Two Sides of the Issue

The question of DNA testing is evidently coming before the Supreme Court this year. The issue is whether taking DNA from someone who has not been convicted of a crime is a violation of that person’s constitutional right to privacy, to bodily integrity.

You would think that a committed civil libertarian would be opposed to this practice, and perhaps if I knew more about the various situations in which the DNA is collected, and the arguments against its use, I would be. But I am very conflicted.

Unlike fingerprints, which are notoriously unreliable, DNA samples analyzed correctly are accurate. Because they are accurate, they prove innocence as well as guilt–DNA evidence has exonerated literally hundreds of people serving time for crimes they did not commit. It has saved countless others the trauma and expense of trials.

Furthermore, the procedures used to collect DNA are not particularly invasive. Typically, a quick swab of the inside of one’s cheek is all that is required–no more time-consuming than rolling fingers in ink and placing them on a surface capable of accepting the transfer, and barely more intrusive.

That said, there’s a legitimate concern that information from DNA and other identity markers can be abused. An effort to collect DNA from the citizenry at large would constitute serious overreach; it would tempt unethical officials to misuse the information, and identity thieves to steal it.

But what about routinely taking DNA samples from people who are arrested? The argument is that a national DNA bank would allow authorities to solve crimes like rape much more quickly, arguably preventing perpetrators from committing additional crimes before getting caught.

The 4th Amendment was crafted long before modern technology; we have to look to its purpose to determine how it should apply to these modern scientific marvels at our disposal. If taking someone’s DNA is a “search,” what is the probable cause, the legal justification, for that search? Can an arrest for some minor infraction provide that justification? Probably not.

I welcome comments and lessons from readers who know more about this issue than I do, because I see both sides of the argument. The positive results of expanded testing would seem to outweigh the negatives, but–especially in Constitutional law–the ends cannot justify otherwise forbidden means.

There are some very good lawyers who comment on this blog from time to time. I need your help now! What am I missing?


  1. Collect the DNA. The process is not invasive, and if it saves even one victim and solves a crime, then it seems to me that the collection process works for the betterment of society. And don’t we also need a new definition of “privacy”? I’m not sure there is such a thing as privacy in a society where all information is easily accessible and where even are whereabouts are easily trackable. I’m not an attorney, though, so just my opinion……….

  2. If a driver is stopped because of suspected “driving while intoxicated” either a Breath test or Blood test is administered. The driver may refuse either test(s) and suffer severe penalties. I would consider the blood test to be more invasive than a swab to the cheek. I also like the above phase, “the 4th amendment was crafted long before modern technology” as was the 2nd amendment. But have we restricted gun ownership to a “Musket and Powder Horn”, no.

    I would assume that DNA testing will be optional and that refusal to comply may also result in difficulties. I’m a little disappointed that this has been posted for several hours now and not one legal opinion voiced.

  3. Hmm…if the government can take part of my body – my DNA – based on an arrest, what happened to the penumbra of privacy ?
    The arguments in favor of sampling DNA from anyone arrested are valid only in the sense that more crimes would be solved. So, is the next step to sample everyone’s DNA ? DO IT FOR THE CHILDREN.
    Seat belt use started out as optional, then mandatory, then it became a primary offense…

  4. There really aren’t two sides to this at all. Being arrested – which, let’s remember, frequently happens to people who have done nothing wrong – is not consent. The idea that the possibility of solving crimes is a good enough reason to justify infringing civil rights is laughable; if that were so, the entire fourth through eighth amendments (all of which exist to protect citizens *from* the criminal justice system) would be rendered meaningless. It is my opinion that this is also true for fingerprinting, as well as any other collection of information about a person in custody by law enforcement, regardless of how identifying the information actually is.

    As for Pat at #1, my personal information is not easily available and my whereabouts are not easily tracked, because I still have the right to choose to make them so. The number of people who choose to make information public has no bearing on their right to make that choice.

  5. Without probable cause, DNA should not be available simply for a traffic stop. We have not begun to under stand the full potential of DNA as information. In the future, will corporations have access to government DNA files? Overtly they could do so under some rubric of “corporate rights” to information. (Corporations are not people, friend.) Covertly a bribe to a clerk here or there and the same quality of access is obtained. Then, as one example, insurance companies access whether a person is predisposed for various conditions. That person’s rates get jacked for whatever the condition. Perhaps that person, unknown to her or him, is a descendant of an infamous war criminal or a person like D.C. Stephenson. A newspaper (the editors of which have inquiring minds) jumps on that info and some poor shmuck’s photo is on the cover of a tabloid in hundreds of thousands of grocery stores. If there is a possibility that innocence can be established in cases, then the accused can consent to DNA tests. To use DNA as a dragnet is to give Joe Friday (may Jack Webb rest in his vodka-ridden peace) a wet dream.

  6. The comparison of DNA to fingerprints is interesting. DNA is easier to obtain and is arguably much more accurate at determining identity. Fingerprinting is used to determine identity only, but DNA can yield so much more information (see Mark Small’s examples). It seems the intrusiveness test ought to apply not just to the effort of obtaining the information, but also to the risk of spreading information beyond the uses anticipated by those seeking the test.

  7. Good discussion – I understand the argument from the point of view of the “utility” of DNA testing, that is, the more DNA samples available, the more crimes might be solved. In the US things that sound like good ideas in a political/social vaccum often morph into bad things.

    IMO laws that make seat belt and child safety seat mandatory and primary offenses, are sometimes used to mess with poor people, especially poor people of color. I admit to having zero facts on which to base this, since I’m white and have no kids, but I could see this happening.

    A better example is Tasers, the use of which by police began as a powerful yet non-lethal means of subduing a violent suspect. Maybe it’s all anecdotal but there’s instances reported of Taser use that seem more about police using Taser as a first resort, rather than a penultimate resort. (Note the correct use of ‘penultimate’ !)

    The privacy aspect by the above two responses is spot on as well…there’s no such thing as absolute privacy when a governmental unit has information. Two examples:

    1) In Mr Obama’s first election his campaign made use of private/secret/off-limits divorce proceedings held by the government, to smear his opponent.
    2) This year’s Indiana Senate bill that calls for strict (some may say insane) rules about the morning-after pill, requires the physician who administered the pill to report negative outcomes to the government’s medical licensing function. So if a woman is given that pill, and has a strange medical reaction requiring hospitalization, her name, condition, details etc are to be reported to the state.

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