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California’s DNA Law Violates Privacy Protections Guaranteed by State

103 points by pavornyoh 11y ago

avmich 11y ago
> Hundreds of thousands of Californians who were once in custody but never charged still have their DNA stored in law enforcement databases Can those databases be cleaned from this information? By a judge request maybe?
eggie 11y ago
I have a lot of faith in the EFF but in this case I think they are confused. Our DNA is one of the least private aspects of ourselves. We share the vast majority of it with our family and even neighbors. The idea of hiding it is absurdly impossible. We leave it everywhere we go in quantities that are more than sufficient to completely reconstruct our genome. We would literally need to wear full body latex suits with filtered respirators to keep it private. In the medium term, the idea of having private DNA while living in a public environment is as incredible as desiring to have a public social experience while keeping your face completely hidden. DNA sampling arrestees is no more invasive than taking their photo. It is only our current technical capacity that makes us see the two as different.
- Lawtonfogle 11y ago
  This is kinda like saying that because our bodies constantly emit electromagnetic radiation that could be used to construct a detailed nude image, using a camera with the tools needed to do such isn't invasive. What happens when we have the technology to read internal monologues? What happens when the police are able to hear the lawyer talking to their client because they are talking too loud for the new technology... if they didn't want to be heard should they whisper... and what happens when even that is too loud? Under this reasoning, most all privacy is as good as dead and we are just waiting for the technology to get here.
  - eggie 11y ago
    When it comes to DNA we are already nude. You will have better luck keeping your face private and going about a normal life than hiding your genome from the world. The former can be accomplished with a mask. The latter requires living in a plastic bubble and never sharing the genomic information of anyone. I do not want to live in a world where everyone must be masked, and although the utility of sharing information about DNA is of a different kind I will also be profoundly sad if we are too afraid of the bogeyman to let other people know what we are made of. Perhaps I feel so strongly about this because there is literally not one case where DNA information alone has resulted in harm. I challenge you to provide an example. Digitized DNA sequence information from tens of millions of people is floating around in the world. If this were as dangerous as some people make it out to be I would expect there to have been many problems already. (The example that I have heard is when someone learns their biological parents are not who they think they are. Although this may be troubling I find it absurd that someone should have the right to delude or be deluded about their genetic background. At worst it can pose a dangerous liability as someone lacks information about diseases that may affect them or their offspring.)
    - Retric 11y ago
      People can see and directly compare fingerprints, but DNA only showes up after extensive tests which gives it much stronger constitutional protections. Further it's only relevant in significant quantities as individual cells may end up hundreds of miles from where an individual has ever been. Where you at the scene of the crime, or did you happen to walk by the factory where the shelf was manufactured? PS: As we get better at testing DNA we ar e finding it less relevant.
    - tzs 11y ago
      > Perhaps I feel so strongly about this because there is literally not one case where DNA information alone has resulted in harm Wrong: http://www.theatlantic.com/science/archive/2015/10/the-dark-side-of-dna-databases/408709/ http://www.theatlantic.com/science/archive/2015/10/the-dark-...
      - 11y ago
- grecy 11y ago
  The problem isn't that they're collecting DNA, it's that they're linking it to an individual for future identification. Sure, I left my DNA all over some place I visited, but nobody has any idea who "I" am based on it, in the same way they don't have my fingerprints on file. EDIT: Also note the DNA of everyone born after 1983 in California is on file.
  - eggie 11y ago
    As they are taking photos of the same people so that there is not question as to their identity in the future. What makes DNA different than the photo?
    - Vraxx 11y ago
      I don't know about you, but I can change my appearance a lot easier than I can change my DNA. Even this aside, a DNA link to your identity is a lot more accurate than just a photo.
    - grecy 11y ago
      A photo of you at birth is not really going to tie you to something 20 or 40 years later. DNA sure will.
- rtl49 11y ago
  What you're claiming about the privacy of DNA isn't strictly true. You're correct that, aside from mutations, we share all of our alleles with one or the other parent, and about half of them with full siblings, etc. But this information in itself doesn't enable one to predict the exact composition of your genome, which would be needed to form a predictive model of your body. It would still be possible to, say, link your DNA to that found at a crime scene, but you still sacrifice something by giving it up. I have little hope that we will maintain this form of privacy, but that isn't to say nothing has been lost.
  - eggie 11y ago
    We have not had this form of privacy for a long time, and I doubt we will regain it unless we would like to do away with DNA evidence altogether. If anything we should be pushing for more precision in the use of DNA samples as evidence. The standards required for identification are incredibly low and result in large numbers of false positives. These poor standards cause harm. The correct use of DNA evidence can clarify crimescene events and has had the power to exonerate many falsely-accused people.
    - rtl49 11y ago
      I think these are separate issues. There is definitely an important difference between being able to use DNA in criminal investigations and maintaining a database of every genome in the population. The first solves a problem of legitimate social concern, the second is the stuff of dystopian fiction. None of this is at odds with insisting upon higher levels of precision and integrity in forensic science. We can talk about reducing the number of false positives and educating juries about the limitations of forensics without resigning ourselves to the unwelcome collection of our DNA.
      - JoeAltmaier 11y ago
        Yet DNA is so easy to collect; you don't need permission. I think we'll have to get used to the idea of universal identification. Its inevitable. Better to come to terms with it.
- privacy101 11y ago
  This is like saying that because the NSA could record all communications forever that they should.
mc32 11y ago
Doesn't the state collect DNA from all newborns by law as well? Now, I do see in principle why one would want one's DNA profile removed if an arrest doesn't result in conviction, but if the state already collects DNA at birth by law, would that not supercede these cases? Alternatively, the state could simply pass laws making retention from this input stream legal.
- mcherm 11y ago
  Does it? I was not aware of that. I know that my state, Pennsylvania, does no such collection -- or at least it did not a decade ago when my children were being born.
  - gojomo 11y ago
    My impression is that the collection is so routine and automatic that most parents don't even notice it's happening, and would need to assert themselves in advance in writing to exercise their religious opt-out. This site suggests Pennsylvania's policies for sample retention (8 months) and use of results (by subject and their medical provider only) are more restrictive than "save indefinitely" states like California: http://www.babysfirsttest.org/newborn-screening/states/pennsylvania http://www.babysfirsttest.org/newborn-screening/states/penns...
    - mc32 11y ago
      Yeah, during newborn delivery there is so much going on, most parents will not notice that this happens at all. So my question is what leg does the EFF stand on when making this complaint?
      - bmelton 11y ago
        > So my question is what leg does the EFF stand on when making this complaint? The honorable Carol Yaggy, trial judge for the superior court of San Francisco. http://www.courts.ca.gov/opinions/revpub/A125542M.PDF http://www.courts.ca.gov/opinions/revpub/A125542M.PDF If indeed DNA is being collected at birth, without consent, the EFF would have similar grounds to object to that. If an act is against the law, it doesn't matter that the state is breaking that same law in another instance. Breaking the law twice doesn't validate it, or, as my first grade teacher Mrs. Thompson might have said, two wrongs don't make a right.
dlandis 11y ago
> California officials argue that the court should follow the lead of the U.S. Supreme Court, which ruled in Maryland v. King that citizens’ privacy rights are outweighed by the government’s need to use DNA to identify arrestees, just as it uses fingerprints. The article makes it sounds like the Supreme Court has already ruled on this issue. Wouldn't that make this California case moot?
- detaro 11y ago
  In Maryland v. King the crucial difference is that according to the Maryland law in question the DNA sample has to be destroyed if there is no conviction and it can't be processed before the arrestee has been charged. (according to wikipedia: https://en.wikipedia.org/wiki/Maryland_v._King https://en.wikipedia.org/wiki/Maryland_v._King)
  - deleted 11y ago
    [deleted]
- chimeracoder 11y ago
  > The article makes it sounds like the Supreme Court has already ruled on this issue. Wouldn't that make this California case moot? The Supreme Court issued a (relatively) narrow ruling; the EFF is arguing that this principle can and should be applied to a broader ruling. This is a pretty standard pattern in judicial proceedings. For a number of reasons, judges are often hesitant to rule too broadly, so advocates push for successively broader rulings until they achieve their goal. (It also sometimes happens in reverse, with advocates pushing for narrower rulings, but that's a different matter).
hwstar 11y ago
Here's another interesting fact. Once the arrested bit is set, it is immutable in the eyes of the State of California. Law enforcement knows if you have been arrested in the past even if the specific reasons are expunged at the request of the arrestee. Also, there's a very narrow window to request that arrest records be expunged. If you are arrested and acquitted or the charges are dropped, get in contact with the court as soon as possible to make sure you are within the window.
- hansjorg 11y ago
  That seems directly opposed to the presumption of innocence. I guess the lawyers have a way of justifying this by separating different states of being "in the eyes of the law".
  - maxerickson 11y ago
    As a practical matter, how do you make officers forget who they have arrested? Which of course is not an argument in favor of permanent electronic records, but I wonder if the principle can really be applied like you are saying.
    - dublinben 11y ago
      Only the arresting officer(s) would directly "remember" your arrest if it were not permanently recorded in a database. California is a very large state. Your unofficial reputation shouldn't follow you from San Diego to San Francisco.
      - maxerickson 11y ago
        Yes, I understand that only the people involved in an arrest would have recollection of it. But that is just the point. A database differs in degree from personal memories (it follows you around), but it is not different in the sense raised by a statement like That seems directly opposed to the presumption of innocence. (a second interaction could be colored by an officer's memory just the way an interaction could be colored by an entry in the database).

103 points by pavornyoh 11y ago

> Hundreds of thousands of Californians who were once in custody but never charged still have their DNA stored in law enforcement databases Can those databases be cleaned from this information? By a judge request maybe?

eggie 11y ago

I have a lot of faith in the EFF but in this case I think they are confused. Our DNA is one of the least private aspects of ourselves. We share the vast majority of it with our family and even neighbors. The idea of hiding it is absurdly impossible. We leave it everywhere we go in quantities that are more than sufficient to completely reconstruct our genome. We would literally need to wear full body latex suits with filtered respirators to keep it private. In the medium term, the idea of having private DNA while living in a public environment is as incredible as desiring to have a public social experience while keeping your face completely hidden. DNA sampling arrestees is no more invasive than taking their photo. It is only our current technical capacity that makes us see the two as different.

Lawtonfogle 11y ago
This is kinda like saying that because our bodies constantly emit electromagnetic radiation that could be used to construct a detailed nude image, using a camera with the tools needed to do such isn't invasive. What happens when we have the technology to read internal monologues? What happens when the police are able to hear the lawyer talking to their client because they are talking too loud for the new technology... if they didn't want to be heard should they whisper... and what happens when even that is too loud? Under this reasoning, most all privacy is as good as dead and we are just waiting for the technology to get here.
- eggie 11y ago
  When it comes to DNA we are already nude. You will have better luck keeping your face private and going about a normal life than hiding your genome from the world. The former can be accomplished with a mask. The latter requires living in a plastic bubble and never sharing the genomic information of anyone. I do not want to live in a world where everyone must be masked, and although the utility of sharing information about DNA is of a different kind I will also be profoundly sad if we are too afraid of the bogeyman to let other people know what we are made of. Perhaps I feel so strongly about this because there is literally not one case where DNA information alone has resulted in harm. I challenge you to provide an example. Digitized DNA sequence information from tens of millions of people is floating around in the world. If this were as dangerous as some people make it out to be I would expect there to have been many problems already. (The example that I have heard is when someone learns their biological parents are not who they think they are. Although this may be troubling I find it absurd that someone should have the right to delude or be deluded about their genetic background. At worst it can pose a dangerous liability as someone lacks information about diseases that may affect them or their offspring.)
  - Retric 11y ago
    People can see and directly compare fingerprints, but DNA only showes up after extensive tests which gives it much stronger constitutional protections. Further it's only relevant in significant quantities as individual cells may end up hundreds of miles from where an individual has ever been. Where you at the scene of the crime, or did you happen to walk by the factory where the shelf was manufactured? PS: As we get better at testing DNA we ar e finding it less relevant.
  - tzs 11y ago
    > Perhaps I feel so strongly about this because there is literally not one case where DNA information alone has resulted in harm Wrong: http://www.theatlantic.com/science/archive/2015/10/the-dark-side-of-dna-databases/408709/ http://www.theatlantic.com/science/archive/2015/10/the-dark-...
    - 11y ago
grecy 11y ago
The problem isn't that they're collecting DNA, it's that they're linking it to an individual for future identification. Sure, I left my DNA all over some place I visited, but nobody has any idea who "I" am based on it, in the same way they don't have my fingerprints on file. EDIT: Also note the DNA of everyone born after 1983 in California is on file.
- eggie 11y ago
  As they are taking photos of the same people so that there is not question as to their identity in the future. What makes DNA different than the photo?
  - Vraxx 11y ago
    I don't know about you, but I can change my appearance a lot easier than I can change my DNA. Even this aside, a DNA link to your identity is a lot more accurate than just a photo.
  - grecy 11y ago
    A photo of you at birth is not really going to tie you to something 20 or 40 years later. DNA sure will.
rtl49 11y ago
What you're claiming about the privacy of DNA isn't strictly true. You're correct that, aside from mutations, we share all of our alleles with one or the other parent, and about half of them with full siblings, etc. But this information in itself doesn't enable one to predict the exact composition of your genome, which would be needed to form a predictive model of your body. It would still be possible to, say, link your DNA to that found at a crime scene, but you still sacrifice something by giving it up. I have little hope that we will maintain this form of privacy, but that isn't to say nothing has been lost.
- eggie 11y ago
  We have not had this form of privacy for a long time, and I doubt we will regain it unless we would like to do away with DNA evidence altogether. If anything we should be pushing for more precision in the use of DNA samples as evidence. The standards required for identification are incredibly low and result in large numbers of false positives. These poor standards cause harm. The correct use of DNA evidence can clarify crimescene events and has had the power to exonerate many falsely-accused people.
  - rtl49 11y ago
    I think these are separate issues. There is definitely an important difference between being able to use DNA in criminal investigations and maintaining a database of every genome in the population. The first solves a problem of legitimate social concern, the second is the stuff of dystopian fiction. None of this is at odds with insisting upon higher levels of precision and integrity in forensic science. We can talk about reducing the number of false positives and educating juries about the limitations of forensics without resigning ourselves to the unwelcome collection of our DNA.
    - JoeAltmaier 11y ago
      Yet DNA is so easy to collect; you don't need permission. I think we'll have to get used to the idea of universal identification. Its inevitable. Better to come to terms with it.
privacy101 11y ago
This is like saying that because the NSA could record all communications forever that they should.

mc32 11y ago

Doesn't the state collect DNA from all newborns by law as well? Now, I do see in principle why one would want one's DNA profile removed if an arrest doesn't result in conviction, but if the state already collects DNA at birth by law, would that not supercede these cases? Alternatively, the state could simply pass laws making retention from this input stream legal.

mcherm 11y ago
Does it? I was not aware of that. I know that my state, Pennsylvania, does no such collection -- or at least it did not a decade ago when my children were being born.
- gojomo 11y ago
  My impression is that the collection is so routine and automatic that most parents don't even notice it's happening, and would need to assert themselves in advance in writing to exercise their religious opt-out. This site suggests Pennsylvania's policies for sample retention (8 months) and use of results (by subject and their medical provider only) are more restrictive than "save indefinitely" states like California: http://www.babysfirsttest.org/newborn-screening/states/pennsylvania http://www.babysfirsttest.org/newborn-screening/states/penns...
  - mc32 11y ago
    Yeah, during newborn delivery there is so much going on, most parents will not notice that this happens at all. So my question is what leg does the EFF stand on when making this complaint?
    - bmelton 11y ago
      > So my question is what leg does the EFF stand on when making this complaint? The honorable Carol Yaggy, trial judge for the superior court of San Francisco. http://www.courts.ca.gov/opinions/revpub/A125542M.PDF http://www.courts.ca.gov/opinions/revpub/A125542M.PDF If indeed DNA is being collected at birth, without consent, the EFF would have similar grounds to object to that. If an act is against the law, it doesn't matter that the state is breaking that same law in another instance. Breaking the law twice doesn't validate it, or, as my first grade teacher Mrs. Thompson might have said, two wrongs don't make a right.

dlandis 11y ago

> California officials argue that the court should follow the lead of the U.S. Supreme Court, which ruled in Maryland v. King that citizens’ privacy rights are outweighed by the government’s need to use DNA to identify arrestees, just as it uses fingerprints. The article makes it sounds like the Supreme Court has already ruled on this issue. Wouldn't that make this California case moot?

detaro 11y ago
In Maryland v. King the crucial difference is that according to the Maryland law in question the DNA sample has to be destroyed if there is no conviction and it can't be processed before the arrestee has been charged. (according to wikipedia: https://en.wikipedia.org/wiki/Maryland_v._King https://en.wikipedia.org/wiki/Maryland_v._King)
- deleted 11y ago
  [deleted]
chimeracoder 11y ago
> The article makes it sounds like the Supreme Court has already ruled on this issue. Wouldn't that make this California case moot? The Supreme Court issued a (relatively) narrow ruling; the EFF is arguing that this principle can and should be applied to a broader ruling. This is a pretty standard pattern in judicial proceedings. For a number of reasons, judges are often hesitant to rule too broadly, so advocates push for successively broader rulings until they achieve their goal. (It also sometimes happens in reverse, with advocates pushing for narrower rulings, but that's a different matter).

hwstar 11y ago

Here's another interesting fact. Once the arrested bit is set, it is immutable in the eyes of the State of California. Law enforcement knows if you have been arrested in the past even if the specific reasons are expunged at the request of the arrestee. Also, there's a very narrow window to request that arrest records be expunged. If you are arrested and acquitted or the charges are dropped, get in contact with the court as soon as possible to make sure you are within the window.

hansjorg 11y ago
That seems directly opposed to the presumption of innocence. I guess the lawyers have a way of justifying this by separating different states of being "in the eyes of the law".
- maxerickson 11y ago
  As a practical matter, how do you make officers forget who they have arrested? Which of course is not an argument in favor of permanent electronic records, but I wonder if the principle can really be applied like you are saying.
  - dublinben 11y ago
    Only the arresting officer(s) would directly "remember" your arrest if it were not permanently recorded in a database. California is a very large state. Your unofficial reputation shouldn't follow you from San Diego to San Francisco.
    - maxerickson 11y ago
      Yes, I understand that only the people involved in an arrest would have recollection of it. But that is just the point. A database differs in degree from personal memories (it follows you around), but it is not different in the sense raised by a statement like That seems directly opposed to the presumption of innocence. (a second interaction could be colored by an officer's memory just the way an interaction could be colored by an entry in the database).