DNA legislation: how the courts view your identity.

As part of a job application last month I wrote a draft blog post about DNA legislation. I thought I would put it here for posterity’s sake:

Last month the United States Supreme Court made a ruling that was in direct opposition to the European Court of Human Rights. The ruling, bought by the case ‘Maryland vs King’, was in regard to the collection of DNA of those in custody. It held that ‘taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment’. In contrast, the case ‘S and Marper v United Kingdom’, brought to the European Court of Human Rights in 2008, ruled that DNA collection of those in custody was in direct breach of Article 8 of the European Convention on Human Rights, which guarantees ‘the right to respect for his private and family life, his home and his correspondence’. In the ruling the

European Court said Article 8 ‘would be unacceptably weakened if the use of modern scientific techniques in the criminal justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests.  This disagreement between the courts highlights the ethical ambiguities that have arisen from the widespread adoption of DNA databases in the last 15 years.  Where should we draw the line between the state’s duty to maintain law and order and the individual’s right to privacy?

DNA can be immensely helpful when combatting crime. Due to the unique genetic fingerprint of each individual, DNA testing is used for identification. If an individual leaves their DNA at the scene of a crime (for instance from a strand of hair), the police can sequence this information and compare it to an existing database.  If the individual’s DNA is already recorded on the database, the match reveals a very high level of proof that they were at the scene of the crime. This means that if the police had a sample of every citizen’s DNA in a database they would be much more effective at solving crimes. All they would have to do is arrive at the crime scene, take DNA samples and question everyone who was a match. It is therefore hardly surprising that the home secretary Jacqui Smith was ‘disappointed by the European court of human rights‘ decision’ because ‘DNA and fingerprinting is vital to the fight against crime’. However what Smith failed to acknowledge is that there is a trade-off between fighting crime and privacy. Having a collection of every citizen’s DNA would help police investigations, but it would be a massive invasion of privacy. Even the most lax interpretation of Article 8 would not be able to justify the state taking a mandatory DNA sample of every citizen, so there is a legal boundary to draw.

Most countries that have a DNA database agree that a convict is obliged to provide a sample of his DNA to the state. Countries differ on which convicts are required to provide a sample (for instance in Sweden convicts with a jail term longer than 4 years are required to provide a sample, whereas in Russia people who are convicted of ‘serious crimes’ are added to the database), but there is a consensus that once a person is convicted of a crime, their right to keep their DNA private is waivered. The reasoning is that people who are convicted criminals are more likely to reoffend, so having a database of convict’s DNA means that if they were to reoffend in the future, the police would find it much easier to match their DNA to the crime scene. Therefore after the criminal has served their time, their DNA will still be on the database. Having convicts’ details on databases is not new:  an obvious example is the sex offenders register. There is a strong argument that it is in the public good that these databases exist, especially for crimes that have a high rate of re-offense (for instance rape and voluntary manslaughter).

We have seen how the state can justify taking convicts’ DNA but not that of innocent civilians. What about people who are charged with a crime but not convicted? This is where the European Court and the Supreme Court disagree. In the context of those charged, it becomes a matter of whether the court regards DNA as identity or property.  

DNA’s status as an identifier is immediately obvious. As it is highly discriminatory it can be used to distinguish people with unparalleled precision. When an individual is charged with a crime, the police have a right to take their identity and store it. Currently this is in the form of photographs and fingerprints. One of the reasons for doing this is to help the prosecutor build a case. They can use photographs to get witnesses and if the fingerprints match those of the crime scene, there is additional evidence against the defendant. DNA can be viewed in the same way. If one takes the DNA of the defendant and matches it with that of the crime scene, the prosecution has a stronger case. South Africa, Australia and the United States view DNA in this way.  As the Supreme Court said, it is ‘a legitimate police booking procedure that is reasonable under the Fourth Amendment’.

There is however another way of viewing DNA. While it is a powerful identifier, storing a mass amount of it means that the state is a capable of using an individual’s DNA for purposes other than aiding the investigation at hand. As most countries store DNA samples of unsolved crimes, it is possible to cross-reference an individual’s DNA with all previous crimes to see if there is any match. Therefore when the police take a defendant’s DNA, they can not only use it to further their current case: they can also easily discover any other charges which may be brought against the accused. With modern database technology this is both straightforward and effectively instantaneous – a very significant change from manually checking fingerprints against paper records. While this has potential benefits, it is open for abuse (for instance by individual police officers or corrupt states).

Treating DNA as property is a way of protecting the rights of the individual against such abuses. If the police suspect someone of storing a large amount of Class A drugs in their house, they can apply for a warrant from a judge to search the property. If during the search a dead body is discovered, the police have every right to file charges against that individual for murder. Although Article 8 and the Fourth Amendment protect the individual from unnecessary police surveillance, the police must have the ability to pursue evidence of crimes they come across. DNA cross-referencing can be viewed in the same way. If the police have reasonable suspicion that an individual has committed a crime in the past they are allowed to run that person’s DNA through their database. If they find DNA evidence linking the accused to a different crime then they may open a new investigation, but a judicial warrant was required to search the database in the first place. This is the view that the European Court took, emphasising the need of ‘carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests’.

Technological advancements in the last 15 years have made it possible for the state to use new, effective techniques for fighting crime, but they have also raised serious questions about privacy and the extent of our rights. Unless these issues are discussed and challenged by the public, there is a danger that the state will adopt these techniques without the consideration they deserve. 

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