In the selfie-sharing age, is a DNA sample an invasion of privacy?

Governor Rick Snyder’s decision to sign into law a package of bills that allow DNA samples to be collected from individuals subject to a felony arrest has, unsurprisingly, ruffled some feathers.

In a guest commentary for Bridge last week, criminal defense attorney and former assistant prosecutor Neil Rockind joined other civil libertarians in punching the panic button, albeit without much in the way of explanation.

According to Rockind, the bill is merely “touted as a public safety boost,” but he fails to offer a plausible alternative (and perhaps more insidious) theory for why law enforcement might want DNA data. Isn’t the state’s explanation, which rests on the utility of DNA for solving difficult and often violent crimes, enough?

Maybe not. As Justice Antonin Scalia highlighted in his blistering dissent from the majority opinion in Maryland v. King, the Supreme Court case which upheld the constitutionality of collecting DNA samples from arrestees, “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”

It is fair to ask whether or not the “American pantheon of noble objectives” has shifted over the past two centuries.

Even before the 9/11 terrorist attacks, Americans by and large supported state and federal measures that are perceived to be tough on crime. High-profile rape and murder cases frequently capture the public’s imagination, and the heinousness of these offenses, statistically rare though they be, quickly ignites calls for justice at typically high costs. While sociologists have criticized America’s “culture of fear” when it comes to violent crime, sometimes going so far as to propose a spectrum of conspiracy theories concerning its perpetuation, the truth seems to be that most people are deeply uncomfortable with the idea that anyone should ever escape the long arm of the law, particularly for brutal and savage acts.

DNA sampling ostensibly offers a scientifically rigorous means of reducing the “escape rate” with procedures which are both minimally invasive and narrowly tailored. Most sampling can be conducted using an oral cotton swab, though occasionally blood or other tissue samples may be required.

More importantly, sampling, contrary to DNA profiling, involves only a small portion of genetic data used to identify perpetrators in unsolved cases; it does not involve retaining and analyzing genetic, health and other highly personal information which most people jealously guard. Proponents of sampling contend that the measure is analogous to fingerprinting and photographing criminal suspects, and some go so far as to say that only those with something shady to hide are against the sampling process.

Looked at from this perspective, DNA sampling would seem to pose few, if any, problems, especially given the potential payoffs involved. An additional argument supporting the collection of minimal DNA data can be rooted in the fact that millions of people, criminal and law-abiding alike, freely give away critical information about themselves every day to social media outlets, search engines, and online retailers, including, but not limited to, sexual tastes, political opinions, religious affiliation and personal struggles such as alcohol and gambling addictions.

Add to this the thousands of “selfies” and other photos people regularly post of themselves and what you may start to see is a pattern whereby privacy, even privacy concerning data far more sensitive than that which is collected and retained through DNA sampling, is no longer a significant collective value. In light of that possibility, are civil libertarians simply out of touch with present realities?

The civil-libertarian argument against Michigan’s DNA sampling law needs a pragmatic shot in the arm before it can be taken seriously. A banal appeal to “rights” or “liberties” in a modern-day liberal democracy carries little weight given how frequently the menu for both is subject to change. Less than a generation ago it was still constitutional for states to prohibit homosexual activity just as, a mere decade ago, it was perfectly fine for the Michigan electorate to define marriage as the union of one man and one woman. Let the winds of change blow freely for a bit and far different results, protected under the rubric of “rights,” appear on the horizon.

For the civil libertarian case to carry the day, it needs to be made on the level of demonstrating that the costs of surrendering modest DNA data outweighs the public benefits – physical and psychological – of capturing violent criminals. Or maybe civil libertarians might show, after extensive empirical research, that DNA samples may be either planted or intentionally manipulated by law-enforcement officials in order to yield false positives which will upgrade case clearance rates.

If any of that sounds a bit fantastical, it’s because it is. But “fantastical” does not mean “impossible,” only “highly improbable.” Still, if civil libertarians and other concerned Michigan citizens want to give Michigan’s new DNA sampling law a short shelf life, that may be the best way to go about it, particularly in what appears to be our post-privacy age.

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Sun, 02/08/2015 - 5:54am
Just about everything is a felony these days including small amounts of pot. And yes, we already know cops as well as anyone else can plant evidence and DNA appears to carry undue weight even when eye witness testimony contradicts it. The escalating loss of privacy doesn't mean we should succumb to it. In fact, countering it would be a logical action towards balance. My compromise would be to allow sampling in violent felony convictions.
Martin Magid
Sun, 02/08/2015 - 8:43am
Joe's suggestion that eye witness testimony should trump DNA evidence ignores the ever-increasing belief, based on the various Innocence Projects, that eye witnesses often have faulty vision or biased opinions.
Sun, 02/08/2015 - 11:28am
The only people that would be concerned with their DNA taken are the criminals. Why would this be a violation of their rights? They give up certain rights when they commit crimes.
Conan Smith
Sun, 02/08/2015 - 12:22pm
I think Neil Rockind's point was more at "innocent until proven guilty". He didn't suggest that DNA isn't a useful tool. Rather he suggests the invasion of your body to grab DNA evidence is even more egregious than the invasion of your property -- and shouldn't be done without just cause and a warrant. That's hardly too much to ask since suspects can't really destroy their DNA, right? After all, it's an integral part of their being. There often isn't any just cause for collecting DNA at the time of arrest -- crime scene investigators likely haven't processed any evidence and in many cases (e.g. OUI's, narcotics possession, receiving stolen property, etc.) DNA wouldn't be used to convict. This new law, it's simply an unjustified invasion of privacy. Sure, there are lots of cases where DNA evidence is useful and necessary. In those instances, law enforcement should go to a judge, make a case that they need that evidence, and get a warrant before they collect it.
Charles Richards
Sun, 02/08/2015 - 2:38pm
Mr. Sanchez's statement: "For the civil libertarian case to carry the day, it needs to be made on the level of demonstrating that the costs of surrendering modest DNA data outweighs the public benefits – physical and psychological – of capturing violent criminals." is an example of the trade-off between individual rights and the collective good that is examined in an excellent book by Joshua Greene, Moral Tribes, that I have just started. A utilitarian test, such as Mr. Sanchez proposes is indeed how we should evaluate this issue. As I recall, Mr. Rockind, also objected to field sobriety tests when somebody was suspected of driving under the influence. He claimed that many sober people have a difficult time passing the test. I suspect that the percentage of sober drivers who are stopped on suspicion of drunk driving is quite small. And the percentage of those people who cannot pass the field sobriety test is quite likely to be very small. Multiplying the two percentages together yields an extremely small number of people wrongfully arrested for drunk driving. The benefits to the community of using field sobriety tests far outweighs the costs incurred by a few people.
John Q.
Sun, 02/08/2015 - 11:42pm
It's hard to take seriously the commentary of someone who can't understand the difference of someone willing sharing a photo of themselves on Facebook and the government forcibly taking and keeping a DNA sample on the mere accusation of a crime. Indeed, why stop there? Why doesn't Mr. Sanchez that every citizen be subjected to a DNA test and the state maintain a database of all citizens DNA? In Mr. Sanchez's worldview, if we're all sharing on Facebook, what's the harm?
Mon, 02/09/2015 - 10:45am
Taken to the logical next step, DNA should be extracted, mapped and archived at birth. Should a crime ever be committed anywhere, police can simply turn to the DNA database and deduce the criminal without additional effort or forensic evidence. It would save on manpower, costs, and prosecutions. We, as a society, could use the ever-growing DNA database to analyze individuals that may be genetically predisposed to tragic diseases, and make sure that society does not over-invest in their futures, ensuring a robust future for the healthy, superior people. Gattaca anyone?
Gabriel S. Sanchez
Tue, 02/10/2015 - 12:04am
In reviewing these comments I was disappointed to see how many missed the central point, which is that the civil libertarian argument against DNA sampling needs to be strengthened in order to be more credible. I am by no means a proponent of DNA sampling and I find some of the implications worrisome. At the same time, bland appeals to "rights" don't carry much weight because they are either based on a misunderstanding of the present culture or they are rooted in a defective philosophical project which, for the life of me, I can't take seriously. Perhaps others can. But of course there are plenty of people who take Star Trek conventions very seriously, too. What I would like to see from the civil libertarian camp are rigorous arguments, backed with real evidence, that DNA sampling actually poses real risks to citizens. Fleeing to slippery slope arguments and alarmism doesn't cut the mustard.
Wed, 02/11/2015 - 1:12pm
To address the question of philosophy: Sanchez argues for a sort of prudential approach where sampling is "minimally intrusive." But contrary to that, one may ask, can something intrusive be proffered without consent? The fundamental question is the integrity of the body. The dividing line is admittedly subtle: what is mine in my body (say my cheek) may be the same as what is left in my saliva on a stamp or a glass. But the former belongs to me, the latter is a result of some action (and so, properly visible to the State, as it were). Secondly, when the State assumes that it can violate the integrity of my body without cause (or my permission) it is asserting a de facto ownership: I am a creature of the State and quite the opposite of the notion of person found in the phrase, "inalienable rights." Moreover, can the mere fact of custody change my relationship to my body in this manner? Thirdly, to touch on something closer to Sanchez' heart: a State that can lay claim to my body certainly undermines any confidence in a State that would recognize the unborn. At the very least, "minimally intrusive" renders the objections to birth control as inconsequential. if bodies are at least on occasion, to be considered things, then the absolute moral right to the body vanishes. At core, then, in this seeming innocuous procedure lie a cluster of rather significant questions as to the status of the person. We use principles of just cause precisely as a means to recognize the importance of the individual and her rights.
Thu, 02/19/2015 - 10:54am
Selfies are by choice. No one has forced you to do so. Arresting for a felony doesn't mean you are a felon and therefore the DNA sampling would seem to be premature. Given your stance Gabriel, why not swab every infant at birth? It is possible that some of the infants would be a felon at some point in time.