An EPIC saga

After Thomas Cameron Kincade, a convicted bank robber, was paroled in August 2000, his parole officer demanded he submit to providing a blood sample so that a record of his DNA could be added to the Combined DNA Index System (CODIS) maintained by the FBI and made available to other law enforcement agencies. The requirement was in line with the DNA Analysis Backlog Elimination Act of 2000, which requires certain felons and parolees to submit a sample of their DNA to the government.

As explained by the Electronic Privacy Information Center (EPIC) in a mailing on August 27,

The DNA Act does not require suspicion that an individual will commit or has committed another offense, nor that the sample be taken in order to aid in the investigation of a particular crime. Refusal to provide a DNA sample is a misdemeanor.

Kincade did refuse, claiming that being required to submit such information in the absence of reasonable suspicion violates Fourth Amendment guarantees against unreasonable search and seizure. Last October, three-judge panel of the Ninth Circuit Court of Appeals agreed with him.

On August 18, the full court overturned that decision in a close 6-5 decision.

Judge [Diarmuid] O'Scannlain's majority opinion noted that parolees are not entitled to the full extent of constitutional protections enjoyed by the public. The court concluded that the public interest served by collecting parolees' DNA outweighed parolees' "substantially diminished expectations of privacy...."

The Detroit News for August 19 has more.

"Parolees have demonstrated by their adjudicated criminal conduct a capacity and willingness to commit crimes serous enough to deprive them of liberty," O'Scannlain wrote. ...

The DNA program "helps minimize the pain and suffering recidivist offenders sow in our communities," he wrote.

I think that comes dangerously close to "once a criminal, always a criminal." And in fact, the danger goes well beyond that, since O'Scannlain also said that

"By contributing to the solution of past crimes, DNA profiling of qualified federal offenders helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large...."

Which clearly marks the program as a fishing expedition, as demanding people surrender personally-identifying information just to see if maybe it can be used against them somehow. But if that's the logic, why stop at parolees? Why not profile everyone? After all, it can hardly be argued that all unsolved crimes were committed by those now on parole. Does Judge O'Scannlain have no interest in bringing "closure" to those other cases?

In fact, it was only in a concurring opinion that the issue of what happens to the records later was raised.

A concurring opinion by Judge Gould emphasized that the court had not determined the rights of an individual "who has fully paid his or her debt to society, who has completely served his or her term, and who has left the penal system.... Once those previously on supervised release have wholly cleared their debt to society, the question must be raised: 'Should the CODIS entry be erased?'" Judge Gould noted that this question would have to be addressed in a future case,

leaving open the possibility that such a "future case" could decide that the records could be kept permanently, perhaps even referring to O'Scannlain reasoning about "recidivist offenders."

Judge Stephen Reinhardt, who wrote the ruling that was overturned, wrote in a dissent the new decision puts all Americans at risk "of having our DNA samples permanently placed on file in federal cyberspace."

"Even governments with benign intentions have proved unable to regulate or use wisely vast stores of information they collect regarding their citizens," Reinhardt wrote.

He noted that California's Proposition 69 would give state authorities the right to obtain DNA samples from people merely arrested - not convicted, arrested - for felonies. If they were cleared, the records would not be automatically destroyed; the formerly-accused would have to obtain a court order to have it done.

Judge Reinhardt's lengthy dissent ... chastised the majority's holding, stating, "Never has the [Supreme] Court approved of the government's construction of a permanent governmental database built from general suspicionless searches and designed for use in the investigation and prosecution of criminal offenses." Judge Reinhardt went on to caution, "Privacy erodes first at the margins, but once eliminated, its protections are lost for good, and the resulting damage is rarely, if ever, undone. Today, the court has opted for comprehensive DNA profiling of the least protected among us, and in so doing, has jeopardized us all."

For more information about the case, see EPIC's account here; to read EPIC's amicus brief on Kincade's behalf, click here for the .pdf file.

Footnote: The other excuse for allowing the demand was that the invasion of privacy is "minimal." Isn't that always the way? Every single intrusion is called "minimal." Back on March 29 in relation to another civil liberties issue, I mentioned a comic-strip story done some years ago by Jules Pfeiffer about atmospheric nuclear testing. After each test he showed a functionary loudly declaring "this test has added no appreciable amount of radioactive fallout to the atmosphere." But after enough of those "no appreciable amounts," people started to see "big black floating specks" in the air that grew larger with each new test. It's wise to remember that enough "minimals" add up to one "maximal." And the black specks are becoming clearly visible.