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Dexter, DNA and Your Privacy

Courtenay Strickland,
ACLU of Florida
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November 25, 2009

Ripped from the headlines, the ACLU was recently mentioned on the popular Showtime TV show, Dexter. It went like this:

QUINN: We could do a targeted DNA sweep of white males, 60ish and in the Miami Metro area.
MATSUKA: ...The ACLU will shut this down the minute word gets out.
BATISTA: And they always do. You can't do a roadblock without drawing some attention.

Unfortunately, taking DNA from people who haven’t even been arrested for a crime, much less convicted, isn’t the stuff of television only. It’s real life!

Earlier this year, Florida and Colorado passed legislation that would expand the states’ DNA collection programs to individuals who have not been convicted of any crime, but who have merely been arrested — not even necessarily charged — with a felony. According to news reports, some 16 other states already require felony arrestees to part with their private genetic material.

Granted, DNA is a powerful tool for law enforcement. But law enforcement already has ample authority to collect a DNA sample from an arrested individual in those cases where a court-issued warrant — supported by probable cause — is first obtained. Collecting DNA from innocent people distorts the delicate balance between the need for effective law enforcement and civil liberties. But unfortunately, the problem with collecting DNA from innocents doesn’t stop there.

The law enforcement community seems to have bought the line that the bigger the databank, the more effective it is. In reality, however, this is a situation of diminishing marginal returns: as the databank grows to include more and more people who are innocent, the likelihood that the DNA stored there will ever be connected to a crime involving DNA evidence is less and less.

And given the racial disparities in our criminal justice system — particularly with regard to racial profiling and who is arrested in the first place — you can wind up with a DNA database that not only fails to serve the public safety, but that is also a discriminatory boondoggle because it over represents minorities and the poor.

And then there are the backlogs that collecting DNA from arrestees creates — backlogs that can delay the testing of crime scene DNA and might actually lead to future crime prevention. All of this has been confirmed by the Justice Department’s Inspector General.

DNA, mind you, is not the same as fingerprints. The privacy stakes with DNA are much higher because DNA carries so much information with it — insights into personal family relationships, disease predisposition, physical attributes, and ancestry. In some states, it has already been discovered that so-called “rogue databanks” are operating outside the state’s jurisdiction.

In America, people are presumed innocent until proven guilty. At least that’s the way it’s supposed to work. Keeping the government out of our DNA may be an uphill battle, but it’s one that’s worth fighting.

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