Thursday, March 22, 2007

"Abandoned" DNA

Police DNA Collection Sparks Questions, Wash. Post (AP), 3/17/07, discusses cases where the police gather DNA that a suspect has "abandoned" -- for instance, by spitting on the sidewalk or allowing one's plate and flatware to be cleared after eating in a restaurant. The DNA profiles may clear cold cases, but what of the privacy concerns?

The newspaper article quotes UC Davis law professor Elizabeth Joh, the author of Reclaiming 'Abandoned' DNA: The Fourth Amendment and Genetic Privacy, 100 Nw. U. L. Rev. ___ (2006), available at SSRN: The abstract:

We leave traces - skin, saliva, hair, and blood - of our genetic identity nearly everywhere we go. Should the police be permitted, without restriction, to target us and to collect the DNA that we leave behind? In a growing number of instances, the police, unburdened by criminal procedure rules, seek this abandoned DNA from criminal suspects in hopes of resolving otherwise unsolvable cases. Abandoned DNA is any amount of human tissue capable of DNA analysis and separated from an individual's person inadvertently or involuntarily, but not by police coercion. What are the consequences of allowing this investigative method to remain unregulated? In stark distinction to the growing body of commentary on the collection of DNA samples for state and federal DNA databases, little attention has been paid to this backdoor method of DNA collection.

Deciding whether DNA might ever be abandoned is important, because abandoned DNA provides the means to collect genetic information from anyone, at any time. Criminal procedure law poses no restrictions on this kind of evidence collection by the police. Not only does the label of abandonment affect police behavior, it also raises basic questions about the changing nature of legal identity. How should we characterize the relationships between our physical bodies and our identities, now that nearly any body particle can reveal our genetic information? The final part of this Essay proposes first steps towards addressing the problem, but its primary task is to show the need to reframe the debate over covert involuntary DNA sampling and to make the case for genetic exceptionalism.

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