Since the turn of the 21st century, the use of DNA technology has gained a firm foothold in society. DNA technology is now increasingly called on to serve both state and private functions. In state practices, DNA technology is employed in surveillance by law enforcement, and in the private sphere, the use of DNA technology (e.g., by employers, genetic testing companies) calls forth issues of privacy invasion and employment discrimination. The ubiquity of DNA technology in both public and private domains is spurred by sociological phenomena such as genetic essentialism and genetic determinism. Genetic essentialism is the notion that the genetic material is the “essence” of the individual, and genetic determinism is the concept that genetic information is determinative of an individual’s predisposition for disease as well as other social behaviors.
Genetic essentialism as related to defining and constructing legal identity is represented by the surveillance uses of DNA technology by the state. In 2000, the U.S. Federal Bureau of Investigation (FBI) started developing a biometrics database, the Next Generation Identification System (NGI). The creation of this system is a $1 billion program, designed by defense contractor Lockheed Martin, that will combine data such as fingerprints, iris scans, photographs, and voice data into a searchable platform for use by federal and state agencies. The NGI has been designed to be flexible to incorporate other biometric markers, such as DNA, in the future.
Advances in computing have led to a wider variety of mobile DNA collection devices, as well as more cost-efficient solutions for storing and for sharing data between agencies and organizations. The benefits of DNA technology for law enforcement cannot be discounted, even as it is weighed against its harms. DNA information may help identify those present at the scene of a crime and also plays an important role in proving the innocence of the wrongly accused. The Innocence Protection Act, as well as nonprofit organizations (e.g., The Innocence Project, based out of Cardozo Law School) that support the act’s aims, allows for postconviction appeals through the use of DNA testing. The development of sophisticated DNA-testing technologies allows for the introduction of new DNA evidence that was previously undetectable by past technologies, resulting in several successful appeals. At the same time, the use of DNA in contemporary policing raises numerous legal, civil rights, and ethical concerns, particularly regarding the overpolicing and surveillance of minorities and activists. This entry discusses several of the issues associated with the increased use of DNA technology by both state and private entities, including civil rights, privacy, and employment discrimination.
A wider array of potential matches within a database widens the pool of potential suspects and the possibility of false positives, providing a gap through which bias—now bolstered through scientific techniques—may enter into court systems. Evidence shows that biometric data, such as DNA, are subject to collection and laboratory errors and pro-prosecution bias and are often presented in ways that may overstate scientific certainty. Fabrication of DNA evidence could increasingly become a problem as researchers have shown that they can manufacture evidence to match a given DNA profile, even without a sample from the individual who holds that DNA profile.
A number of cases illustrate the consequences false positives can have on individuals within the criminal justice system. For instance, in some cases where DNA has traveled through environments—through cells and fluids—its presence has resulted in innocent people being implicated in crimes despite not being present at the scene of the crime. In one case, a homeless man spent 5 months in prison because his DNA was found at the scene of a crime that had been committed while he was lying unconscious in a hospital. Investigators eventually discovered that his DNA had been transferred to the scene of the homicide through emergency medical technicians and medical equipment. In the case of DNA and fingerprints, the length of time and the condition under which biometric data are collected can also affect the strength of the match, and these degraded samples are more likely to produce false positives than if full profiles can be retrieved from the scene of a crime. The presence of data from multiple individuals can also affect the degree to which evidence can be perceived as conclusive.
When samples are degraded, experts analyzing DNA evidence can often disagree over the results. A survey conducted by the National Institute of Standards and Technology in 2013 asked analysts from 108 labs to look at a three-person mixture and determine whether a suspect’s DNA was present. The study found that analysts disagreed as to whether the suspect’s DNA was included in the sample, with 70% of the analysts saying the suspect might be present, 24% saying the data were inconclusive, and just 6% saying the suspect’s DNA was not in the sample (which was the right answer). These types of disagreements can often be used in court to cast doubt about the theories being presented by either the prosecution or the defense. Regardless of these deficiencies, DNA evidence has become entrenched as a tool for law enforcement. At the same time, DNA can implicate individuals in crimes they may not have committed or expose family members to a judicial system that could see them as a suspect by virtue of their DNA’s relation to that found at the scene of a crime.
In 2013, the Supreme Court held in Maryland v. King that
when officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
The justices concluded that DNA collection while a suspect is in custody meets the “reasonableness” standard of the Fourth Amendment to the U.S. Constitution because law enforcement has a legitimate government interest in processing and identifying arrestees and using that information to set (or deny) bail. Ultimately, the Court ruled that an arrestee’s interest in keeping his or her DNA information private does not outweigh the legitimate government interest in obtaining that information. What this means in practice is that the police can and do collect DNA samples from anyone arrested for any reason.
Data sharing between government agencies and between government and private entities is in many cases also justified through U.S. legal theory. The Third Party Doctrine has been upheld by several Supreme Court rulings, and it stands for the idea that anything that an individual has shared with another party no longer holds an expectation of privacy such that it is not a “search” (under the Fourth Amendment definition) for the government to collect that information. In the 1979 decision of Smith v. Maryland, the Supreme Court held that a person has no legitimate expectation of privacy for information that has been voluntarily turned over to third parties. The Smith ruling had as its precedent another Fourth Amendment case decided 3 years earlier, United States v. Miller, which involved warrantless government access to a suspect’s bank records, in which the Supreme Court ruled that bank customers possessed no standing to contest government subpoenas to access customer records. What the Third Party Doctrine means in an age of inexpensive DNA collection technology is that as more people opt or are mandated to share their DNA information (e.g., with corporations for genetic testing or with the government for immigration purposes), their information becomes vulnerable to capture by law enforcement without the need for a search warrant.
The length of time biometrics is stored in the state and federal databases creates other privacy concerns. Currently, depending on the state or federal law, DNA information can be stored for as many as 75 years or until the statute of limitations for all criminal violations has expired. Since the full capacity of technology in the future is unknown, it is unclear how these data might be employed in the future. Furthermore, there are few barriers for government agencies to share DNA data with each other. Since 9/11, the government has enacted several measures to allow information sharing within and among federal intelligence and federal, state, and local law enforcement agencies. All 50 states currently share DNA records through CODIS (the Combined DNA Index System), the FBI-managed central database that links DNA profiles from across federal, state, and territorial collection programs. Although DNA databases are currently kept separate from fingerprint and other biometrics databases, such as the NGI, that could change. According to government documents, in November 2014, the FBI hosted a briefing at the Criminal Justice Information Services Division to show businesses how the FBI was streamlining and automating DNA collection by law enforcement, for potential integration of the Rapid DNA Analysis into the FBI’s CODIS and NGI systems.
In addition to data collected by governments, there are also DNA databases being produced by private enterprises. Direct-to-consumer (DTC) genetic testing companies such as 23andMe and Ancestry.com collect and store DNA data, and these data can be sold to or accessed by third parties. For example, the terms of service for Ancestry.com permits targeted DNA-based advertising. The federal government does not appear to have formal data-sharing arrangements with private companies. However, there have been attempts by law enforcement to gain access to DNA data held privately in the past. Law enforcement can gain access to biometric data held by private companies through other means. For instance, in a case in Idaho, the police were able to run DNA found at a crime scene in 1996 against a database owned by Ancestry.com . After finding 41 potential familial matches, they were able to obtain a warrant to gain access to all information, including full names and dates of birth.
One proposal to counter this problem is the creation of a universal database, whereby everyone’s biometric information is collected and archived. A major disadvantage of this suggested solution is that, given the prevalence of data breaches, a universal database of DNA information that includes genetic information could open the door for the database to be coopted for genetic discrimination, or it could become a target for hackers looking to sell the sensitive information to the highest bidder. Much is still unknown about how genetic information will be used in policing in the future, but the systems that are being built now have few checks and balances built into them, and neither the public nor the regulators fully understand the technical mechanisms of these systems or the bureaucratic processes that surround them.
Besides the ways in which DNA technology is employed in surveillance, the rise of DNA technology in the private sphere raises concerns about privacy and employment discrimination. With advancements in DNA technology, DTC genetic testing has become socially acceptable as a means to discover both ancestry and propensity for disease. However, the databases amassed by DTC genetic testing companies represent attractive targets for hackers and thus pose risks to the consumer related to data breaches that could lead to privacy invasions and the sharing of such information in ways that aid employment discrimination.
Also, in March 2017, the House Committee on Education and the Workforce moved forward a bill (H.R. 1313), sponsored by Representative Virginia Foxx (R-NC), that enables employers to grant higher insurance premium discounts to employees who join employer-sponsored wellness programs wherein genetic information is collected from the participating employees. Several advocacy organizations have criticized the bill, particularly noting that it undermines privacy and employment discrimination protections for workers established by antidiscrimination laws such as the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act. The bill is now awaiting approval by the House Ways and Means Committee.
Ifeoma Ajunwa and Robyn Caplan
See also Biometrics ; Biosurveillance ; Crime Control ; Policing and Society ; Privacy, Right to ; United States v. Miller (1976)
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Smith v. Maryland, 442 U.S. 735 (1979).
United States v. Miller, 425 U.S. 435 (1976).