Privacy advocates say California’s Supreme Court justices put citizens’ most personal info at risk when they rejected an appeal Monday to strike down a law requiring all arrested individuals to provide DNA samples. Supporters of the ruling say concerns about the law, similar to statutes now in effect in 30 states, are overblown.
Ashley Spence was 19 when she was brutally raped, and almost killed, by an attacker who broke into her apartment at Arizona State University.
There was a pillow over her face the entire time, and afterwards the perpetrator got away, free to commit more heinous crimes.
The case remained unsolved for seven years until one day, the same man was charged with resisting arrest while breaking into another woman’s apartment. He was taken into the police station, and the inside of his cheek was swabbed for DNA. It matched the DNA found in Ashley’s rape kit.
Arizona is one of 30 states and the federal government that authorize the analysis of DNA samples collected from individuals arrested or charged, but not convicted, for certain crimes, reports the The National Conference of State Legislatures (NCSL).
Privacy advocates say the practice represents a violation of constitutionally protected rights and is part of an escalating trend in business and government to gather personal information. But one of the first major legal tests of the law failed this week in California.
California’s Proposition 69, passed in November 2004, required anyone arrested for a felony–even if they were not charged or convicted–to provide a sample of their DNA, for storage in CODIS, a database that collects federal, local and state forensics.
On Monday, the California Supreme Court, in a narrow 4-3 ruling, rejected an appeal to declare the law unconstitutional.
Spence was relieved. As far as she was concerned, Proposition 69 was how they tracked down the man who brutally assaulted her.
“You can have all the evidence there in the rape kit, but if you don’t have the arrestee’s DNA, you don’t have a match,” she told The Crime Report.
Spence noted that in some states with DNA requirements, a sample is only taken when someone is arrested for a violent crime.
The problem with that, she said, is you don’t know if the alleged perpetrator [of a less violent offense] will go on to commit more serious crimes.
“If that hadn’t happened to the man who assaulted me, many more women could’ve been raped,” she said.
But opponents argue that the DNA-testing mandates are not just personally invasive; they disproportionately affect people of color who are more statistically likely to be hauled in by police on suspicion of committing a crime—even if they are eventually released.
Immigrant advocates, lawyers and civil rights groups say the portable technology used for DNA testing makes authorities more likely to use it on individuals who are already under police surveillance. A wide range of documented and undocumented immigrants have had their personal data entered into the FBI’s massively expanding identification database, according to The New Republic.
That was the stance Justice Goodwin Liu took this week on the Proposition 69 ruling.
“The fact that felony arrests of African Americans disproportionately result in no charges or dropped charges means that African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining,”Justice Liu stated.
The more liberal justices in the ruling wanted to strike down the DNA program they said affects thousands of innocent people each year, mainly African Americans.
The American Civil Liberties Union (ACLU) in California declined to comment.
Mary Ross, president of Californians for Consumer Privacy, said the DNA law should worry anyone concerned about the growing evidence that personal data was no longer private.
Citing the recent disclosures that the personal information of millions of Facebook users was scraped by companies seeking to use it for political campaigns, she said the DNA case was one more example of the need to be transparent about the information being collected and what it was used for.
“There’s a whole industry of businesses who collect information and compile [it] in electronic documents and sell it,” she said in an interview. “You can buy lists of rape victims, stuff that should never be for sale, but it’s all advertised.”
Justice Mariano-Florentino Cuéllar appeared to share this perspective in his dissent from the ruling. He wrote that the majority decision overlooked the importance of “heightened privacy protections” in California’s constitution.
“The DNA Act unlawfully invades people’s reasonable expectation of privacy in their personal genetic information,” he said.
Justice Cuéllar believed the “reasonable” way to go about collecting information that may assist criminal investigations, while protecting the privacy of individuals, is to use less-intrusive means. He used the example of taking fingerprints which gives only a few data points to identify a perpetrator, whereas DNA provides a whole raft of additional and extraneous information, particularly about an individual’s health.
Supporters of the law say such fears are overblown.
The DNA entered into the system being used today is a numerical ID, with only 20 markers of DNA—not enough to reveal one’s race, eye color, hair color or other defining personal characteristics, said Jayann Sepich, founder of DNA saves.
“I wish people took the time to understand and educate themselves on DNA testing,” observed rape victim Ashley Spence.
“If they did, I believe they would feel differently.”
Not only can DNA testing be used to prevent further crimes, but it can help exonerate the innocent, Spence argued.
Jayann Sepich, who lost her daughter Katie to a brutal rape and murder in 2003, makes a similar point. People who are innocent won’t go to prison just because their DNA was taken at the time of a felony arrest, she said in an interview.
But having their DNA on file might prevent criminals from escaping detection long after they committed horrible crimes.
Sepich’s daughter Katie was 22 when she was abducted, raped, killed, set on fire and then dumped in the desert. The man who attacked her had her skin and blood under his fingernails.
But the Sepich family waited three years and three months until they found their daughter’s killer. His DNA had been swabbed too many years after his felony arrest.
“If we had an arrestee law when our daughter was murdered, we would’ve got him in less than 90 days,” Sepich lamented.
John Case, a business lawyer in Los Angeles, said opponents of the DNA law were in effect fighting a losing battle. Consumer privacy is breached every day using websites such as Facebook and Google, he said The Crime Report.
“They’re all putting our privacy at risk,” Case maintained. “Whether that’s being used to target white people, non-white people, people with whatever political viewpoint—those risks exist,” he said.
Supporters of Proposition 69 said DNA offered a crucial way of finding and stopping repeat lawbreakers who posed a danger to society.
“If you’ve committed a crime and you are found guilty, we should be able to get info from you to see if you have committed other crimes, regardless of race” said Betsy Butler, Executive Director at California Women’s Law Center.
“I don’t know a less invasive way to track criminal behavior,” she contended. “If you haven’t done any crimes you won’t be in the system.”
Megan Hadley is a reporter for The Crime Report. She welcomes readers’ comments.