ACLU Warns of Privacy Abuses in Government Plan to Expand DNA Databases

March 1, 1999 12:00 am

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DALLAS, TX — The American Civil Liberties Union believes that any proposal to create wholesale DNA data banks of suspects presents a frightening potential for a ‘brave new world’ in which genetic information is routinely collected and used in ways that will likely result in abuse and discrimination.

Attorney General Janet Reno has asked National Commission on the Future of DNA Evidence to study the legality of taking DNA samples from everyone arrested instead of just the convicted sex offenders and violent felons currently permitted by law. I welcome the opportunity to testify before the Commission today about the civil liberties issues such a proposal raises.

While the ACLU does not oppose any specific type of technology, we are deeply concerned that every expansion of the data banks and every new use for the data opens the door to more and more privacy abuses.

Our government has a long, sad history of creating database that inevitably undergo what I will call ‘function creep.” By this I mean data bases that are created for one discrete purpose, yet despite initial promises of their creator, eventually take on new functions and purposes.

In the 1930’s, for example, promises were made that the Social Security numbers would only be used as an aid for the new retirement program, but over the past 60 years they have become the universal identifier which their creators claimed they would not be. Similarly, census records created for general statistical purposes were used during World War II to round up innocent Japanese Americans and to place them in interment camps.

We are already beginning to see that function creep in DNA databases. In less than a decade, we have gone from collecting DNA from convicted sex offenders — on the theory that they are likely to be recidivists and may leave biological evidence — to creating data banks of all violent offenders, of all persons convicted of a crime, of juvenile offenders in 29 states, and now to proposals to DNA-test all arrestees.

There have even been proposals, like one made by the Michigan Commission on Genetic Privacy, to permanently preserve the blood samples of newborns — purportedly obtained to detect rare congenital diseases — and use them for law enforcement and research purposes. With those kinds of plans afoot, the phrase “innocent as a newborn babe” may soon become meaningless.

The amount of personal and private data contained in a DNA specimen makes its seizure extraordinary in both its nature and scope. DNA samples can provide insights into the most personal family relationships and the most intimate workings of the human body, including the likelihood of the occurrence of over 4,000 types of genetic conditions and diseases. There are many who will claim that there are genetic markers for aggression, substance addiction, criminal tendencies and sexual orientation.

And because genetic information pertains not only to the individual whose DNA is sampled, but to everyone who shares in that person’s blood line, potential threats to genetic privacy posed by their collection extend well beyond the millions of people whose samples are currently on file.

The ACLU has argued and will continue to argue that these wholesale collections of DNA are intrusive, unreasonable searches made without the individualized suspicion required by the Fourth Amendment and similar state laws.

To find otherwise is to equate arrest with guilt and to empower police officers, rather than judges and juries, to force people to provide evidence that harbors many of their most intimate secrets as well as those of their blood relatives.

How can you justify forced testing of a person arrested for jaywalking or taking part in a political demonstration? It cannot be argued that forcing arrestees to provide blood samples serves any legitimate security concern. There are ample other means of confirming a person’s identity. The only possible justification is investigatory and if law enforcement has reason to suspect an individual then it can and should seek a warrant.

The stakes are high and the risks are great. Every expansion of DNA data banks and every new use for those data increases those risks. The Commission has an obligation not just to assist law enforcement, but to protect the privacy interests of all Americans.

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