Maryland v King Ruling

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rts99

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The Md v King ruling has been released. It is NOT good news. By 5-4 opinion the Court has ruled that police can "take" DNA samples from anyone arrested for a "serious crime" (whatever that means). You don't have to be convicted, no warrants shall issue, and no witnesses against you are required. Only the desire of the police/state to take DNA from it's citizens and run them against as large a database as they can generate. In time the database will contain all citizens. Every crime will be solved through a simple DNA database since it will contain everyone's DNA.

Look for the states to continue to expand on this ruling. Prior to this ruling it was reserved only for violent convicts. Now it's accused of "serious crimes". Next it will be accused of any crime. Lastly it will be "applied for driver's license/state ID card".

So much for "presumption of innocence". Scalia's dissent speaks to the heart of the matter.
 
The ruling is here [pdf]. Notice the other Justices joining Scalia in his dissent: Sotomayor, Kagan, and Ginsburg. I think Scalia was chosen to author it for the force of his language:

The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. Ante, at 25. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster.
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Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies
for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
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I wasn't surprised Scalia voted as he did. He has a streak of libertarian in him. I am surprised Breyer voted with the majority. Just when you think you've got somebody figured out . . .
 
I have mixed emotions, but do think that DNA analysis is the new fingerprinting. Yes it "seems" more invasive as they have to stick a swab in your mouth, but it is a great tool to prove someone's guilt or INNOCENCE.
 
But, with a fingerprint all you get is I.D. With DNA you get so much more.
They have access to information that is not in the warrant or needed to identify you; it seems like a warrantless search to me.
If they find that you have a commumicable disease, do they tell you or the CDC? If they find you have AIDS, TB or VD, what then?

Rick
 
If they find that you have a commumicable disease, do they tell you or the CDC? If they find you have AIDS, TB or VD, what then?
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This is a strawman argument, as buccal testing for DNA would not and could not be used in any disease diagnosis. But let's assume for argument's sake it could - if anything, the public health implications would likely strengthen the argument for conducting the testing, not lessen it.

Let's be honest - this sort of testing is fast, non-invasive and accurate. It's difficult to argue that it is so significantly different from fingerprinting an arrestee.
 
Don't they still require a warrant for a blood test? You could argue that a blood " testing is fast, non-invasive and accurate."

I agree with the OP...very bad precedent. The 4th amendment it made weaker by this ruling.
 
You could argue that a blood " testing is fast, non-invasive and accurate."
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Blood testing requires a medical procedure (penetrating the skin/vein with a needle) to draw blood. Swabbing a cheek is hardly a medical procedure.

Just a modern version of fingerprinting.

Nothing to see here. Move on.
 
buccal testing for DNA would not and could not be used in any disease diagnosis
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So...all those companies that offer to test you for genetic predisposition to a laundry list of conditions are pulling our legs?


This opens the door to creation of a database that contains much more than your identity, unless you want to define identity as every physical thing you are and will be. Further, this cracks the door to collecting such data with NO due process.

Do you not think such a database would be of tremendous interest for a variety of uses?


Hey let's use it for paternity testing, that seems legit.

How about testing for drug abuse tendencies, clear public interest there. Maybe we could make some headway in that drug war?

What about checking the dnadb for a tendency to acquire certain debilitating conditions before hiring positions critical to public safety--police, fire, etc?

Hey, we could examine that dnadb to see if folks are committing insurance fraud. Got yourself a condition, lets just check the old genetic map to see if it's a reasonable diagnosis.

Oh, and we could use it to predict lifespan. That would be tremendously beneficial because we could index your social security payouts to your personalized predicted lifespan. Gonna live a long time? Why we'll just dial the benefits back a bit for you. Just to be fair, you know.

The problem with this is that the information contained in your cellular dna is on the order of 1.5GB--gigabytes. That is tremendously more information than is contained in your fingerprints. These data are the blueprint for all your physical attributes, and likely many of your mental perspectives as well.

Are we really comfortable with the idea that the government, can acquire these data, examine them however they deem appropriate, and store those data in a database (perhaps cryogenically) forever?

Do we believe such a database won't be used for other purposes than simple identification of offenders?

Do we really believe that the temptation to "complete" such a database will be resisted? Perhaps we should be getting a DNA sample from every child that is born, so we can anticipate the lifetime costs to our new federal health system.

Expansion of this system, is already happening right in front of us. First convicted criminals, now arrestees, what next, traffic stops, concealed carry applications?

What possible justification do we have to believe this will not continue to expand, when the official perspective is that DNA testing is just a new fingerprint?

Finally, whatever the current limitations of DNA testing, you can be assured that these tests will reveal more and more about the individual as technology and our understanding of the genome progresses. Perhaps there will be a method of using genetic info to measure things like "resistance to authority." (or whatever personal fear you might have).

Maybe we should get a DNA sample from concealed carry applicants to see if they have any genetic predispositions to violence?

Do you want the government to have such a measure for every citizen?

This decision is ultimately as bad or worse for liberty than Kelo v New London.
 
Let's be honest - this sort of testing is fast, non-invasive and accurate.
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I'm with the dissenters on this: I see that more as an excuse than a justification. As the dissent points out, how long until it's OK to require a DNA sample before getting on an airplane or enrolling in public school?
 
I'm having a hard time seeing this as any different than finger-printing.

The "diseases" and "soon we'll all be in it" arguments are pretty clearly irrelevant and/or Strawman arguments.

Most of us are in the fingerprint database. So what?

Since it's authorized for "serious crimes", are most of us in danger of being arrested for a serious crime?

I don't buy the "How long until...." argument either. I don't see any connection made or implied between those things and being arrested under suspicion of a serious (or even minor) crime.

I'm open to serious points for reconsideration but I'm not seeing it as any different than fingerprinting at this point. I'd bet that a legal eagle could run down the equivalent case on fingerprinting from how ever many years ago.
 
For many years I had a thing about retaining my anynomity. Then I had to get fingerprinted for my NJ FOID card, and well....so much for that. Then a couple years later our township required me to submit to more fingerprinting and a DNA swab for a business license. I guess if they want to go to the expense of running my DNA for that, more power to 'em. So much for my anynomity. Like mentioned above, I don't plan on committing any crimes so I don't see it as a big deal.
 
You can't really be anonymous in the 21st Century information economy. By the time you're five years old you're well-established in the system. By twenty you're a permanent fixture.

I think part of the outcry is due to the false notion that it's possible to stay truly anonymous anymore. Short of living in a mud hut in the middle of a forest, it isn't.
 
Brian Pfleuger
Since it's authorized for "serious crimes", are most of us in danger of being arrested for a serious crime?
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Some crimes that were only misdemeanor a couple of years ago are now felonies or are punishible by several years in prison; how "serious is "serious"?

Rick
 
The "diseases" and "soon we'll all be in it" arguments are pretty clearly irrelevant and/or Strawman arguments.
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Really? Simply stating it's a strawman isn't an argument.

I thought I provided some specific points to think about related to those arguments. What is your argument that these issues aren't worth considering?

It's silly to argue that DNA is equivalent to fingerprints.

Fingerprints give you 1 piece of data, your identity. That's it.

Today, DNA provides access to a tremendous amount of other information that is not necessary to establish identity, including predisposition to genetic disease, paternity, maternity, other familial relationships, addictive behavior, violent behavior, lifespan, and on and on.

In the future, who knows what scientists will be able to discern from samples taken today. Already researchers are using the existing criminal DNA databases in an attempt to develop predictive markers for criminal behavior. Do we want a government controlled database that can be used to identify pre-criminals?

An argument that DNA is no different than fingerprinting is troubling for another reason. As you allude, fingerprinting has had mission creep and is now used in a myriad of situations where identity needs to be established. If we adopt the view that DNA=fingerprinting, then what possible argument could you offer that would preclude substitution of DNA testing where ever fingerprints are used?

I think the brief for Alonzo King is right on point:

Our DNA is our blueprint: an individual's DNA contains not only deeply personal information about the subject's medical history and genetic conditions, but also information that can be used to make predictions about a host of physical and behavioral characteristics, ranging from the subject's age, ethnicity, and intelligence to the subject's propensity for violence and addiction. See, e.g., Center for Genetics Education, The Human Genetic Code—The Human Genome Project and Beyond (2007), tinyurl.com/cgegenome; Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. Med. & Ethics 153, 158 (2006).
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They're "Straw Men" because they attempt to set up a fictional scenario with no evidence or reason to suspect that the scenario is or will ever be true or relevant. They're a distraction from providing a solid reason.

In other words, the police department doesn't care if you have heart disease.

I have never, nor has anyone that I know ever, been arrested for a serious (or even minor) crime, say nothing of a crime that they did not commit. So how will we "soon all be in it"?

Even if we do all suddenly end up in it, the database exists already and has for a number of years. Where is the evidence that anyone is using or plans to use the police/FBI DNA database to deny jobs or health insurance or whatever else you're afraid they'll use it for?

Absent some sort of "Gattaca" type conspiracy theories, such scenarios currently have no basis in the real world.
 
Ok, I'll grant that the MD police dept doesn't care about heart disease (except perhaps in upper management)

A DNA database managed and kept at the federal level is a different animal.

The argument in support of this is that it is no different than fingerprinting.

Lets grant that, arguendo.

Is it unreasonable then, to look to fingerprinting as a predictor for future uses of a DNA database and for future scenarios where DNA might be collected?

Lets see...
1. Nationwide database accessible to all law enforcement agencies
2. Fingerprint checks for a variety of non-criminal purposes often including exercise of civil rights like purchase/possession/carrying of firearms.
3. Access to fingerprint database for a host of federal agencies (for employment screening, identity verification if related to or supporting the agency's mission)


Except, DNA provides so much more information about the individual.

If an analogous DNA database were constructed, are we sanguine that the government would not use it in a manner similar to the uses made of the fingerprint database?

Since health care is now a federal function, are we confident such a database would not prove an irresistible resource to our federal bureaucrats?

It seems to me that the danger, while not yet immediate, is neither remote nor especially unlikely. The argument at this point is over principles, not particulars. Do the dangers of abandoning a privacy interest in our genetic makeup outweigh whatever benefits might accrue to society as a whole? I argue that they do.

The film reference is amusing, but I think the risk, does not depend on a conspiracy so much as upon the paternalistic actions of the well-intentioned.

In truth, I think the second have repeatedly proven much more dangerous to any remnant of freedom.
 
Where is the evidence that anyone is using or plans to use the police/FBI DNA database to deny jobs or health insurance or whatever else you're afraid they'll use it for?
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I might add, that we're not the first to travel this road. Do these landmarks seem familiar?

Consider:
Britain's DNA database is the oldest in the world, established in 1995. Originally intended to retain the DNA profiles of persons convicted of serious crimes, in 2001 the New Labour government led by Tony Blair began to transform it from a criminal database to a database of suspects. Two changes in the law led to DNA being collected routinely on arrest for any recordable offence and held until the suspect reached 100 years of age, regardless of whether or not they were convicted of, or even charged with, any offence.

Britain's low age of criminal responsibility (ten years old in England and Wales) and the wide range of offences classified as recordable led to people being added to the database for such alleged minor crimes as pulling each others' hair or hitting a police car with a snowball. Although young black men were disproportionately affected, people added to the database came from all sectors of society, including a white grandmother arrested for theft when she allegedly failed to return a football kicked into her garden.
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The law in England and Wales allowing retention of DNA and fingerprints following acquittal or when charges were dropped was challenged in the courts. However, the English courts ruled repeatedly that there was no interference with people's right to privacy. The legal breakthrough came in December 2008, when the European Court of Human Rights made a unanimous ruling in the case of S. and Marper v. the UK that the UK law on DNA was clearly in breach of the European Convention on Human Rights.
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SOURCE: The UK DNA database

It's worth a read. Especially notable is that, like many other 'big database' schemes for preventing crime, this effort had little or no effect on solving or preventing crime.
 
The thing is, it's not like the database has to have it's information accessible to the end-user. It's not like the police (or anybody else) will be able to see if you will have cancer or heart disease. It's a yes/no code. Match-No match.

That information about the British system, other than being a history of their implementation, what's the problem there? Who is negatively effected? Who's privacy has been violated? I don't see anything in that article except more of the Gattaca-like conspiracy theories.

DNA won't prevent crime any more than finger-printing prevents crime. Pretty hard to believe that it won't SOLVE crimes though, since it already has solved (and ABsolved) many.

I have a VERY hard time believing that a DNA database won't help solve crimes. Any rapist/molester who's been caught in the past would be nailed instantly. Also, right now, police don't routinely test for DNA like they do fingerprints. If they had a better database, they might.
 
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