In New Mexico, communists who fail to register their party affiliation with the state commit a felony. Under New Mexico’s DNA databanking law, if they are caught they are required to submit a DNA sample to the department of public safety. In Idaho, consensual sodomy with a partner other than your spouse constitutes a sex-crime felony. Those unfortunate enough to be caught in the act are similarly required by law to submit a tissue sample to the state’s DNA databank for the purposes of preventing future sex crimes. And if Governor George Pataki is successful in the next legislative session, New York will begin collecting genetic material from any person convicted of a misdemeanor, such as resisting arrest or disorderly conduct as a result of peaceful civil disobedience.
In an age of biotechnology and computers, we are all but a needle-stick away from disclosing hereditary-disease susceptibilities, familial relationships and identifying information. Anyone who values privacy should therefore be concerned that US law-enforcement agencies are amassing ever larger portions of the general population’s DNA while neglecting to implement measures that would protect the privacy and presumptive innocence of citizens. And because DNA evidence is currently enjoying an unprecedented degree of bipartisan enthusiasm, these gradual developments have tended to be sheltered from the criticism that might otherwise confront such policies.
Not that DNA evidence’s celebrity isn’t well deserved. It is many rape victims’ best hope for identifying their assailants and law enforcement’s most penetrating method of apprehending serial offenders. It can be credited with triggering a re-examination of the nation’s capital punishment system by exonerating eight death-row inmates. Like its predecessor, the fingerprint, DNA profiles are a reliable means of identifying individuals (except in the case of identical twins). But glib analogies to fingerprints obscure important differences. DNA samples can reveal far more information than fingerprints, including sensitive medical conditions, traits or a person’s biological parentage. In addition, while fingerprints are unique to every individual, genetic profiles are partially shared among blood relatives. Thus, databanks contain identifying information on nonoffending relatives of people explicitly covered by databanking statutes. Finally, because we shed our genetic calling cards in a trail of hair follicles, skin flecks, saliva aerosols and finger smudges, DNA can also provide a trace of our activities.
DNA databanks are premised on statistics indicating that individuals convicted of a serious violent offense often commit other violent offenses that leave behind incriminating DNA. Tissue samples, usually in the form of a blood sample or cheek swab, are thus collected from offenders covered by their state’s databank laws and are analyzed using a technique called “profiling,” which detects genetic variations among individuals that, at least as currently understood by geneticists, have no biological function. The resulting data are then computerized so that profiles produced from crime-scene samples can be compared with those already in the database, allowing authorities to eliminate certain suspects or target those whose profiles match. In effect, databanks provide a means of genetically frisking anyone who has ever committed a covered offense for any crime in which DNA has been recovered.