John Hardenbergh,
Washington Legislative Office
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July 15, 2009

When you spend as much time monitoring the threats to privacy in the United States as the the ACLU does, it can be easy to lose sight of the fact that the emerging surveillance society is not just an American phenomenon. The political, social, and technological forces that are driving the magnification of surveillance here in the United States are happening all over the world. In fact, as data sharing among foreign governments and multinational corporations accelerates, developments in other countries will certainly affect our right to privacy here in the United States. Thus, it is essential to use a wide-angle when assessing the status of privacy here and abroad.

In the U.S., we’re used to having the world’s biggest of everything. But when it comes to DNA databases, it seems that the Brits are at least as ambitious. The last two Labor governments of Tony Blair and the practically still-borne one of Gordon Brown have expanded their database at a much faster rate than the U.S. federal government or the states. Over the past decade, the British government waged an aggressive campaign to expand the country’s DNA database by collecting the private genetic information from increasing numbers of U.K. residents, including children, and many others who have not been convicted of any crimes at all. By 2007, the British DNA database included the profiles of over 4 million people, and had become the world’s largest. We reclaimed that title when the U.S. federal government and the states began to collect DNA from innocent people, but the Brits still got us beat per capita.

Late last year, however, it seemed likely that Prime Minister Brown was going to be forced to reevaluate the Labor government’s policies of unrelenting expansion of the DNA database. In February, the European Court of Human Rights heard the case of two people who were forced to submit their DNA to the national database in spite of the fact that they had never been found guilty of anything. They argued that they hadn’t done anything that would warrant this violation of their right to privacy under international human rights agreements, and in December, the Court agreed with the plaintiffs. They returned with a unanimous decison that the retention of DNA samples and profiles from innocent people violates international law and that they must be destroyed.

In early June, Home Secretary Jacqui Smith announced her plan to bring the United Kingdom into compliance with the court’s theoretically mandatory ruling. In a truly Orwellian turn, she announced that her plan to comply with the ruling was to ignore the clear terms of the ruling. Although she did agree to destroy the biological samples of innocent people within six months of collection, she also stated that she intended to retain the profiles generated from these samples for up to 12 years. She never actually explained why the government was in the business of collecting biological samples from innocent people to begin with.

A mere three weeks after she announced her plan to continue collecting the genetic information of innocent people, she was implicated in the expanding scandal surrounding expenses charged by members of parliament. In early June, it emerged that she had charged the British public for items such as a new fireplace, kitchen appliances, throw pillows, a flat-screen TV, and an internet bill that contained charges for two adult films as well as two other pay-per-view movies. She was forced to resign shortly thereafter. In light of this scandal it is unclear whether Smith’s database scheme will be carried out.

We could care less what kind of movies Ms. Smith and her family choose to watch. The ACLU will fight to the death to protect your right to watch whatever you want in the privacy of your home. But it’s more than a little ironic that a woman who showed such callous disregard for other people’s privacy was forced from her position for what, save for the impropriety of charging them to the British taxpayers, should have been private transactions. Policy makers in the U.S. federal government and the states would be well served to pay heed to the example of Jacqui Smith. The value of privacy is generally better appreciated in its breach than its observance.