A divided US supreme court ruled this week to uphold a Maryland law that allows the police to collect without warrant DNA material from persons who are arrested. The 5-4 decision was greeted with dismay by civil liberties advocates who see it as a body-blow to privacy and a further erosion of the US constitution’s fourth amendment, which is supposed to protect individuals from excessive government intrusion. The truth is, in an era of mass surveillance, we have little privacy left to lose – and the courts have shown little willingness to resist law enforcement claims that access to our personal and physical data is necessary for them to do their job.
This willingness to forgo the privacy of the many to identify the misbehavior of the few is already well established in America’s warrantless surveillance program. In January, President Obama signed into law a five-year extension of the Foreign Intelligence Surveillance Act (FISA) that allows for the monitoring of personal phone calls and emails as long as one of the communicants is outside the US. We have also recently been given reason to believe that all our domestic phone calls may be “captured as we speak” and that no “digital communications are secure.”
If that is the case, one might think that our court system would at least want to investigate the possibility that the government’s warrantless surveillance might fall into the category of “unreasonable searches and seizures” that the fourth amendment is supposed to protect us from. Instead, this past February, the US supreme court rejected a challenge to FISA – prompting concerns it will never rule on the constitutionality of the warrantless surveillance law.
At the very least, it seems that the courts are reluctant to interfere with the government’s ability to gain access to our private and personal communications – the content of our minds, if you will – when national security and law enforcement agencies claim that this information helps them pursue their objectives. Now, with this warrantless DNA ruling, the court has paved the way for the erosion of our physical privacy as well.
In the majority opinion, Justice Anthony Kennedy wrote that DNA sampling was merely a means of identifying a suspect, in the way that fingerprinting and photographing does, and claimed that when an officer makes an arrest supported by probable cause, taking a DNA swab was a “legitimate police booking procedure that is reasonable under the fourth amendment.”
In a scathing dissent, Justice Antonin Scalia rubbished the notion that DNA sampling was nothing more than an identification tool, saying it “taxes the credulity of the credulous” to suggest that it was not going to be used to attempt to solve other crimes. While no one doubts that DNA samples are a useful tool for solving cold cases or exonerating the wrongfully accused, the concern shared by the minority dissent and civil liberties advocates is that using an individual’s DNA to investigate a crime when the state has no incriminating evidence against that individual represents a drastic overextension of police powers. As the ACLU’s national legal director Stephen R Shapiro, said in a statement:
“The fourth amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. Today’s decision eliminates that crucial safeguard.”
As regards the future of our genetic privacy, it’s important to note that the law upheld by the US supreme court ruling in the Maryland v King case only allows for DNA to be taken from people who have been arrested and charged with a serious crime, and that this DNA can only be tested after a judge has found there to be probable cause that the person has committed a crime. The attorney Michael Risher who authored the ACLU’s amicus brief in that case points out, however, that other states’ laws and the federal government allow the police to take DNA from people arrested for much less serious crimes, such as drug possession or intentionally bouncing a check. These laws also allow the government to have that sample analyzed even if the person is never charged and when there is no incriminating evidence.
The fear is that this recent decision has paved the way for these much broader laws that allow the violation of our fundamental rights to (genetic) privacy to be upheld also. As Scalia wrote in his dissent:
“Make no mistake about it: as an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
So, where does all this leave the fourth amendment and that supposedly inalienable right it bestows on us to be secure in our “persons, houses, papers, and effects against unreasonable searches and seizures”?
Thanks to previous US supreme court rulings, we can be stopped in the street and frisked by police without probable cause for arrest. Our international phone calls and emails (and possibly our domestic ones) can be captured and recorded by the state. And now the court has paved the way for our genetic blueprint to to be made available to the government as well.
These successive attacks on the fourth amendment are always justified by law enforcement and national security concerns. If the loss of privacy is the price we have to pay, then it doesn’t feel like a fair bargain.
[DNA illustration via mathagraphics / Shutterstock]