It seems that new discoveries about DNA, and our own human genome in particular, are coming more rapidly today. More things seem to exist on a scale of genetic variance, and it was recently found that our so-called “junk DNA” is full of important ramifications for genetic disorders and random mutations that determine our evolutionary fate.
But in a more immediate sense, DNA research may raise dire questions and have important bearing on current legal arguments, such as the Ninth Circuit‘s Haskell v. Harris, a case challenging California’s warrantless DNA collection program.
EFF asked the court to consider ground-breaking new research that confirms for the first time that over 80% of our DNA that was once thought to have no function, actually plays a critical role in controlling how our cells, tissue and organs behave.
The government has argued in caseaftercase (pdf) challenging DNA collection that the 13+ genetic markers that make up a person’s DNA profile1 are, in effect, “junk” and provide no more information than a person’s fingerprint. However, the ENCODE research reinforces the points we’ve made multiple times before—that DNA—whether it is in the form of a full genetic sample or an extracted profile—can reveal an extraordinary amount of private information about you, including familial relationships, medical history, predisposition for disease, and possibly even behavioral tendencies and sexual orientation.
EFF has filed briefs in Haskell and several other cases challenging DNA collection from arrestees, arguing this kind of warrantless seizure and search violates the Fourth Amendment. The U.S. Supreme Court has held that, subject to only a few exceptions that don’t apply here,warrantless searches “are per se unreasonable under the Fourth Amendment.” The Fourth Amendment is designed to protect against laws that give “police officers unbridled discretion to rummage at will among a person’s private effects,” because searches that aren’t tied to finding evidence of the crime at issue “create a serious and recurring threat to the privacy interest of countless individuals.” It doesn’t matter if there is a possibility that the search will reveal something incriminating or useful in solving past or future crimes, the cops still can’t search through our private things without a warrant.
These concerns apply with equal force to government DNA collection programs, which allow the government to obtain sensitive and private information on a person without showing that the data collected is tied to a specific crime. Thanks to changes in the laws to allow DNA collection from arrestees, federal and state DNA databanks have expanded exponentially over the last several years. The FBI’s federal CODIS DNA database now contains over 11.4 million DNA profiles, and nearly 2 million of those came from California.
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