Shadow Boxing

A blog that probes the mind's dark secrets

As Privacy Erodes, Do We Really Gain?

How shall we set privacy priorities in a world of increasing danger?

One of my forensics associates recently researched the issue of arrestee DNA collection, which has now become one of several “hot-button” privacy concerns. The Supreme Court has ruled that law enforcement can collect DNA from people arrested but not yet convicted of serious crimes.

Yet the jury is still out on whether this practice solves significantly more crimes to warrant its intrusion into privacy. An Urban Institute study funded by the National Institute of Justice found that arrestee DNA laws vary significantly from state to state, their implementation is costly, and their actual impact is unclear. 

The question is, given this uncertainty, just how far should we trespass into citizen rights in order to detect and stop crime? We want to be safe, of course, but this goal clashes increasingly more often with our desire for privacy. In fact, it’s become one of the key issues in international security today.

I asked Traci Brasse, a former quality assurance expert with several prominent crime labs, about her research and she provided the following points:

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In 1988, the FBI began using the Combined DNA Index System (CODIS), an important investigative tool that relies on DNA technology. Uploaded DNA profiles were collected and analyzed from crime scene evidence and convicted offenders. In 28 states, arrestee profiles were also added. According to FBI statistics as of January 2013, CODIS contains approximately 12 million DNA profiles. 

DNA evidence has proven its value in crminal investigations. Therefore, a working hypothesis is that expanding the National DNA database with the inclusion of arrestee DNA samples in CODIS would benefit public safety.

Yet, the implementation of this practice brings law enforcement into confrontation with constitutional rights under the Fourth Amendment, specifically unreasonable “search and seizure.”

Determining whether the benefits to public safety and crime-solving outweigh constitutional rights is complicated.

While the legal issues are a concern, I looked at the Virginia model and found that, since this state began collecting arrestee DNA in 2002, it’s been successful in solving crimes based on “hits” or matches from the database. Virginia’s success with arrestee “hits”  might be reflected in other states' statistics, but at this point, it’s difficult to make comparisons. The methods and procedures for collection vary too much.

So, let’s get back to privacy, because this issue is not only about justifying privacy erosion with crime-solving success rates. The fact that an arrestee has not been formally charged is only part of the debate. In addition, there are laws that require expunging arrestee DNA if the subjects are not later convicted. We don’t yet know if those states that collect it are doing this in a timely manner.

According to the Fourth Amendment, a two-prong test for determining what constitutes a search turns on reasonableness, requiring that (1) an individual manifest an actual, subjective privacy interest, and (2) the individual’s privacy interest is objectively legitimate in the eyes of the public.

Some courts have analyzed the legality under the “special needs exception,” while others have adopted a “totality of the circumstances” test. The totality of the circumstances approach compares community interest in maintaining databases like CODIS against the individual’s privacy interest.

Although no personal identification characteristics from arrestees are uploaded into CODIS, some courts might consider the sample itself to be “personal” information, because it distinguishes each of us from other individuals. For the sake of argument, DNA, like fingerprinting, is the only form of forensic evidence that is considered to be an individualizing identifier.

Yet if we consider the acceptance of collecting fingerprints and photographs upon arrest, DNA collection is not a stretch from procedures that law enforcement has followed for over a century. The use of a mouth swab for DNA collection is a minimal bodily intrusion. In most ways, it does not differn from other types of identifiers.

Advances in DNA technologies have substantially improved DNA analysis. As a result, crime scene samples as well as DNA collected from known offenders and arrestees can be processed more efficiently. Yet as the Urban Institute report points out, there are significant roadblocks to a comprehensive empirical analysis of this safety vs. privacy issue.

Since such research is lacking, this issue comes down to a philosophical debate, and it’s one we should resolve quickly. With the recent Supreme Court decision in favor of collecting arrestee DNA, we could be digging ourselves into something from which we can’t back out. We don’t yet know whether this practice will be to our collective benefit or our detriment.  

Katherine Ramsland, Ph.D., an expert on murder and other shadow themes, teaches forensic psychology and has published 46 books.

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