The previous installment of this series described counsel’s answers to questions as to how DNA profiling is different from fingerprinting. After pointing out that “there are profound privacy concerns associated with the government’s collection of an individual’s DNA” because “when you evaluate the entirety of an individual’s DNA, there is a great deal of personal information contained there,” counsel for Mr. King added that

Now, the government’s response to that is essentially the “just trust us” defense; namely that the government is not looking at all that information, it is only looking at a certain subset of that information. But that has never been how this Court has analyzed privacy interests, at least outside the special needs context. Probably the closest analog is this Court’s decision in Kyllo v. United States, where the Court said that it was of no moment that the heat-sensing device that was at issue in that case did not detect any information about the intimate details of activities within the home.

I think this is inaccurate (or at least incomplete, as oral argument often is). … [Read the full posting]