Wednesday, November 10, 2010

What's Wrong With Routine DNA Testing?

By Sherry F. Colb

In my column for this week, I discuss the case of United States v. Mitchell, which the Third Circuit has set to be argued en banc (before the whole court of appeals).  This case takes up the question whether federal law, which currently requires routine DNA sampling of people arrested for specified offenses (even before they have been tried and convicted) violates the Fourth Amendment right against unreasonable searches and seizures.  In my column, I consider the arguments made by the district judge (who refused to allow DNA sampling), including the copious data available in a person's DNA and the notion that people ought to be treated as "innocent until proven guilty."

In this post, I want to ask whether the Supreme Court of the United States ought perhaps to reconsider its overall commitment to the idea that people relinquish privacy when they either discard or voluntarily convey materials (containing highly personal information) to third parties.

In the case of California v. Greenwood, the Supreme Court held that people have no reasonable expectation of privacy in the garbage that they leave at the curb for collection.  As a result, police may -- without even triggering the protections of the Fourth Amendment -- pick up people's garbage and wade through it to find evidence or any sort of information they might find interesting.  This means, for example, that if you or your partner takes a home pregnancy test and throw it in the trash, a police officer can -- without a hint of crime-related suspicion -- retrieve that test and learn that someone in your household is pregnant.

If we imagine that police only go through garbage when they fully expect to find evidence of crime, then we might not worry about the "curious cop" scenario.  On the other hand, if the purpose of having the Fourth Amendment "cover" particular police conduct is a fundamental concern about abuse of power, it might be appropriate to demand some showing of suspicion (in the form of probable cause and a warrant, for example) before allowing a police officer to go through your trash, just as the officer must have probable cause to look around inside your home.

To return to DNA collection, it is now not that difficult to collect a DNA sample from people without having to take blood or a buccal swab (the two methods of DNA collection that at least facially implicate the Fourth Amendment right against unreasonable searches, even now).  People discard DNA wherever they go.  But so long as people are thought to have no reasonable expectation of privacy in the things that they discard or give away, it is difficult to see how existing Fourth Amendment doctrine can stop the FBI or state and local police from investigating individuals' most personal biological profiles from discarded hair or skin cells.  Indeed, police could probably obtain DNA from emptying a person's garbage, in which the Court has already said the individual has relinquished any prior expectation of privacy.

There are some cases that point in another direction, however, as I discuss in the column and as I have addressed in my criminal procedure scholarship (including an article in Stanford Law Review entitled "What Is A Search?").  Rather than utilizing these cases to support protecting DNA, however -- as the Third Circuit will seemingly have to do if it wants to affirm the district court -- the most principled way for the Supreme Court to protect such privacy would be to overrule Greenwood and recognize that we do in fact have a reasonable expectation of privacy in the things that we discard, such that mining them for information ought to require individualized suspicion and a warrant.  Whether the Court would be willing to take such a step is, of course, another matter.


heathu said...

Instead of overruling Greenwood, couldn’t the Supreme Court (or a lower court) distinguish it by saying Greenwood stands for the proposition that we have no reasonable expectation of privacy in things we WILLINGLY disregard or give away? I cannot help but leave some DNA wherever I go, yet I have complete control (subject to any applicable disposal ordinances) over what items I voluntarily abandon by putting in my garbage pail.
Or as Prof. Colb states in her Findlaw Column “Stated differently, once a person has parted with something voluntarily, it may be the case that he retains no residual privacy in the information that can be unearthed as a result.” That may be true, but I have difficulty seeing how the DNA that falls off me every day can fairly be described as “parted with…voluntarily.”

Paul Scott said...

Better yet, I will hope that at some point the court recognizes that asking the question of "do 'people relinquish privacy when they...'" is just the wrong question to be asking wrt 4A. The concept of whether something is or is not "reasonable" is generally well understood in most areas of jurisprudence. For whatever reason, the SCOTUS decided it needed to change the question to expectations of privacy rather than simply using a balancing test around the circumstances present in each case to determine the reasonableness of the search.

In this I am somewhat torn because the concept of a right to privacy is a good one. I just wish it had been "found" in something other than our constitutional protections relating to criminal investigation.

With that short diatribe out of the way, one thing I am having difficulty with is distinguishing routine finger-printing from routine DNA testing. At this point, DNA testing is simply not an invasive procedure any more so than finger-printing or ocular scanning or facial photography. On an arrest, I would want the police collecting all of that information. I am having trouble envisioning how such information would be abused - or at least any more so than such imagined abuses from finger-printing, photography and ocular scanning.

heathu said...

The question “"do 'people relinquish privacy when they...'" is asked to determine if a “search” took place at all for Fourth Amendment purposes. If the answer is no, then there is no reason to ask if the search was reasonable; there simply was no search. If the answer is yes, then the Supreme Court can move on to Paul Scott’s “…balancing test around the circumstances present in each case to determine the reasonableness of the search.” In other words, the relinquish-privacy question is used to determine if there was a search, while reasonableness is used to determine if the search passes Fourth Amendment muster. They are two different questions posed for different functions. It is hard to see how the latter could replace the former.
As far as DNA testing goes, is considered to be more dangerous (that is, subject to greater abuses) because unlike fingerprinting or ocular scans, it is can be far more than a binary, positive/negative ID test. As Prof. Colb pointed out in her Findlaw article: “With respect to fingerprinting, Judge Cercone rejected the analogy between DNA and fingerprints as ‘pure folly,’ citing the ‘complex, comprehensive, inherently private information contained in a DNA sample . . . . [including] over four thousand types of genetic conditions and diseases.’” It can also be used to tell who your family members are, what they may be more likely to be suseptible to, and those people likely never came under any police suspicion. And that is just what we can do with DNA today. As the field of DNA science grows, the state would be able to determine even more about a person, all from a sample given years earlier, given by a donor (voluntary or not) who could not have possibly known what information he or she was giving away.

Paul Scott said...

I am not sure it matters which easily understood term is being replaced. I'll accept for now that the reasonable expectation of privacy standard is exclusive to the determination of whether or not there was a "search" and is not in any way related to the reasonableness thereof. The same criticism applies. One does not need to ask a question about privacy to know if a search has occurred. Outside of 4A jurisprudence, the two are not related in any way. In 4A jurisprudence they became related only because the court wanted to make some acts that were just obviously searches not be searches for 4A. A far more understandable approach would be to do away with all of it - expand "search" back out to encompass all those things that everyone would agree is an act that in common parlance is a search and ask instead whether this sort of search is the kind we want our law enforcement officers checked on prior to proceeding (e.g. is the obvious search "reasonable" under the circumstances or does it reach a point where the discretion is better placed with a magistrate than a police officer).

Sam Rickless said...

The central question, as I see it, is whether we have any legitimate expectation of privacy regarding information that may be extracted from material that we voluntarily discard. In Greenwood, SCOTUS said that there is no such legitimate expectation, and it seems to me that this is the right call. It doesn't matter whether what I throw in the garbage is a hamburger, a pregnancy test, my diary, or hair cells. I think that the fact that I am unaware of how much information can be extracted from what I throw away is irrelevant to the question of whether the search is reasonable. I have parted with an object voluntarily, and so I have no reasonable expectation of privacy (no right to privacy) in respect of any information that could be extracted from it.

Heath makes an interesting point. It is true that we all leave DNA wherever we go. Heath suggests that it does not follow that we part with the DNA voluntarily. So it seems that when the police gather DNA from a cigarette butt or a styrofoam cup, the situation is relevantly unlike Greenwood. But even here, I think, throwing away a cigarette butt or leaving one's cup on the restaurant table is a form of abandonment. I lose any rights over the cigarette butt or over the cup when I leave them in a public place. If someone wanted them for a souvenir, I would have no legal recourse. I think something similar could be said of the hotel hairbrush or even the DNA in the fingerprint. On the other hand, if it were possible to gather DNA from someone's breath or sneeze, then this *would* be problematic, because breathing and sneezing are clearly not voluntary.

I think Paul is absolutely right to point out that the question of whether something counts as a search for 4A purposes should be divorced from the question of whether the relevant activity infringes a right to privacy (or a legitimate expectation thereof). I tried to provide a reconstruction of 4A jurisprudence along these very lines in "The Coherence of Orthodox Fourth Amendment Jurisprudence", George Mason University Civil Rights Law Journal (2005).

Doug said...

This makes little sense - if I leave a cup at a restaurant and they analyze it and sell that to a marketing firm there is no 4th amendment violation (no government action) and absent a HIPPA provision I'm not aware of no statutory violation. So marketers can get the info but not police? What?

Much of what counts as a "search" is in my mind overly broad. I agree that the government should be limited in violating individual privacy but tapping a phone or doing a DNA test isn't a "search" by any reasonable construction. Absent a constitutional amendment the protection should be statutory - i.e. it should be up to congress to protect rights. To me this is judicial activism - just because the courts want there to be a right and that right makes sense doesn't mean there is a right. It is up to the people.