Imagine this: A teenage boy who just received his driver’s license is pulled over by a police officer because one of his car’s tail lights is out. While writing out the fix-it ticket, the officer asks the teen if he wants to provide a DNA sample. The young man, unaware that law does not require it, agrees. His DNA is now part of a private police database and will most likely be kept on file for years.
It’s a scenario that plays out fairly often across the US, according to a recent ProPublica investigation that revealed police in small towns in Florida, Connecticut, Pennsylvania, and North Carolina have been collecting ostensibly voluntary DNA samples from people who have not committed, and in some cases are not even suspected of committing, any particular crime.
The private databases that are operated by local law enforcement are separate from the FBI’s centralized, national DNA database network, commonly referred to as CODIS. In an article published in the Boston University Law Review in March 2015, University of Arizona law professor Jason Kreag noted that local databases like these were not subject to the regulation and federal laws that govern law enforcement’s use of the FBI’s national DNA network. That means that while national databases can only include individuals arrested for or convicted of crimes, local databases could (and typically do) include those who have voluntarily given DNA samples such as witnesses, crime victims, and family members of victims.
Local law enforcement agencies are also free to search these databases whenever they deem fit, unlike the national DNA database, which has strict use limitations. Because local police officers have complete discretion about who to target for voluntary DNA samples, racial and socio-economic profiling is an issue.
“The expansion of this surveillance tool at the local level has unleashed significant negative forces that threaten privacy and dignity interests, exacerbate racial inequities in the criminal justice system, and undermine the legitimacy of law enforcement,” Kreag wrote.
The potential for subtle coercion is strong. “We say voluntary, but if a police officer stops you for something and says ‘By the way, would you be willing to give a voluntary DNA sample?’ the first thing that would go through your mind is, well if I say yes will he not take me in,” says Henry T. Greely, professor of law and director for the Center for Law and Biosciences at Stanford University. “It’s a pretty artificial sense in which that is voluntary.”
ProPublica reports that the collection method for these private databases is usually the same across towns: police departments ask for a cheek swab during traffic stops. That’s bad enough when the driver is an adult. But in many cases, reports ProPublica, minors are giving consent for the swabs when they don’t even know what it is they are really consenting to. “We’re not going to be walking down the street and asking a five-year-old to stick out his tongue,” Heath Sanders, the head of investigations at the Melbourne (Florida) Police Department, told ProPublica. “That’s just not reasonable. But let’s say a kid’s 15, 16 years old, we can ask for consent without the parents.”
It’s been going on for over a decade, reports ProPublica, and by now some towns have have assembled significant databases that their police forces are using to investigate even minor crimes such as vandalism. In some places, like Bensalem Township, Pennsylvania, growing private DNA databases have been credited with helping investigations, reducing burglaries substantially and clearing the names of those wrongly convicted of crimes.“It’s a pretty artificial sense in which that is voluntary”
While all 50 US states mandate the collection of DNA from people convicted of felonies, requiring the DNA from someone who is arrested is a recent development. In June 2013, the US Supreme Court ruled that police officers are authorized to take DNA samples from people arrested in connection with serious crimes, even if they have not been convicted. The court said that using an arrestee’s DNA was an identification method akin to fingerprinting and photographing and “reasonable under the Fourth Amendment.”
The 5-4 ruling was far from unanimous. Justice Antonin Scalia, in his dissent, wrote that the ruling was not in line the Fourth Amendment, which prohibits searches without reasonable suspicion to gather evidence about an unrelated crime. “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” he wrote.
The decision also left the definition of “serious offense” ambiguous. “The court is talking about serious offenses in this case, but they don’t say what counts as a serious offense or whether they’d reach the same result for a nonserious offense,” Orin Kerr, a law professor at George Washington University and a Fourth Amendment specialist, told NPR.
Meanwhile, police are allowed to ask for voluntary DNA samples while investigating a case, but consensual DNA collection is such a new practice that “the laws and the legislatures just haven’t caught up,” University of Arizona law professor Jason Kreag told ProPublica.
One of the highest rulings about voluntary DNA collection so far came from Maryland’s Court of Appeals last August when it decided that law enforcement was permitted to use DNA collected during one investigation to solve another crime. As long as the donor does not expressly limit his or her consent, the DNA sample can be used to investigate other crimes without a court order, the court said.
Those who volunteer a DNA sample “will face a certain knowledge that, even if not suspected or convicted of a crime, the police can, and will, hold on to their DNA profile forever, and may compare it at any time for any or no articulable reason,” wrote Judge Glenn Harrell, in a dissenting opinion.“The system is one that is highly open to abuse”
Meanwhile, local law enforcement’s expanding use of DNA and the lack of regulation have unsettled civil rights advocates concerned about privacy and the nature of consent. “The reliance on consensual samples as opposed to legally coerced samples—e.g., from arrestees or convicted individuals—renders it important for regulations to address under what circumstances law enforcement should be able to request a consensual sample,” wrote Kreag in his 2015 paper. State and federal law, he argues, must regulate in what specific cases local law enforcement can approach people for voluntary DNA samples, and should ensure that force officers have to disclose that they are adding the profile to law enforcement’s database.
Greely has concerns about possible misuse of information from DNA profiles collected consensually. “If states want to participate in the FBI database, there are limits set by federal law on what they can and can’t do,” he says. “As it gets smaller and more local and under less control the possibility that somebody will be using it to just snoop around for completely unofficial reasons becomes a bigger concern.”
DNA profiles in the FBI database are limited to a certain set of markers that do not tell you much other than the person’s identity. But local authorities that are not bound by those limits would be able to search the database for things such as disease predisposition. In other words, if a local town official wanted to look to find everybody who had sickle cell anemia in the database, they could.
“People don’t know [local DNA databases] exist,” Greely says. “The system is one that is highly open to abuse and one that has probably survived because no one has really paid attention to it.