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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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