TRI In The News

If You've 'Done Nothing Wrong,' You Still Need to Worry

From WND

If you’ve done nothing wrong, police and other law enforcement don’t worry you, right?

They should, according to an analysis today of a U.S. Supreme Court decision that said police can take a DNA sample after an arrest to see if it matches any samples from unresolved crimes in a database.

The concern is that if taking DNA samples from those who are not convicted is justified, it also would be permitted to take DNA samples from anyone who flies on an airplane, applies for a driver’s license or attends a public school, according to John Whitehead, a constitutional expert with the Rutherford Institute.

The opinion for the five-justice majority, written by Anthony Kennedy, said taking and analyzing a cheek swab of the arrestee DNA is “like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

The four judges who disagreed warned of the consequences.

“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,” Justice Antonin Scalia said in a dissent.

More than two dozen states and the federal government now take DNA swabs after arrests. But a Maryland court said it was illegal for officials to take Alonzo King’s DNA without a warrant from a judge.

That state court said King had a “reasonable expectation of privacy against warrantless, suspicionless searches.”

He had been linked to a decades-old criminal case through the DNA swab.

The Supreme Court now has reversed that.

Kennedy was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined in dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The controversy was over whether police could take the samples before a conviction or without a judge’s warrant.

Whitehead called the decision a “devastating ruling.”

“Any American who thinks they’re safe from the threat of DNA sampling, blood draws, and roadside strip and/or rectal or vaginal searches simply because they’ve ‘done nothing wrong,’ needs to wake up to the new reality in which we’re now living,” he wrote.

“As the Supreme Court’s ruling in Maryland v. King shows, the mindset of those in the highest seats of power – serving on the courts, in the White House, in Congress – is a utilitarian one that has little regard for the Constitution, let alone the Fourth Amendment. Like Justice Scalia, all I can hope is that ‘today’s incursion upon the Fourth Amendment’ will someday be repudiated,” Whitehead said.

“As I document in my new book, ‘A Government of Wolves: The Emerging American Police State,’ our freedoms – especially the Fourth Amendment – are being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation,” Whitehead wrote.

“Now, thanks to the U.S. Supreme Court’s devastating decision in Maryland v. King – in which a divided Court determined that a person arrested for a crime who is supposed to be presumed innocent until proven guilty must submit to forcible extraction of their DNA – you can add invasive DNA sampling to the list of abuses being ‘legally’ meted out on the long-suffering American populace.”

He said the court once again sided “with the guardians of the police state over the defenders of individual liberty.”

Whitehead said the only “glimmer of reason” in the case was from Scalia, “who wasted no time dispatching the court’s dubious claim that DNA is necessary for suspect identification. Scalia was joined in his biting dissent by the three female justices on the Court (Ginsburg, Sotomayor, and Kagan).”

“As the minority opinion pointed out, Maryland actually took a full three months to test King’s DNA before handing the DNA over to the FBI to be matched against a database of unsolved crimes (that is, crimes in which the suspect has not been identified). Clearly, the state’s intention was not to identify King, but to potentially implicate him in a crime other than the one for which he was accused.”

He continued: “As disheartening as this ruling is, it is simply one more volley in a long line of attacks on our right to be free from unreasonable searches and seizures by government agents. In the past few years, the Supreme Court has determined that freedom from unreasonable government intrusion, a core component of the United States Constitution, is of little importance in an age of surveillance and security at any cost.”

Other precedents Whitehead cited:

“It’s OK for police officers to use excessive force as long as they don’t know that the Constitution prohibits them from doing so.”
“In an effort to make life easier for overworked jail officials, they can strip search anyone brought in, under any pretext.”
“Police officers can break into homes, without a warrant, even if it’s the wrong home as long as they think they have a reason to do so.”
“The sensibility of police dogs trumps the Constitution. In Florida v. Harris a unanimous Court declared roadside stops to be Constitution-free zones where police may search our vehicles based upon a hunch and the presence of a frisky canine.”
“This is what one would call a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. This latest wound proves that there really is nothing standing between the American people and the police state which has slowly grown up around our society,” Whitehead wrote.

WND recently reported that the federal government also is trying to convince consumers to trust government agents with DNA.

WND reported when the U.S. government released a report called “Privacy and Progress in Whole Genome Sequencing” by the Presidential Commission for the Study of Bioethical Issues.

Its goal was to “find the most feasible ways of reconciling the enormous medical potential of whole genome sequencing with the pressing privacy and data access issues raised by the rapid emergence of low-cost whole genome sequencing.”

The chairman, Amy Gutmann, said without the cooperation of millions of Americans the research will falter and possibly fail.

“The life-saving potential of genome sequencing depends on gathering genetic information from many thousands (perhaps millions) of individuals, most of whom will not directly benefit from the research,” she said.

“Those who are willing to share some of the most intimate information about themselves for the sake of medical progress should be assured appropriate confidentiality, for example, about any discovered genetic variations that link to increased likelihood of certain diseases, such as Alzheimer’s, diabetes, heart disease and schizophrenia.”

She warned that without assurances in place, “individuals are less likely to voluntarily supply the data that have the potential to benefit us all with life-saving treatments for genetic diseases.”

The commission’s report found that current procedures vary. Some states have reliable methods to protect privacy, but others have holes in their systems.

“In many states someone could legally pick up a discarded coffee cup and send a saliva sample to a commercial sequencing entity in an attempt to discover an individual’s predisposition to neurodegenerative disease. The information might then be misused, for example, by a contentious spouse as evidence of unfitness to parent in a custody case. Or, the information might be publicized by a malicious stranger or acquaintance without the individual’s knowledge or consent in a social networking space, which could adversely affect that individual’s chance of finding a spouse, achieving standing in a community, or pursuing a desired career path,” the report said.

The fact that cooperation will be needed from many is not the issue.

“Realizing the promise of whole genome sequencing requires widespread public participation and individual willingness to share genomic data and relevant medical information,” said commission vice chair James W. Wagner. “In other words, scientists and clinicians must have access to data from large numbers of people who are willing to share their private information.

“This, in turn,” he said, “requires public trust that any whole genome sequence data shared by individuals with clinicians and researchers will be adequately protected.”

WND also previously reported on disputes over DNA data, including a case in Minnesota in which the state was warehousing the DNA of all newborns.

Ultimately, the state Supreme Court gave privacy advocates a huge victory over their state government, deciding state law does not allow Minnesota’s health agencies to take, keep and use the blood spots without restriction that include DNA data for each child .

The state had argued that officials were entitled to the information and could use it for outside studies as they chose.

The case had been brought by nine families with 25 children. The Citizen’s Council for Health Freedom, which monitored the case’s progress since it was launched, had expressed concern about the possible eugenics influences that could result from inappropriate use of DNA data.

President Twila Brase said at the time, “When our organization discovered the state health department’s baby DNA warehouse in 2003 and the use of newborn DNA for genetic research without parent consent, we determined to do all that we could to stop this practice. No state law expressly permits these activities.”

She said, “We are pleased that these nine families were willing to sue the state of Minnesota. Their action and this decision now secures the genetic privacy rights and informed written consent rights of all Minnesota parents and newborn citizens.”

The ItsMyDNA.org website posts information for citizens, especially parents of newborns, to show what their own state does regarding the acquisition, maintenance and use of babies’ DNA.

She said there are 18 states that keep such information from 10 years to indefinitely.

“We know at the federal level, researchers want the states to become the steward of these blood spots,” she warned. “We’re saying that this DNA is the property of the children and the state doesn’t have a right to claim ownership.”

She continued, “We are not government subjects of research by virtue of being born, and our DNA is not government property.”

In a previous report, Brase warned that the accumulation of DNA data on entire generations of the population could result in unwelcome actions.

“Suppose … expanded screening of an infant reveals not a fatal and incurable disease but instead a host of genetic variants, each of which merely confers elevated risk for some condition or other,” her report said. “Who is to say at what point an uncovered defect becomes serious enough to warrant preventing the birth of other children who might carry it? At what point have we crossed the line from legitimate family planning to capricious and morally dubious eugenics?”

WND reported Brase’s report said the concept of “identifying” those who would be “unsuitable” for reproduction is enough reason for parents to be alarmed.

Her report said most parents “have no idea that government is doing the testing or retaining the data and DNA.”

“It is not hard to imagine the day when any discovered but nonsymptomatic condition could become a ‘pre-existing condition’ for which private insurers would not pay. The eugenic implications are obvious. Thus, the growing collection of genetic test results and newborn DNA could easily enable a eugenics agenda on the part of government agencies and private industry,” the report said.

WND also reported the state of Texas forwarded the DNA from hundreds of newborn babies to a military database without parental permission or knowledge.

The Texas Tribune, an online publication founded by a former editor of the Texas Monthly and a longtime owner of the Texas Weekly, had published a story about the Department of State Health Services in Texas giving some 800 DNA samples to the Armed Forces Institute of Pathology’s DNA Identification Laboratory.

The actions were uncovered as part of the publication’s review of nine years’ worth of emails over the collection of babies’ DNA, which recently was targeted by a lawsuit.

WND reported late last year that the dispute was settled out of court, providing a victory for genetic privacy.

According to the Tribune report, Texas officials routinely collected blood spots to screen for health issues. Then around 2002, officials started storing the blood spots on cards at Texas A&M University.

But officials never obtained parental permission and found themselves targeted by a lawsuit over their actions.

The Tribune reported that in addition to storing the blood spots, the state gave 800 samples – from which it removed identifying labels such as names and dates – to the military operation.

Brase said at the time there remain concerns, “This is the government. This is what people forget. This is the government planning to create a DNA warehouse of citizens.”