We can’t go anywhere without leaving a bread-crumb trail of identifying DNA matter. If we have no legitimate expectation of privacy in such bodily material, what possible impediment can there be to having the government collect what we leave behind, extract its DNA signature and enhance CODIS to include everyone? Perhaps my colleagues in the plurality feel comfortable living in a world where the government can keep track of everyone’s whereabouts, or perhaps they believe it’s inevitable given the dangers of modern life. But I mourn the loss of anonymity such a regime will bring.
People constantly leave genetic material, fingerprints, footprints, or other evidence of their identity in public places. There is no subjective expectation of privacy in discarded genetic material just as there is no subjective expectation of privacy in fingerprints or footprints left in a public place.
—Justice Charles W. Johnson2
In 1974 Barbara Lloyd was raped and stabbed to death in her home in Buffalo, New York. Police had a suspect in Leon Chatt, the husband of the victim’s stepsister at the time of the murder, but no evidence to connect him to the crime scene. Over three decades later the police revived the case with DNA retained from the forensic evidence of the crime scene. Although police did not have enough evidence to obtain a warrant for a search, they followed Chatt around, picked up his DNA after he spat on the sidewalk, and compared it with the 30-year-old crime-scene sample. He was charged with and convicted of one of Buffalo’s oldest unsolved crimes in 2007.3
This is one example of a number of documented cases where police have collected DNA from individuals surreptitiously. Sometimes police have acquired these items by offering an individual a cigarette or a drink during an interrogation and then collecting the items afterwards; at other times police have simply followed individuals around without their knowledge, picking up items that they have discarded that might contain their DNA.
The presumption of law enforcement in these cases is that the practice of collecting and analyzing an individual’s DNA without his or her knowledge or consent is legal. Law enforcement’s primary argument in support of this position is that the DNA one leaves behind is “abandoned,” and furthermore, an individual who “abandons” his or her DNA no longer has any privacy interest in it or in the information it holds about that individual.
In the handful of state court cases that have considered this issue to date, law enforcement’s perspective on the use of so-called abandoned DNA has prevailed. The remainder of this chapter discusses one of these cases in detail and analyzes the implications for genetic privacy of law enforcement’s prevailing view on DNA collected surreptitiously.
State of Washington v. Athan
On November 12, 1982, the Seattle police found the body of a 13-year-old named Kristen Sumstad. The teenager had been stuffed into a cardboard box in the Magnolia neighborhood of Seattle after she was sexually assaulted and strangled. In their search for the perpetrator, the police had questioned John Nicholas Athan, whose brother they claimed saw John transporting a large box on a grocery cart around the time and in the neighborhood of the crime. When questioned, Athan told police that he had been in the neighborhood stealing firewood the night before Sumstad’s body was discovered. Police did not have enough evidence to charge Athan with the crime. The case went cold.
Twenty years later the Seattle Police Department’s Cold Case Unit sent biological evidence preserved from the crime scene to the Washington State Patrol Crime Laboratory. The laboratory investigators sequenced and profiled the crime-scene DNA that had been taken from the body of Sumstad and compared it with DNA profiles in the state and federal DNA data banks, but no match was found. The police then turned their attention to living suspects from two decades earlier, including Athan.
The police located Athan in New Jersey. Concerned that he might flee the country if they approached him directly, they created a ruse to get the suspect to give up his DNA. The detectives posed as lawyers from a fictitious law firm and wrote Athan a letter inviting him to be their client in a fabricated class-action suit filed against municipalities that overcharged on parking tickets. Athan believed that he could share in the settlement costs if they prevailed in the suit. The letter he received contained the names of a fictitious firm and the names of fictitious attorneys, which in actuality were the real names of members of the Seattle Police Department. Athan signed, dated, and returned the fabricated class-action authorization form and then licked the envelope and mailed it. It was then retrieved by the police, who removed the flap, photographed the contents, and had it tested for DNA from the residual saliva that was used to seal the envelope, all without a warrant.
The DNA profile from the envelope matched the DNA profile from the semen found at the crime scene obtained from Sumstad’s body. On the basis of these results the prosecutor obtained an arrest warrant for Athan. Once arrested, he was presented with a search warrant to obtain a sample of his DNA. When the sample was analyzed, police found that his DNA profile from the sample matched both the DNA profile obtained from the envelope and the profile taken from the semen left on the victim’s body.
Athan’s lawyers petitioned the court to suppress the DNA evidence and dismiss the case. They argued that the police had violated state law by taking his DNA without his consent or by court order. In addition, they argued that lawyers, not the police, were the intended recipients of the letter, and the police had violated state privacy law by opening a sealed envelope that was intended for another person. Finally, they argued that posing as a lawyer was a crime under state law, and therefore any information the police acquired under that ruse should be disqualified. The trial court rejected each of these motions, and Athan was found guilty of second-degree murder and sentenced to 10 to 20 years in prison.
The case was brought before the Supreme Court of the state of Washington. In its decision, dated May 10, 2007,4 the court examined two questions: (1) whether Athan’s DNA was collected in violation of either the state or the federal constitution; and (2) whether the actions of the police detectives were illegal and unfairly prejudiced his right to a fair trial.
In a majority opinion signed by five justices, the court concluded that the surreptitious taking of Athan’s DNA violated neither the state nor the federal constitution. Washington State’s Constitution, which guarantees that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law,” is known to provide greater protection than the Fourth Amendment. Although the state did not deny that one’s DNA is normally part of one’s “private affairs,” it argued that Athan had no privacy interest in the DNA he left on the envelope both because he voluntarily abandoned it when he licked the envelope and mailed it to a third party and because DNA obtained from saliva is “voluntarily exposed” to the public just like appearance and physical description. The court agreed:
We find there is no inherent privacy interest in saliva. Certainly the nonconsensual collection of blood or urine samples in some circumstances . . . invokes privacy concerns; however, obtaining the saliva sample in this case did not involve an invasive or involuntary procedure. . . . The facts of this situation are analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray. We hold under these circumstances, any privacy interest is lost. The envelope, and any saliva contained on it, becomes the property of the recipient.
Furthermore, in direct response to the argument put forth in an amicus brief of the American Civil Liberties Union of Washington,5 the court found that although DNA has the potential to reveal a vast amount of personal information, the state’s use of Athan’s DNA was narrowly limited to identification purposes.
In examining whether Athan’s rights were violated under the Fourth Amendment, the majority of the court wrote:
There is no subjective expectation of privacy in discarded genetic material just as there is no subjective expectation of privacy in fingerprints or footprints left in a public place. . . . The analysis of DNA obtained without forcible compulsion and analyzed by the government for comparison to evidence at a crime scene is not a search under the Fourth Amendment.6
The opinion concluded in no uncertain terms: “No recognized privacy interest exists in voluntarily discarded saliva and a legitimate government purpose in collecting a suspect’s discarded DNA exists for identification purposes.”7
The court was also not particularly concerned about the approach used by the police to obtain Athan’s DNA sample: “We find there is no absolute prohibition of police ruses involving detectives posing as attorneys in the State of Washington.”8 Furthermore, the use of the ruse was “not so outrageous as to offend a sense of justice or require dismissal of the case,” in particular, because it was not used in an attempt to gain “confidential information” and because “public policy allows for some deceitful conduct and violation of criminal laws by police officers in order to detect and eliminate criminal activity.”9
The 6–3 decision in Athan came as a shock to many privacy advocates. Washington State is known to have strong privacy protections. Article I, section 7, of its constitution is decidedly more protective of individual privacy than the Fourth Amendment. As described in the dissent in Athan, it protects objective expectations of privacy, as opposed to subjective privacy expectations that may be influenced by well-publicized advances in surveillance technology. Prior tests of Washington’s privacy laws had rejected compelled testing of DNA to determine paternity, as well as compelled blood testing as a requirement for government employment. The court had also held that the government cannot, without a warrant, use a Global Positioning System (GPS) device to track a person’s movement in a car,10 use an infrared heat device to view a person’s activities inside the home,11 obtain long-distance telephone records by placing a pen register on a person’s telephone,12 or search the contents of garbage left on a curb for pickup.
In this last case, State of Washington v. Boland, the court found that an individual’s private affairs were unreasonably intruded on by law-enforcement officers when they removed garbage from his trash can and transported it to a police station in order to examine its contents for evidence of drug-related activities.13 This decision was in direct contrast to federal precedent. In California v. Greenwood the U.S. Supreme Court had held that under the Fourth Amendment no reasonable expectation of privacy exists in garbage that has been left on the curbside for collection. The Washington court found that the state constitution provided greater protection of the defendant’s privacy interest in this context and went against federal precedent for two reasons: (1) the fact that Boland had left his garbage at the curb (outside his home) had no bearing on whether the state had unreasonably intruded into his private affairs; and (2) the collection of garbage is necessary to the proper functioning of modern society and requires a person to reasonably expect that his garbage will be removed by a licensed trash collector, not indiscriminately rummaged through by the police; it would be improper to require that in order to maintain privacy in one’s trash that the owner would have to forgo use of ordinary methods of trash collection.
Following the reasoning in Boland, the court could have found in Athan that the state had intruded into Athan’s privacy in his DNA regardless of whether it was collected on his person or he had placed it in the mail or spat it onto the street. Furthermore, the court might have found that the “proper functioning of modern society” requires that an individual can walk about in the world or send letters through the mail without fear that his or her DNA might be picked up; it would be improper to require that we refrain from licking envelopes, walk around in a bubble suit, and stop disposing of personal items that might contain our DNA in order to protect our privacy.
How is it that instead, the court concluded that an individual has a greater expectation of privacy in his or her garbage than in his or her DNA? First, the court failed to distinguish the saliva sample from the DNA contained within the sample. The court found that an individual has “no inherent privacy interest in saliva.” One can agree or disagree on this point, but the privacy interest of concern was Athan’s DNA information, not his saliva per se. By focusing on the saliva and not the DNA in it, the court diminished Athan’s privacy interest.
Indeed, there is at least a growing consensus, if not near unanimity, among bioethicists, medical professionals, and policy makers that an individual’s DNA is a private matter. Our DNA can reveal both medical and nonmedical information, including inherited genetic disorders, predispositions (mutations that correlate with the onset of disease), familial disease patterns, environmental and drug sensitivities, parental linkages, ancestral identity, and sibling connections. Increasingly, scientists are hypothesizing about the possible and sometimes-dubious relationship between genes and behavior, for example, whether certain genetic markers make someone more prone to commit aggressive acts.14 It is precisely this consensus (i.e., that we are entitled to privacy in our DNA) that allowed Congress to pass the Genetic Information and Nondiscrimination Act (GINA) in 2008. This act prohibits insurance companies from requesting genetic information as a condition of hiring or enrollment, or using individual genetic information for hiring or enrollment decisions. (See chapter 14 for a detailed discussion of genetic privacy.)
The courts, too, have overwhelmingly agreed that the taking and analysis of DNA for purposes of identification is a search and therefore requires a warrant supported by probable cause. However, the courts have differed in why they have found this to be necessary. Some have focused entirely on the physical invasion associated with the forcible taking of the sample, either by drawing blood or swabbing the inside of a person’s mouth. Others have considered another kind of invasiveness that relates to the informational aspect of DNA and distinguish the taking of a DNA sample from that of a fingerprint. Unlike fingerprints, which reveal very little information about an individual and cannot readily be used for anything beyond identification, a DNA sample provides an almost unlimited amount of sensitive information about a person. The potential to access sensitive personal genetic information remains as long as the biological sample is retained (see chapter 14).
In Athan the court acknowledged the potential for DNA to reveal a lot of private information but then dismissed this concern simply because there was no evidence to indicate that the police had used Athan’s DNA for anything beyond identification. This seems shortsighted and contradictory. The issue is not what law enforcement did or did not do with Athan’s DNA in this one instance; it is what law enforcement can do once it has a person’s DNA in its possession. If one agrees that DNA can reveal highly private information about a person, then the only real way to protect against the potential misuse of DNA is to not collect it in the first place or to require that it be destroyed after an individual’s identification has been confirmed.
The court also adopted law enforcement’s argument that the DNA had been “voluntarily abandoned” or “discarded.” Since Athan sent his sample in the mail, and it was not extracted forcibly from him, his privacy was not invaded. This argument is problematic on several counts. First, “abandoned” implies a knowing intent to part with an item. In Athan’s case, although he may have knowingly abandoned his saliva in licking the envelope and sending it off, it is not at all clear that he knowingly abandoned the information contained within that saliva. Athan’s intent was to return a letter that was to be read by attorneys, in whom he placed his trust. His intent was not to send them his DNA. Athan may not have known that his DNA was contained in his saliva sample on the envelope at a level sufficient for DNA testing, or even that his saliva contained DNA information in the first place.
DNA is not so much voluntarily abandoned as it is inadvertently, but naturally, released from our bodies in the form of skin cells, saliva, and hair samples. How “voluntary” is it that we discard DNA every time we sneeze, urinate, or bleed from a scratch? Under the court’s reasoning in Athan, any and all DNA left behind by an individual is fair game for the police.
One justice recognized that regular shedding of DNA should not be considered an abandonment of privacy in it. However, this justice still concurred with the majority in concluding that Athan waived his privacy right when he placed the envelope in the mail. Athan’s act of sending the saliva through the mail was an abandonment of privacy in the saliva. By his reasoning, DNA picked up from a cigarette butt or spit, sweat drops, or hair strands left behind on the sidewalk should not be fair game for testing without a warrant, whereas items that come into possession of the police through the use of trickery should. This approach seems highly problematic, since it encourages law-enforcement personnel to engage in ethically questionable behavior any time they want to get a person’s DNA. If one has an expectation of privacy in his or her DNA, then it follows that the expectation will apply to any nonconsensual analysis of biological materials—whether acquired by entrapment or by following someone around. Either way, the analysis of the DNA is occurring without the knowledge or consent of the individual.
In a minority dissent, Washington Supreme Court justice Mary E. Fairhurst wrote a defense of Athan’s DNA privacy that was signed by two other justices of the court:
Because Athan’s DNA provided the government vast amounts of intimate information beyond mere identity, I would conclude that Athan has privacy interests in his saliva and DNA. In stark contrast to saliva, fingerprints, and other physical characteristics, one never exposes one’s DNA to the public. . . . The detectives intruded on Athan’s expectation of privacy without authority of law when they collected his saliva from an envelope based on a ruse and tested his DNA. Athan did not voluntarily relinquish his privacy interests in either his saliva or his DNA by licking the envelope and placing it in the mail.15
Beyond Athan: Revisiting Abandoned DNA
Whether it intended to or not, the Washington Supreme Court authorized a free-for-all with regard to the collection of DNA by law enforcement. By the court’s reasoning, police could follow people around and take their DNA without their knowledge or consent, for more or less any reason. As Elizabeth Joh at the University of California, Davis, states, this collection technique “is a backdoor to population-wide data banking”—the banking of genetic information from virtually anyone. Furthermore, this backdoor method of DNA collection is “in stark distinction to the growing body of commentary on the collection of DNA samples from prisoners and parolees for state and federal DNA databases.”16 Indeed, state legislatures and the courts have gone to great lengths to debate and develop a complex array of policies concerning when and under what circumstances law enforcement can collect DNA and from whom (see chapter 2). If police can take DNA surreptitiously, why would they ever bother to get a warrant to obtain someone’s DNA? And what would stop law enforcement from building a DNA data bank of suspicionless suspects for purposes of surveillance, completely outside the boundaries of the laws that currently govern our DNA data banks?
To date, no court has yet held police collection of “abandoned” DNA illegal. In the handful of other cases that have been brought to date, courts have adopted the notion that DNA collected from cigarette butts or coffee cups is “abandoned.” According to Joh, “Once DNA is considered abandoned or knowingly exposed, the Fourth Amendment does not apply at all.”17
If we wish to afford any protection to the genetic information contained in our DNA, we need to reframe the debate over surreptitious DNA collection and recognize that the trail of DNA that we leave everywhere we go is something other than “abandoned.” We “abandon” items we no longer wish to own or carry around. In contrast, we have no choice but to leave our DNA pretty much everywhere we go. Short of walking around in the world in a plastic bubble suit, it would be virtually impossible to refrain from shedding our DNA (see box 6.1).
DNA is routinely released from humans. We shed our skin on an ongoing basis. DNA is also released through urination, bleeding, and blowing one’s nose. As discussed in chapter 1, your DNA is found in each and every one of your skin cells. And only a few cells are needed to test your DNA.
Consider the following:
The average human loses between 40 and 100 hairs each day.a Between 30,000 and 40,000 dead skin cells fall from the human body every minute.b
From a single sneeze there are 3,000 droplets containing virus particles, bacteria, and both dead and live cells.c
c Diana Treece, “Tuberculosis,” InnovAiT 3, no. 1 (2010): 20–27.
Source: Authors.
Law enforcement’s treatment—and court acceptance—of DNA as “abandoned” could have spillover effects well beyond law enforcement. Currently there are no protections from private investigators or amateur investigators acquiring and analyzing a biological sample from an individual who is unaware of their motives.18 Robert Green and George Annas, writing in the New England Journal of Medicine, imagine a scenario where someone obtains an abandoned hair or saliva sample from a presidential candidate with the purpose of engaging in a form of “genetic McCarthyism.”19 That is, the stealth DNA could be used to disclose that the candidate has an increased risk of a disease. This scenario can be generalized to any individual who is a cultural icon for whom there is a high paparazzi value on personal, especially embarrassing, information offered to the media.
Unlike in the court in Athan, some other courts that have considered this issue have likened so-called abandoned DNA to trash.20 These cases have relied on the U.S. Supreme Court case California v. Greenwood, where, in contrast to the Washington State Supreme Court’s decision in Boland, the Court ruled that an individual does not have an expectation of privacy in garbage left on the curb since it is “knowingly exposed” to the public.21 But even if one accepts the Supreme Court’s reasoning, garbage is not a very good analogy to our DNA. When we leave our garbage on the street, we may very well know that someone might rummage through it. Over four decades ago a self-styled member of the 1960s counterculture yippie movement named A. J. Weberman rummaged through the garbage of folk legend Bob Dylan. Weberman, who coined the term “garbologist” to describe his obsession with acquiring any shreds of information about his folk icon, viewed Dylan’s garbage as a public, not a private, resource.
We expect and accept that the private information that might be contained in letters or bills can be accessed by virtually anyone who might come into contact with our garbage, which is why some people choose to shred personal papers and letters before disposal. But in contrast to letters tossed in the garbage, we cannot “shred” the DNA that continuously gets discharged from our bodies. While we can control what we choose to throw in the garbage, we cannot refrain from leaving our DNA everywhere we go.
The Supreme Court’s decision in California v. Greenwood was also premised on the notion that garbage can be picked up by any passerby and deciphered (the “common knowledge doctrine”). But DNA found in the garbage or on other abandoned property does not satisfy the “common knowledge doctrine” because only specialists can decipher it with sophisticated, uncommon equipment. One can argue that the loss of privacy for our trash extends to any ordinary person who can read, but the loss of privacy for our DNA only extends to a small group of specialists who can extract our DNA and analyze it, revealing information that we ourselves might not wish to know.
Joh suggests that perhaps garbage is not a helpful analogy for thinking about DNA that we leave behind. She suggests that more helpful comparisons might be found with body parts or human waste, although even these comparisons are limited, since even a tiny amount of DNA has the potential to reveal far more information about a person. Perhaps most helpful, she notes, would be to change the terminology by which we refer to the DNA that is collected without our knowledge or consent. Perhaps if we thought of law enforcement’s collection and use of this DNA as “covert involuntary DNA sampling,” we might see a change in the current passivity toward this issue. In Victoria, Australia, residents have called for laws banning “covert DNA sampling” by Victorian police, and in response, the attorney general of Victoria has promised to examine the “legal loophole” that currently allows police to collect DNA surreptitiously.22
Courts have been more protective of personal privacy when our private speech, objects hidden from view, or personal materials can be accessed only by individuals with special technology and are not open for everyone to see. In Kyllo v. United States the Supreme Court ruled 5–4 that the thermal imaging of the defendant’s home constituted a search under the Fourth Amendment and thus required a warrant. The majority of the court found that a person’s home is protected against warrantless searches by clever technologies that are not generally available to the public: “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ . . . constitutes a search—at least where (as here) the technology in question is not in general public use” (see box 6.2).23
BOX 6.2 Kyllo v. United States:
Technological Intrusion into Home and Body
In the early 1990s Danny Kyllo, who lived in a triplex home in Florence, Oregon, was suspected by an agent of the U.S. Bureau of Land Management (BLM) of growing and distributing marijuana from his residence. The BLM agent enlisted help from a member of the Oregon National Guard to conduct surveillance of Kyllo’s residence with a thermal imager, a device that can detect infrared heat emitted from the surface of an object. In this instance the thermal imager was used to measure infrared radiation being emitted from the walls of Kyllo’s home. The surveillance was conducted in a car on a public street simply by pointing the thermal imager at the walls of Kyllo’s home and comparing the output with the radiation emitted from neighboring homes.
In mid-January 1992 the BLM agent observed that higher levels of infrared heat were coming from Kyllo’s walls than from those of his neighbors. He inferred that this was because Kyllo was using high-intensity lamps to grow marijuana. Citing tips from informants, utility bills, and the thermal-imaging data, the BLM agent sought and received a search warrant from a federal judge. When agents entered Kyllo’s home, their suspicions were confirmed. The suspect had more than 100 marijuana plants. Kyllo was charged with and convicted of manufacturing marijuana.
Kyllo petitioned the court to overturn his conviction on the grounds that the warrant was granted under evidence from the thermal-imaging device that was unlawfully obtained and violated his privacy under the Fourth Amendment of the Constitution. The federal Ninth Circuit Court of Appeals rejected Kyllo’s petition, stating that he had shown no subjective expectation of privacy because he made no effort to conceal the heat escaping from his home. In 1994 the Ninth Circuit Court of Appeals reviewed the Kyllo case, focusing on whether the warrant used to search the home of Kyllo was based on knowingly and recklessly false information. The court reversed and remanded the decision of the district court, requesting that the court hold an evidentiary hearing on the capabilities of the Afema 210 thermal imager. Once again, the district court denied Kyllo’s motion to suppress the thermal-imaging evidence on the grounds that warrantless searches of homes with the thermal imager were permissible. Kyllo appealed again in 1998 to the Ninth Circuit, which found, in a 2–1 decision, that the use of thermal-imaging systems was unconstitutional. However, after the government petitioned for a rehearing, the case went back to the Ninth Circuit, where one judge retired and another replaced him. The decision this time was 2–1 against Kyllo on the grounds that the monitoring of heat emissions by a thermal-imaging system did not intrude on Kyllo’s privacy.
The key point before the jurists was whether a technological device allowed police to gain confidential information from a suspect (namely, that he was using intense heat lamps and growing marijuana) that they could otherwise have obtained only by physical entry into the person’s home. Does the use of this technology violate a person’s privacy interests? Does it constitute an unreasonable search? Are police subject to the constraints of the Fourth Amendment when they avail themselves of a technological device that functions as a surrogate for physical entry into one’s home? The case was argued before the Supreme Court on February 20, 2001, and decided on June 11 of that year. In a 5–4 decision the Court ruled that the thermal imaging of Kyllo’s home constituted a search and thus required a warrant.
Source: Authors.
Like a person’s home, one’s body falls within the protection of the Fourth Amendment. Therefore, it is not a stretch to apply the reasoning in Kyllo to DNA. The privacy interest associated with our DNA comes into play not so much in the form of the materials that we leave behind us, namely, the macroscopic objects such as coffee cups, which ordinary people can observe and identify, but only when those objects are scientifically analyzed for the molecular information contained within.
Any information that cannot be obtained by direct observation of an individual can be considered private unless the individual decides to make it otherwise. If police were to use a technology that would reveal information about what is contained in one’s wallet or pocket, it would follow from Kyllo that it should be considered a search as long as the technology is not available to everyone. The use of ordinary binoculars would not reach a threshold of breaching privacy under this standard. But subjecting a saliva sample to laboratory testing—which only those with specialized knowledge and with access to sophisticated equipment could carry out—perhaps should. As the use of a thermal imaging device invades the privacy of one’s home, so too does the use of PCR to glean information from one’s DNA breach the privacy of one’s body.
When we throw a cup or personal items in the trash, we do not expect that people with sophisticated knowledge and access to a genetic laboratory will detect and analyze our DNA, possibly revealing intimate information. It might be reasonable to say that we have no expectation of privacy for the abandoned object, but certainly we do have such an expectation of privacy for the information in the genetic material that sits on that object.
What does it mean to live in a world where one has to assume that DNA, which people shed on a continual and involuntary or uncontrolled basis, might at any time be picked up from discarded objects, extracted, and analyzed for information? Some legal scholars have accepted the default position that the information on shed DNA is not protected: “There is even a strong indication that suspects possess no ‘reasonable expectation of privacy’ in shed DNA cells, and thus law enforcement can easily gather such probative evidence without worrying about the individual’s Fourth Amendment rights.”24 Our examples and analogy call into question the default position that is the current practice.
Police point to individual success stories as a way of justifying surreptitious DNA collection as a “clever investigation technique.” But by allowing police to take our DNA without our knowledge or consent, we are opening the door to mass DNA collections of individuals vaguely suspected or not at all suspected of a crime. This could extend to private detectives and amateurs who have some reason to use surreptitious methods to collect and analyze someone’s DNA.25 Individuals now have no way of contesting this collection or the use of their DNA. This scenario becomes increasingly worrisome when it is coupled with developments in behavioral genetics; for example, genetic markers for aggression or addiction could provide justification for identifying these individuals before crimes are committed and subjecting them to social control, or as a reason to mete out a more severe punishment when they are convicted of a crime.26
The current dominant framework that assumes that DNA collected from coffee cups, cigarette butts, and saliva samples is “abandoned” means that police can pick up DNA anywhere, from anyone, and at any time. The lack of meaningful consideration of the full implications of this assumption is threatening to erode any and all privacy interest in our DNA. If we take seriously the notion that our DNA is a private matter, then we need to ensure that our bodily materials in which that DNA resides cannot be tested and mined without our consent. As Joh states: “While Fourth Amendment law may not appear to protect a privacy interest in the human tissue left behind as the detritus of our daily lives, it is far from obvious that people do not harbor a privacy expectation in genetic information that ‘society is prepared to recognize as reasonable’.”27 It is noteworthy that the United Kingdom has taken the first step in acknowledging DNA’s special privacy protections by banning ordinary citizens from analyzing “abandoned” DNA without the consent of the person(s) from whom it originated.