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What Constitutes a Breach of Genomic Privacy by Law Enforcement?


One of the recurring themes here will be how to manage genomic privacy issues. The 9th U.S. Circuit Court of Appeals, a fast-track route to the U.S. Supreme Court, is ready to take on that question as it pertains to law enforcement. Recent cases in both California and Maryland brought by the ACLU and separate plaintiffs contend law enforcement has been grossly over-stepping its bounds in demanding DNA samples from people arrested for felonies, regardless of their subsequent convictions (Haskell v Harris; Maryland v. King). If California arrestees brought in for a wide variety of crimes don’t readily consent to a cheek swab or hair sample for DNA analysis, they face additional misdemeanor charges and jail time. The ACLU believes this violates basic privacy rights and constitutional freedom from search and seizures, especially when many of those brought in, including the plaintiff in this case, Elizabeth Haskell, are later released without charges. Law enforcement contends that this practice is fundamentally the same as fingerprinting everyone who is brought in to the police station, and it needs the information to identify suspects in subsequent crimes.

In a highly unusual move, this will be the third time Haskell v. Harris has been visited by the 9th U.S. Circuit Court of Appeals, with law enforcement’s right to continue this practice being upheld in both previous rulings. The call for this case to be heard a third time was made pending the outcome of Maryland v. King. Maryland v. King was decided in June, with the decision upholding the right of law enforcement agencies to collect DNA from people arrested for any of a small number of extremely serious crimes. California civil liberty advocates point out that the law in California being contested applies to a much wider swath of society, including people brought in for shoplifting, drug possession, and arrests made during political demonstrations. The momentum generated by both Maryland v. King and the repeated hearings of Haskell v. Harris seems likely to force the Supreme Court to consider this question sometime in the next year.

At issue here are intrinsic civil liberties and which of those one must forfeit upon arrest. We’ve already seen law enforcement agencies granted broad rights in using “abandoned DNA” (Athan v. Washington); Haskell v. Harris seems like it may lead to another step in the wrong direction. Given how the appeals courts in every aforementioned case have sided with law enforcement’s right to collect DNA, will the Supreme Court, which tipped its hand in Maryland v. King, really overrule them in favor of protecting arrested subjects?

I think this represents a troubling development for those worried about the overreach of law enforcement. Watch this space after Haskell v. Harris is decided in December.