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Its illegal to require any DNA
Finally, the New York Times article cites a Pennsylvania law enforcement expert as saying thatninety percent of the people asked by the police agree to provide a DNA sample. Many people do not know they are allowed to refuse and do not understand that their DNA will be held indefinitely in local and maybe even national criminal databases.
The ACLU describes law enforcement DNA testing as the “nuclear weapon of identifying technologies,” and says, “It can reveal much more – and more intimate – information than simply our identity, including our propensity for certain diseases, our family members, and our ancestry.” DNA can reveal inherent susceptibility for alcoholism or drug use and even suggest sexual preference. People who contribute DNA to police collections are also putting family members at risk of arrest, as police are using the technology to track suspects through their DNA family ties.
I have often written that law enforcement officers will take as much leeway with our Constitutional rights as we give them. Unless our legislature puts limits on what can be done with Rapid DNA machines and how DNA databases are collected and used, police will push these technologies farther and farther until we have no right to keep our DNA private at all.
The problem with the Supreme Court’s Fourth Amendment subject test of a “reasonable expectation of privacy” is that, once we expect the police can see everything, then we have lost all our privacy. How can you reasonably expect privacy when you know that the local police are storing your DNA and can use it for any purpose? See my 2015 talk at RSA on “The Gasping Death of the Reasonable Expectation of Privacy” for more details. Unless we place common sense restrictions on new law enforcement technologies, we cannot expect any privacy at all. And if we can’t expect it, the courts, under the current set of rules, will not protect it.
So, what sort of protections might be passed to regulate use of Rapid DNA by local police forces? We could force police to bring a warrant to take and test a person’s DNA if the person does not voluntarily provide it. Currently, police can root through trash cans or collect drinking containers to capture DNA without ever telling the data test subject. The Supreme Court will not let police compel you to identify yourself or show ID in public without a reasonable suspicion that you have done something illegal. So why should they receive a Constitutional “back door” to the same information just because you were drinking a coke and left the can behind?
We could also pass legislation stating that if a person voluntarily provides DNA to police, that DNA cannot be used for research on family members without express permission. We could simply require disclosure of specifically how DNA may be used prior to collection, and if a method or practice is not disclosed, then that DNA sample cannot be used for that particular purpose.
Or we could simply limit what can be done with a sample once analyzed. The police claim they buy these machines for the purpose of seeking investigative matches to DNA found at crime scenes, so we could pass a law limiting the use of Rapid DNA readings to crime scene matching and nothing else without a warrant. This would prevent the misuse of DNA for determining characteristics of the people described by the sample.
Cities and states are considering and passing legislation to restrict the use of facial recognition technology. It seems to me that you offer your face to everyone every day, but your DNA, which can tell much more about you, is a secret that the founders would have chosen to protect if they knew it existed and how much information it contained. But few legislators are introducing DNA protection laws before it is too late and we are all included in police databases, criminal or not.
https://www.natlawreview.com/article/why-we-are-losing-our-dna-privacy-rights-and-what-legislators-can-do-to-save-them