What Will We Do With Innocent People's DNA?

NevDull writes "As creepy as it may be to deal with identity theft from corporate databases, imagine being swabbed for DNA samples as a suspect in a crime, being vindicated by that sample, and never even being told why you were suspected. This article discusses a man, Roger Valadez, who's fighting both to have his DNA sample and its profile purged from government records, and to find out why he and his DNA were searched in the BTK case. DA Nola Foulston said, 'I think some people are overwrought about their concerns.' -- convenient as she wasn't the one probed without explanation. The article then mentions that 'In California, police will be able in 2008 to take DNA samples from anyone arrested for a felony, whether the person is convicted or not, under a law approved by voters in November.' What will be the disposition of the DNA of the innocent?"

Re:Cluster and Classify ...

[ackthpt]

We will end up with two categories of samples:

If you can ever find Walk Kelly's Pogo strips from the 70's, he nails Agnew for this very line of logic. Guess who isn't the one locked up in the jail? It is a bit like Nixon, again, isn't it?

Re:Illegal search and seizure

[3waygeek]

Actually, the California state constitution specifically lists a right to privacy [ca.gov] -- it's in the second sentence of the document.

In Michigan

[Anita Coney]

Everyone convicted of a felony has to give a DNA sample before sentencing.

Re:This will never fly

[spiritraveller]

It's more reliable, more useful, more efficent... and people believe in it.

People are afraid because they think that all it will take is some lab person to testify that the dna matched and they will be convicted.

Of course we've never had a problem with that before [cnn.com].

Re:Too many "easy" counterargs

[angle_slam]

This stuff has already been decided. A DNA sample is not covered by the 5th amendment.

Re:Nothing to Fear

[Anonymous Coward]

Try to have your state lower the drinking age to 19

Bad example, since the drinking age is already set by states. There is no federal drinking age.

It happens to be 21 because federal highway funding to the states is tied to compliance with setting it to that age. However, there was a span of time where certain states such as Louisiana had a lower legal age. (The theory is that Louisiana makes more money off alcohol sales during Mardi Gras than they get from highway funding, but who knows) ;)

Re:Nothing to Fear

[Thunderstruck]

Try to have your state lower the drinking age to 19, or opt out of Social Security, or pass a law against abortion or (insert idea here).

Actually, if you read South Dakota v. Dole, its pretty clear that your state is quite free to set the drinking age wherever it likes. (As long as it does not mind paying for its own roads.) Other cases such as Morrison & Lopez, (which held that Washington D.C. cannot make it a crime to carry a firearm in a school zone, or create a civil cause of action for abused women,) have in recent years done much to begin the revival of States' rights.

I voted against this thing...

[jeblucas]

'In California, police will be able in 2008 to take DNA samples from anyone arrested for a felony, whether the person is convicted or not, under a law approved by voters in November.'

For those that think you can just have the record expunged if you are found innocent, here's the fine print from the statute. (Source is here [ca.gov], page 143):

(a)A person whose DNA profile has been included in the data bank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank program pusuant to the procedures set forth in subdivision (b) if the person has no past or present offense or pending charge which qualifies that person [for inclusion] and there is otherwise no legal bases for retaining the specimen or sample or searchable profile.

(b)Pursuant to subdivision (a), a person who has no past or present qualifying offense, and for whom there otherwise is no legal basis for retaining the specimen or sample or searchable profile, may make a written request to have his or her specimen and sample and searchable database profile expunged from the data bank program if:

1. Following arrest, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense as set forth [earlier] or if the charges which served as the basis for including the DNA profile [in the data bank] have been dismissed prior to adjudication by a trier of fact;
2. The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed;
3. The person has been found factually innocent of the underlying offense [pusuant to statute]; or
4. The defendent has been found not guilty or the defendent has been acquitted of the underlying offense.

(c)(1)The person requesting the data bank entry to be expunged must send a copy of his or her request to the trial court of the county where the arrest occured, or that entered the conviction or rendered disposition in the case, to the [lab], and to the prosecuting attorney of the county in which he or she was arrested or, convicted, or adjudicated, with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition or writ.

Emphasis mine. So even if you jump through the damn complicated hoops, a judge can just say "No" and you are done--it's there for good. That's some great law, California! As for the earlier poster that thinks this is OK because we leave DNA everywhere anyway, like Gattaca--that movie did not represent this situation as a GOOD THING. It was a dystopian vision, not something to begrudgingly accept.

Re:DNA is largely similar for close relatives

[prockcore]

They just got a recent mass murder case solved when a daughter of a suspect volunteered to give a DNA sample, when he refused.

No, what they got was sufficient cause for a warrant.

They used the daughter's DNA to obtain a warrant for *his* DNA.

Re:Illegal search and seizure

[Martin Blank]

Seems like what California passed is not unconstitutional, because it involves plenty of safeguards. This is typical unresearched crap getting past submitters and editors that makes Slashdotters get all up in arms.

The law was passed as Prop 69 last year. Yes, it requires that eventually all people convicted of felony charges and certain misdemeanor charges provide DNA samples, and all persons convicted of a felony under the care or direction of the California Penal System (in custody or on parole or probation) provide samples. In addition, it laid out very specific rules for what to do with DNA of people not charged or found not guilty. Of note from California Penal Code Section 299 [ca.gov]:

(a) A person whose DNA profile has been included in the data bank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank program pursuant to the procedures set forth in subdivision (b) if the person has no past or present offense or pending charge which qualifies that person for inclusion within the state's DNA and Forensic Identification Database and Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile.

(b) Pursuant to subdivision (a), a person who has no past or present qualifying offense, and for whom there otherwise is no legal basis for retaining the specimen or sample or searchable profile, may make a written request to have his or her specimen and sample destroyed and searchable database profile expunged from the data bank program if:
(1) Following arrest, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense as set forth in subdivision (a) of Section 296 or if the charges which served as the basis for including the DNA profile in the state's DNA Database and Data Bank Identification Program have been dismissed prior to adjudication by a trier of fact;
(2) The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed;
(3) The person has been found factually innocent of the underlying offense pursuant to Section 851.8, or Section 781.5 of the Welfare and Institutions Code; or
(4) The defendant has been found not guilty or the defendant has been acquitted of the underlying offense.

Basically, if a person is found not guilty or acquitted, or charges have been dropped for at least 180 days and there is no retrial or appeal pending (this is covered later), then the person may submit a written request to have the record expunged and the sample destroyed. The law basically requires that the request be granted as long as a few things are included, none of which are easily avoided because of the wording of the law.

Re:I'm just wondering if criminals will use a DNA

[scaryfish]

This would work even better if you had access to a lab. The majority of DNA fingerprints are done using microsatellite repeats. These are amplified and analysed using Polymerase Chain Reaction (PCR). Theoretically you could get hold of someone elses DNA, and if you knew the particular microsatellites the authorities used, just PCR it. Sprinkle some of that PCR product around, which will be about 100,000,000 times more concentrated than any biological sample, and you're done.

This is going to be a big issue FAST

[hotspotbloc]

In January 2005 the Truro, MA Police Department announced that they wanted to collect DNA samples from 800 men, the vast majority of the town's male population, in hopes of solving a woman's murder who's solution have alluded the local authorities for three years. The recommendation originated with FBI Investigators assisting with the case. The chilling comment came from Cape and Islands District Attorney Michael O'Keefe who said that investigators "will be compelled to look at why people won't" submit a DNA sample.

What happens if mass testing becomes "routine" throughout the US? The fair and proper terms for the disposal of DNA samples of vindicated people is going to become a big, big thing. And please, don't give me "if you're innocent you have nothing to fear". DNA evidence can easily be altered or corrupted within the first few hours of collection. Especially if you have a sample already in hand. A very uncommon thing today but who can say about tomorrow.

We all know the answer to these questions:

Will the DNA sample of a vindicated person be disposed of after the trial, after all appeals or never? Never

Will the refusal to voluntarily give a DNA sample subject you to further scrutiny than a similar person who willingly submits? Yes

Will employers someday within the next ten years require a DNA sample for employment, similar to how most major retail chains require a test for legel and illegal drug use (Like Wal-Mart or Home Depot)? Yes

Will the US Congress do anything to protect the rights of the individual into this intrusion into one's privacy? No

Welcome to the New Amerika. Please leave your quaint notions of personal freedom at the border.

Here and Now : Truro DNA Case - 1/12/2005 [here-now.org]
Boston.com / News / Local / DNA testing troubles some in Truro [boston.com]
CBS News ACLU Slams Mass DNA Collection [cbsnews.com]
USATODAY.com - ACLU seeks end to Mass. DNA collections [usatoday.com]
Cape Cod Times article: "New England town abuzz over DNA dragnet" [unknownnews.org]

Re:No different from fingerprint info etc

[ikkonoishi]

No they couldn't

http://www.usdoj.gov/04foia/referenceguidemay99.ht m#how [usdoj.gov]

Likewise, files relating to another person regarding a matter the disclosure of which would invade that person's privacy ordinarily will not be disclosed. For example, if you seek information that would show that someone else (including even your spouse or another member of your immediate family) has ever been the subject of a criminal investigation -- or even was mentioned in a criminal file -- you will be requested to provide either: (1) a statement by that other person, authorizing the release of the information to you, that has been signed by that person and either was witnessed by a notary or includes a declaration made under penalty of perjury (using the language quoted in the preceding paragraph), or (2) evidence that the subject of your request is deceased, such as a death certificate, a newspaper obituary, or some comparable proof of death. Without proof of death or the subject's consent, in almost all cases the Justice Department will respond to a request made for information concerning another person's possible involvement in a law enforcement matter by advising that it will "neither confirm nor deny" the existence of responsive records. Such law enforcement information about a living person is released without that person's consent only when no privacy interest would be invaded by disclosing the information, when the information is already public or required to be made public, or when there is such a strong public interest in the disclosure that it overrides the individual's privacy interest.

Also due to the fees [usdoj.gov] involved making such a wide request would be hideously expensive.

Re:Illegal search and seizure

[Atmchicago]

(c)(1)The person requesting the data bank entry to be expunged must send a copy of his or her request to the trial court of the county where the arrest occured, or that entered the conviction or rendered disposition in the case, to the [lab], and to the prosecuting attorney of the county in which he or she was arrested or, convicted, or adjudicated, with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition or writ. (thank you jeblucas!)

See that last sentence? A judge can just tell you to go screw yourself if he so chooses anyway!

Re:Illegal search and seizure

[Anonymous Coward]

This really works better if you post it first [slashdot.org]

Otherwise everyone just points and laughs at how you're trying so hard to hide section (c) where they tell you that they can reject your request for any reason without review or appeal.

Re:Illegal search and seizure

[srmalloy]

(a) A person whose DNA profile has been included in the data bank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank program pursuant to the procedures set forth in subdivision (b) if the person has no past or present offense or pending charge which qualifies that person for inclusion within the state's DNA and Forensic Identification Database and Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile. (emphasis mine)

And now that they have the right to take the sample, all it takes is a simple addition to the Penal Code stating something like "All forensic evidence collected pursuant to a felony investigation shall be maintained in storage for a period of not less than twenty-five years." Voila. Instant "legal basis for retaining the specimen".

Re:Been doing it for awhile

[plague3106]

Maybe to protect yourself against the government should it decide to throw out the constitution?

Re:Been doing it for awhile

[AK Marc]

A 5.56mm rifle cartridge will go through most bullet proof vests. A 7.62mm cartridge will go through all of them.

Type III protects against 7.62 mm full metal jacketed bullets (U.S. military designation M80), with nominal masses of 9.7 g (150 gr) impacting at a velocity of 838 m (2750 ft) per second or less.

If that's not enough, you can step up to type IV. But there exists no armor qualified to stop .50 BMG (though it is quite posible that IV will stop it, especially at the edge of the 1+ mile effective range of the .50 BMG).

But, given the numbers with which these exist and the rarity of their use in a crime (ban them in CA when there has never been a crime in CA using them) just seems stupid.

Re:Nothing to Fear

[richwmn]

Actually there is a precident to this. Years ago Congress mandated motorcycle helmet laws, also using the highway funds as an inducement. One or more states bucked and took it to court. It was held that funds collected within a state for highways could not be with held. Several states then revoked their helmet laws. The difference is that enough people in state offices feel that the drinking laws are appropriate so that it has not been challenged.

This hits close to home - literally

[eric2hill]

I live in Wichita, and I have an uncle that was actually a better match to BTK than Dennis Raider. He graduated from the same university 2 years earlier, lived closer to the railroad tracks, and goes by the name Buk. Buk is only one letter off from btk, btw.

The police came to his house. His wife opened the door. The police asked if they could have a swab of his DNA. He didn't resist, and the police were very polite through the whole ordeal.

Now, in this case there was no police brutality, no coersion, no force, etc. Just a simple "may we get a swab of your DNA". My uncle had the right to say no, but obviously the police would have held him under the microscope.

There are really two separate issues in play here.

First, do the police have a right to request DNA evidense from a potentical suspect. I believe they do have the right to ask. I also believe the fifth ammendment gives the right to not incriminate yourself, so you do have the right to say no. The police will still consider you a suspect, but that's the way the law works.

Second, (and more importantly) once the police have cleared your name, does the DNA evidense get thrown away or warehoused? Everything said in the local papers and news has been that the evidense will get thrown away, but it would be nice to have some confirmation of that fact. I'll tell you that if the evidense doesn't get thrown away, the DA is going to get an ear-full from some 1300 of our swabbed citizens.

Side note, I actually have a family member that works at the prision where Dennis is being held. He said that Dennis didn't like the food. <g>

Re:Been doing it for awhile

[HarryGenes]

As a professional using DNA for human identity every day, I can assure you that your fears are completely unfounded. UNLIKE a fingerprint (ink and thumb concept), a DNA 'fingerprint' is very incomplete. It is more like the biometric fingerprint. All a biometric reader sees is a handful of specific points to use as points of comparison. The DNA fingerprint works like that. It takes a handful of specific 'markers' that can help distinguish people. A DNA match in a crime or paternity or whatever is not a nucleotide base by base comparison. It is using specific differences to statistically support the match. It is entirely plausible for an innocent person to have a profile that matches another person. In fact, identical twins have identitical DNA. DNA evidence alone will never convict or acquit on its own. There has to be something else. For example, if the DNA match demonstrates a 1 in 3 million liklihood of it being the same person, one can imagine only one person in LA could have been the source of the DNA. That along with other physical and emperical evidence (witnesses saw the white bronco, OJ had motive, etc.), it becomes plausible that it is the same person. While I do worry that insurance companies can get information about diagnostic tests, there is no need to fear insurance companies getting a hold of DNA profiles from criminals. That data is essentially useless for disease information or anything else. Put your conspiracy theories back in your pocket and relax. Personally, I'd rather Big Brother had posession of my CODIS profile than my fingerprints which are much easier to plant or end up in innocent places- city streets, etc. If someone has a fingerprint card, they have all my fingerprint information. If somebody has my CODIS profile, they can't do anything useful.

This is already law in the UK

[IIH]

This already happens in the UK, if you are charged the police can take DNA samples, etc, and under laws passed a few years back, keep them as long as they like, even if the charge proves groundless. (previously you could witness them being destroyed)

It's going to be a close race between the UK and the US as to which becomes the full police state earlier!

Re:This is going to be a big issue FAST

[rampant poodle]

The original precedent was set in the late 1980s in Narborough, Leicestershire, UK. Two teenage girls were raped and murdered. As part of the investigation all adult males, (around 5,000), in several villages were required to give DNA samples. One fellow, with the unlikley name of Colin Pitchfork, was a match. He became the first person convicted of a crime through DNA evidence.

The case also provided another first as a local dishwasher/dullard, Richard Buckland, became the first person ever exonerated through the use of DNA. There was a fair amount of evidence that pointed to him. After a long interrogation he even confessed to one of the murders. It appears that he did "do some things" with one of the girls after finding her already dead. However, his DNA did not match the material recovered from either scene.

Mandatory DNA samples

[mrogers]

In California, police will be able in 2008 to take DNA samples from anyone arrested for a felony, whether the person is convicted or not

In the UK, police can already take a DNA sample if you're arrested for any crime (even if you're not charged, let alone convicted). Samples are kept indefinitely and added to the national DNA database [theregister.co.uk], which could be sold to private companies [guardian.co.uk] or cross-referenced with the National Identity Register [computerweekly.com] to find out the subject's current name and address.