Friday, June 07, 2013

Left Side of the Aisle #111 - Part 8

Outrage of the Week: SCOTUS and DNA

You know what's one of the worst things about the Supreme Court? On too many issues, the members of the Court are faced with cases involving scientific and technical issues and called on to make decisions which they are not competent to make.

By the narrowest majority, 5-4, the Supreme Court has cleared the way for police at all levels to take a DNA swab from anyone they arrest for a serious crime and use that to check a database of DNA from unsolved crimes, and do this without evidence that they are suspected of a different crime, without a warrant, and directly contrary to the long-standing understanding that the Fourth Amendment means that the police cannot search for evidence of a crime without individualized suspicion – and, as Steven Shapiro of the ACLU noted, all nine justices agreed that DNA testing is a search.

But for the majority, that didn't matter because, according to the opinion written by Anthony Kennedy, a DNA swab is no different from a fingerprint or a photograph. It's just a routine part of the booking procedure, he said, just a way to identify the prisoner. He actually called it, as such things are invariably called, a “minor intrusion.” No big deal.

But of course it's not minor and the majority showed itself to be abysmally ignorant of just how revealing DNA is. Your face is your face. Your fingerprints are your fingerprints. Your DNA is who you are. Advocates of swabbing - and you know there are advocates, there are always advocates for whatever new violation of your rights is proposed because we just must have this because otherwise the world will fall apart; as one said in this case, "DNA is a tool we could not afford to lose."

Anyway, advocates of swabbing insist that a cheek swab is deliberately chosen because it doesn't tell anything about you beyond your identity. Which is flatly untrue: It can, for one thing, reveal who you may be related to. In fact there is a whole growing industry of collecting and storing voluntary cheek swabs in order for people to find relatives. For that same reason, they are used in determining paternity and in some immigration cases. They are also used in and in matching patients for bone marrow transplants and other medical matches. They can be used to reveal your racial characteristics, your ethnic heritage, and at least some of your medical history, including to what conditions you may be more susceptible. Yes, several of those uses are basically voluntary - but that doesn't change the fact that the claim that a cheek swab is only for for identifying the particular individual and has no other use is complete nonsense if not a deliberate lie.

The fact is, calling a cheek swab just a "booking procedure" and a "minor intrusion" demonstrates that the majority of the Supreme Court doesn't know what it's talking about and is incompetent to reach the decision it did. And now, because of their ignorance, another slice has been taken out of the 4th Amendment and our privacy.

That's especially true because the court's decision contains no limits. The particular case involved someone arrested of a violent crime in Maryland, but in an insightful dissent, Antonin Scalia - and there are six words I never thought I'd say together in that order - in an insightful dissent, Antonin Scalia noted the slippery slope: There is nothing in the decision to prevent this from being applied to every arrest, no matter how minor the infraction.

"Make no mistake about it,” he said, writing for the minority, “as an entirely predictable consequence of today’s decision your DNA can be taken and entered into a national DNA data base if you are ever arrested, rightly or wrongly, and for whatever reason.”

Maryland state officials agree: State Attorney General Doug Gansler agreed that there's nothing stopping his state from expanding DNA collection from those arrested for serious crimes to those arrested for lesser ones like shoplifting.

In fact, Scalia said, why should this stop with people arrested? Why not, he said, take your DNA when you fly on an airplane? Quoting again, "surely the TSA must know the 'identity' of the flying public. For that matter, so would taking your children's DNA when they start public school."

Getting DNA swabs from people convicted of crimes is already common: All 50 states and the federal government take cheek swabs from convicted criminals. According to court documents, the FBI's Combined DNA Index System (CODIS) - a coordinated system of federal, state and local databases of DNA profiles - already contains more than 10 million criminal profiles and 1.1 million profiles of those arrested but not convicted. According to the FBI, the DNA samples from people whose charges have been dismissed, who have been acquitted or against who no charges have been brought are to be expunged from the federal system.

However, those rules do not apply to states and municipalities, which can keep the records as long as they want.

Open wide.


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