement that testing be provided to potentially innocent inmates by adding an eligibility clause (8) after the two above recommendations that reads: include a certification that the State provides post-conviction DNA testing to defendants when DNA testing could, assuming exculpatory results, establish the defendant's innocence of the crime for which he is convicted and the defendant did not have access to DNA testing at the time of his trial or new DNA techniques would provide a reasonable likelihood of more accurate and probative results.
We understand that you both may not support all of these changes. The two we feel strongest about is ensuring that federal funding is not used for arrestee testing or non-forensic purposes and that the physical samples be destroyed.
Once again, thank you for your help in this, and in so many other ways, for all that you do to protect civil liberties. As mentioned above, we have attached two brief legal memos and additionally we attached a copy of a recent article from the Photonics Spectra that we think you will find useful.
Sincerely,
Laura W. Murphy
Director
Rachel King
Legislative Counsel
Cc: House Judiciary Committee Members
Rep. Patrick Kennedy