ACLU opposes 'genetic profiling' DNA bank sweeps put innocent under surveillance
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By Peter Hirschfeld Vermont Press Bureau - Published: November 16, 2008
MONTPELIER – Lawmakers say a proposal to expand the state's DNA database will better protect Vermont residents from violent criminals. But a civil liberties group argues that culling genetic samples from people not yet convicted of any crime could compromise rights to privacy guaranteed under the Vermont Constitution.
The Senate Judiciary Committee earlier this week issued a formal proposal to begin collecting genetic samples from people arraigned of felony crimes. Such a law would broaden the scope of Vermont's existing legislation, which requires DNA samples only from people actually convicted of felony crimes.
"I feel strongly this would be a helpful tool," said Sen. Dick Sears, chairman of the Senate Judiciary Committee.
Prosecutors in the state had requested genetic samples from anyone even arrested of a felony crime; the Senate instead set the threshold at arraignment – the point at which the courts have found probable cause that a crime has been committed.
Still, the Vermont ACLU worries that the law might impinge on privacy protections, and says rapidly evolving uses of the nation's DNA database could subject innocent citizens to unjust surveillance.
"What if a person is arraigned and ends up being exonerated? Or arraigned on a felony and then convicted of a misdemeanor?" said Allen Gilbert, head of the Vermont ACLU. "Will the DNA sample be destroyed?"
Gilbert has other concerns, including potential misuse of genetic information, as well as the emergence of so-called "familial searches," whereby police use partial matches on the genetic database to question family members of people in the database.
At the Vermont ACLU's annual conference Saturday, a national expert on DNA use and misuse delivered a speech detailing the pitfalls of expanded genetic databases. Tania Simoncelli, the national ACLU science advisor, said the creation of the databases have set the country "on a very slippery slope."
What began in the late 1980s as an investigative tool – police would compare the DNA of their suspect to DNA found at the crime scene – has since transformed into a massive surveillance operation. Genetic databases, the first of which cropped up in the 1990s, initially contained only samples from violent convicts. Simoncelli said they now include more than 6 million individuals, many of whom have never been convicted of anything.
"It has launched us into an entirely new era of forensic DNA that can be characterized as an era when innocent people … are getting roped into the criminal justice system by way of their DNA," Simoncelli said.
Proponents of DNA databases call genetic profiling a modern version of fingerprinting, and say the information is used merely for identification purposes. But Simoncelli said most states preserve the initial DNA sample even after the "profile" – or identifying genetic characteristics – have been entered into the database.
The information can be used to determine predisposition for certain medical conditions, and, according to Simoncelli, remain in storage for perpetuity. Though laws in some states attempt to prevent any misuse of the samples, Simoncelli says the legislation is "murky at best" and ought not be considered an adequate safeguard.
Simoncelli also argued that studies indicate broadening DNA databases does little to solve crimes. In the United Kingdom, which has since 2002 uploaded the genetic data of all arrestees, the DNA database has doubled in the last six years.
"But crimes solved by the database have actually fallen slightly," Simoncelli said. "An over-reliance on DNA might undermine criminal justice."
Vermont's existing legislation, passed in 2005, requires genetic samples from anyone convicted of a felony (an earlier law, passed in 1993, required samples only from people convicted of certain violent felonies). Prisoners' rights advocates challenged the 2005 law in the Vermont Supreme Court, arguing it violates felons' constitutional protections against unlawful search and seizure.
In a 3-2 decision, the justices upheld the law, saying felons, by virtue of their conviction, give up certain privacy rights.
Both Gilbert and Sears said it's likely that the proposed legislation, if passed, will face a similar court battle. The Senate proposal would also include people convicted of any misdemeanor that would land them on the state's sex offender registry.
"I wouldn't be surprised if there is some challenge," said Sears, who noted that DNA databases have as much potential to exonerate innocent people as to convict guilty ones. "But we think it'll pass constitutional muster, and that's why we included it in our proposal."
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