Tag Archives: Maryland v. King

The Oral Argument in Maryland v. King — Part IV

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]

The Oral Argument in Maryland v. King — Part III

At the oral argument in Maryland v. King, the Justices wanted to know why DNA collection and databases were more personally intrusive or destructive to other privacy interests than fingerprint collection and databases. In response, Mr. King’s counsel advanced two formal, doctrinal points: He questioned whether fingerprinting even amounted to a search (because fingers are external and visible); and, referring to the limits on the “special needs” doctrine (see yesterday’s posting), he emphasized that fingerprint systems create a permanent record of individual identity for authentication of identity, whereas, at the moment, DNA is primarily used for criminal intelligence purposes (that is, for solving crimes). He also mentioned the most fundamental point — that DNA samples reveal more about an individual than his fingerprints — but the Justices did not pursue it directly.

Let us look at the exchanges on the nature of fingerprinting. Justice Alito focused on the methods for collecting fingerprint and DNA samples when he asked:

JUSTICE ALITO: Well, do you think the intrusion is worse when you just take a swab and you go inside somebody’s cheek, as opposed to rolling fingerprints?* Which is the greater intrusion?

Apparently, Mr. King’s position was that because the swab goes into the mouth, DNA sampling is the more invasive procedure:

MR. SHANMUGAM: Well, we think that it is settled that intrusions into the body constitute a search for Fourth Amendment purposes.

JUSTICE ALITO: Which is [the greater intrusion?]–

MR. SHANMUGAM: I suppose that the argument could be made, Justice Alito, that there is a similar trespass on the person and, therefore, a search when fingerprints are collected. I would note parenthetically that in the first half an hour of this argument we heard no explanation either by the state or by the federal government as to their theory as to why fingerprinting is constitutional. Now, we —

Justice Alito persisted in his demand for a more satisfying explanation of the difference:

JUSTICE ALITO: Well, the thrust of a lot of what we have been presented with in the briefs and what we have heard this morning — and by the way, I think this is perhaps the most important criminal procedure case that this Court has heard in decades — the attorney for the State began by listing a number of crimes just in Maryland that had been solved using this. So this is what is at stake: Lots of murders, lots of rapes that can be — that can be solved using this new technology that involves a very minimal intrusion on personal privacy. But why isn’t this the fingerprinting of the 21st century? What is the difference? If it was permissible — and it’s been assumed to be so for decades — that it is permissible to fingerprint anybody who’s booked, why is it not permissible to take a DNA sample from anybody who is arrested?

MR. SHANMUGAM: Justice Alito, we think that fingerprinting is distinguishable on three grounds. First of all, as a practical matter, an individual’s DNA contains far more information and far more personal information than an individual’s fingerprints. But as a doctrinal matter, we think that fingerprinting is distinguishable —

JUSTICE ALITO: Well, as to the first, in our cases involving searches for — where a urine sample is taken to determine drug use, the urine can be analyzed for all sorts of things besides the presence of drugs, and the Court has said in those cases, we are only going to consider that — we are considering that this is a reasonable search with respect to the determination of whether the person has taken drugs, not all the other information … that can be obtained from it.

MR. SHANMUGAM: But that is because, Justice Alito, in those cases, cases like Skinner and Von Raab and Vernonia, there was a special need apart from the ordinary interests in law enforcement. And here it is clear that the primary purpose of the Maryland statute and, indeed, the similar statutes on the federal and state levels was the ordinary interest in crime control, to solve unsolved crimes. And that is why those special needs cases are distinguishable, and I think that’s why the state essentially disavows any reliance on the special needs doctrine.

So far, the question of how collecting DNA compares in its intrusiveness to recording fingerprints has gone largely unanswered. Justice Breyer certainly was not satisfied that the degree of intrusion was greater for a cheek swab:

JUSTICE BREYER: [I]f I look in terms of intrusion —  [and] I am not talking legally, I am talking practically — … I can argue that it is certainly a much lesser intrusion than fingerprints. You [only] have to stand there, have the thing rolled, stick out your tongue. I mean, it’s hard to say it’s more [intrusive — at least] for me. I’m not saying for others. …

Justice Breyer’s suggestion that having a swab inserted into one’s mouth is less invasive than having one’s fingers inked and rolled onto a card hardly seems convincing. My intuition is that the swabbing adds to the demeaning and humiliating nature of a modern, custodial arrest more than fingerprinting. Nevertheless, any difference in the level of offensiveness is slight, and the very question seems to miss the real point. If the limited invasion of the body were the decisive factor, then the government could sidestep the concern entirely by scraping some cells from the surface of the skin. A sticky pad might supply enough DNA for profiling, making the procedure indistinguishable from fingerprinting in terms of the physical intrusion.

At this point, then, we are left with one distinction between fingerprinting and DNA sampling — that “[f]irst of all, as a practical matter, an individual’s DNA contains far more information and far more personal information than an individual’s fingerprints.” Obviously, this concern about informational privacy has nothing to do with the process by which the information is obtained. It would apply even if DNA could be analyzed at a distance, with no physical contact between the police and the suspect.

But the Court did not immediately pursue this proffered distinction. Instead, Justice Kagan asked:

JUSTICE KAGAN: What are your other two distinctions?

MR. SHANMUGAM: With regard to fingerprinting, we think that, notwithstanding the physical intrusion involved with taking an individual’s fingers and putting them on the pad, that the better view is that fingerprinting is not a search, and to the extent that this Court has addressed the question it has suggested that fingerprinting is not a search because an individual has no expectation of privacy in their fingerprints because their fingers are constantly exposed —

Now, there are some lower court cases that take this point of view, but it seems to undercut Mr. King’s position. If fingerprints are not a search because the fingers that produce them are constantly exposed to public view, then DNA profiles are not a search because cells that contain DNA also are constantly exposed. To be sure, the Supreme Court has suggested (and held) that the Fourth Amendment does not shield features such as one’s voice and face that are constantly exposed to public view, but the Court has never considered whether recording or comparing fingerprints constitutes a search. The few Supreme Court cases finding fingerprints to have been unconstitutionally obtained have simply treated the detention of the individual–a seizure of the person–as the event that triggered the protection of the Fourth Amendment, and the personal interest in freedom of movement is the same for DNA collection as for fingerprinting.

It was at this point that Justice Breyer made the remarks quoted above, and he went on to express skepticism of the informational privacy claim as well:

JUSTICE BREYER: And by the way, when you talk about what information you could get out of it, there is a brief filed by leading scientists in the field. And I came away from the brief thinking there isn’t much more information, because fingerprints can be abused, too. Of course, you can learn loads from fingerprints. Photos, try photos; my God, you could learn a lot: Who he was, who — you know, so all these things could be abused. But I came away from that brief, frankly, to think, well, in terms of the possibility of abuse, it’s there, but [it’s also present with] these other things, photos, too. … Now, you tell me in light of that hostile question (laughter) [how] it’s different from fingerprints and worse because of one, two, three, and I will write it down and I’ll remember it.

JUSTICE SCALIA: He gave us one and two. I have been waiting for three. Will you drop the shoe? (Laughter.)

MR. SHANMUGAM: Let me — I will gladly get to three with regard to fingerprinting … . [W]e think fingerprinting is different, above and beyond the fact that we think … that fingerprinting is not a search, … because fingerprinting as it is currently practiced does serve a special need. The primary purpose of fingerprinting is to identify an individual who is being taken into the criminal justice system.

If Justice Breyer did write down Mr. King’s proposed distinctions, he might have the following list: (1) DNA samples contain more information than fingerprint records; (2) collecting and using fingerprint records should not be considered a search because fingers are visible; and (3) fingerprints are taken on arrest primarily to ascertain whether an individual is who he claims to be and to see if he has a criminal record (and only secondarily to connect arrestees to crimes through comparison to latent prints). The latter two proposed distinctions are important only with respect to nuances of contestable caselaw. They do not directly address the fundamental question of the relative invasion of personal interests. In this regard, the only direct answer on the list is that “an individual’s DNA contains far more information and far more personal information than an individual’s fingerprints.”

Still, this is an important answer. I had expected the informational privacy issue to provoke more discussion. Although counsel for Mr. King stressed the issue in a reply to Justice Sotomayor,** only Justice Breyer picked up on it, and in doing so, he became the first jurist (to my knowledge) to recognize that fingerprint patterns are not entirely devoid of personal information.

Fingerprints have a genetic component, and the scientists’ brief to which Justice Breyer referred has a three-and-one-half page appendix listing “some studies reporting diseases associated with fingerprint features.” This brief (discussed in “Scientists’ Brief” on CODIS Loci: Q & A) focused on the information content of CODIS profiles, not samples. It suggested that even these profiles contained somewhat more personal information (being fully inherited characteristics) than fingerprint patterns (being influenced by both genes and the uterine environment).

The brief does not dispute — indeed, it presupposes — that DNA samples are replete with information. Yet, the issue of sample retention did not arise in the argument, and a few of the Justices even suggested that the ease with which police and private parties can acquire samples in other ways might defeat a reasonable expectation of privacy. The next posting will turn to this issue of “shed” or “abandoned” DNA.

Notes

* “Rolling” refers to the process by which each inked digit is rotated slightly from side to side while pressed on a cardboard surface to yield a permanent, ten-print card. Digital scanning is growing more common, but Justice Alito may have picked the messier inking process as the procedure to be compared because, for many years, lower court had upheld as constitutional fingerprinting arrestees in that manner, and Justice Alito regarded these holdings as correct.

** JUSTICE SOTOMAYOR: I was interested in [whether] there is something inherently dangerous about DNA collection that is not the same as fingerprinting.

MR. SHANMUGAM: Well, there is, … . [W]e certainly believe that there are profound privacy concerns associated with the government’s collection of an individual’s DNA. And leaving aside the question of how much personal information is contained in the 13 loci — and we certainly think that there is significant personal information even as to those loci — I don’t think there can be any dispute that when you evaluate the entirety of an individual’s DNA, there is a great deal of personal information contained there. And in our view, that has to be taken into account when engaging in balancing.

Cross-posted to Forensic Science, Statistics, and the Law.

The Oral Argument in Maryland v. King — Part I

Oral argument before the Supreme Court in Maryland v. King took place on Tuesday, Feb. 26.1/ Alonzo King, Jr., had been arrested in 2009, then charged and convicted of an assault. A Maryland law requires defendants charged with certain crimes to provide a DNA sample–before they are even tried. On this basis, King’s identifying DNA profile was obtained and included in a database of DNA profiles from arrestees and convicts, to be checked periodically against DNA profiles recovered from crime scenes.

King’s DNA profile played no role in the assault case. The state did not want it for that prosecution. Rather, it wanted to see if his DNA might connect him to some unsolved crime. Sure enough, it linked him to an unsolved 2003 rape of a 52-year-old woman. In the ensuing trial for that crime, the state proved that King, then 19 and wearing a mask, broke down the door, held a gun to the woman’s head and sexually assaulted her. He was sentenced to life in prison.

The question before the Supreme Court was whether the state’s law mandating routine DNA sampling before conviction violates the Fourth Amendment’s protection against unreasonable searches or seizures.

I had the worst seat in the house — a small wooden chair against the far wall behind the farthest row of permanent seats. That hardly mattered. From any distance,  the argument would have appeared kaleidoscopic, with patterns forming and shifting apparently at random. Nevertheless, one major theme emerged from the questions: Is the rationale for upholding Maryland’s law confined to arrestees? Several Justices clearly were concerned that upholding this law would permit states or the federal government to acquire the DNA of everyone.

The Chief Justice introduced this line of questioning earlier in the argument for the state:

CHIEF JUSTICE ROBERTS: Your procedure limits the collection to certain violent offenses, right?

MS. WINFREE: It does, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: But your argument would not be so limited, would it? Under your theory, there’s no reason you couldn’t undertake this procedure with respect to anybody pulled over for a traffic violation?

MS. WINFREE: Well, in Maryland, it’s not just the fact that we have those — those violent crimes and burglaries. Actually, we don’t collect DNA unless someone is physically taken into custody. Now, with respect to —

CHIEF JUSTICE ROBERTS: Well, I understand. But there’s no reason you couldn’t, right? I gather it’s not that hard. Police officers who give Breathalyzer tests, they can also take a Q-tip or whatever and get a DNA sample, right?

MS. WINFREE: Well, what I would say to that is that with respect to a traffic stop, this Court said in Berkheimer that a motorist has an expectation that a traffic stop is going to be relatively brief and temporary, that he or she will be given a citation and sent on their way.

CHIEF JUSTICE ROBERTS: Well, how long does it take to — to undergo the procedure? You say, ah and then —

MS. WINFREE: It doesn’t take long, but what I was suggesting is that because of the nature of a traffic stop, this Court might well decide that a motorist has a reasonable expectation of privacy not to —

These answers are unsatisfying. In Illinois v. Caballes, 543 U.S. 405 (2005), the Court deemed the nature of a traffic stop irrelevant to the reasonableness of a search for something unrelated to the stop. Specifically, the Court rejected the argument that walking a drug sniffing dog around a car while an officer wrote the citation “converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful.” Given that “governmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest,'” the Court concluded that the dog-sniff was not itself a search, and the traffic offense fully justified the temporary restraint on the driver’s freedom to travel was fully justified.

Rather than “the nature of the traffic stop” creating a reasonable expectation of privacy that would make the traffic-stop DNA sampling a search, it is the nature of DNA sampling (as currently conducted) that has this effect. Justice Scalia emphasized this when he later commented:

If there’s no reasonable expectation of privacy, there’s no search. But here, there is a search. You have a physical intrusion. You — you pull a guy’s cheek apart and stick a — a swab into his mouth. That’s a search — a reasonable expectation of privacy or not. 2/

Soon afterward, Maryland’s Chief Deputy Attorney General took another stab at explaining why its justifications for the law would not subject everyone to compulsory DNA sampling:

MS. WINFREE: Well, happily we don’t have to decide that one today. But what I — the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on — based on probable cause surrenders a substantial amount of liberty and privacy.

The U.S. Department of Justice’s Deputy Solicitor General elaborated at the outset of his presentation:

MR. DREEBEN: Thank you, Mr. Chief Justice, and may it please the Court: Arrestees are in a unique category, they are on the gateway into the criminal justice system.    They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights. The arrest itself substantially reduces the individual’s expectation of privacy. The arrestee can be searched and sent to arrest. His property, whether or not connected with a crime, can be inventoried. When he’s taken into the jail situation, he can be subjected to a visual strip search. If he’s admitted to the population of the jail, he’ll be given a TB test and a thorough medical screen. These are not individuals who are like free citizens, and they are not like free citizens in another significant respect. Arrestees are rarely arrested for the first time. They tend to be repeat customers in the criminal justice system. Up to 70 percent of arrestees have been previously arrested.

The trouble with this argument should be obvious. Of course, arrestees have been arrested and may be searched in ways inapplicable (thankfully) to people who not currently in police custody. But the fact that “they are not like free citizens” does not necessarily mean that the justifications for taking their DNA are not just as powerful when applied to the general population. One must go beyond diffuse talk of surrendering “a substantial amount of liberty and privacy” to adequately distinguish this group from the general population for the purpose of DNA identification testing. The argument that arrestees are different just because they have been arrested (and are likely to be re-arrested) is empty.

One thing that gives the difference claim some content is the state’s argument that DNA databases do or can provide significant information for pretrial supervision of arrestees. Much of the hour’s argument focused on Maryland’s contention that the “purpose of the statute is to enable the state to identify perpetrators of serious crimes and — and to use the information to make bail determinations for people who are validly in their custody.” Part II of this series will describe the Justices’ often skeptical questioning on this point.

Notes

  1. For the same-day transcript, see http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-207.pdf.

  2. On its face, this comment seems to be internally inconsistent. The first sentence asserts that there can be no search without a reasonable expectation of privacy. The third says that is a search even if there is a reasonable expectation of privacy. I take it that Justice Scalia means that one need not fuss with reasonable-expectation test when there is a traditional trespass to gather information. This was the position that the Justice articulated for a majority of the Court in United States v. Jones, 132 S.Ct. 945 (2012).

Cross-posted to Forensic Science, Statistics, and the Law.

“A DNA Fingerprint Is Nothing More than a Long List of Numbers”

In Our DNA Is Our Blueprint, I suggested that the Supreme Court would be wise to avoid describing DNA as the equivalent of a building’s blueprint or a medical history. The Court also should be wary of efforts to dismiss a DNA identification profile as a mere “string of numbers” with no further implications. Brief for the United States Amicus Curiae Supporting Petitioner, Maryland v. King, No. 12-207, Jan. 2, 2013, at 2. According to the government:

The analysis of the genetic material … reveals nothing private about the arrestee at all. … A DNA fingerprint is nothing more than a long list of numbers … they do not encode protein sequences — that is, they do not “code” for physical traits, propensities, or susceptibilities. … A DNA fingerprint therefore yields no private information at all. … In short, the number string does not give rise to any inference about the personal information or characteristics of the person to whom it uniquely belongs. Obtaining those numbers therefore does not meaningfully invade an arrestee’s privacy.

Id. at 19-22.

Here, I demonstrate that inferences from a CODIS profile to facts that individuals would reasonably regard as private are not inherently impossible. Whether this fact weighs heavily in favor of the individual is, of course, a further question. Parts I and II probe the government’s contention that obtaining “the number string” “does not meaningfully invade an arrestee’s privacy” because there is “no private information at all.” Part III offers a few thoughts on what follows if the government is wrong about the information content of the DNA sequence data.

I. Strings of Numbers

A social security number is a string of digits, but until 2011, the string contained an area code based on the state in or from which the application for a number was made. For example, a pre-2011 number starting with 520 refers to an application from within Wyoming. Social Security Administration, Social Security Number llocations, Jan. 2, 2013. This information might not seem intensely private, but the information content is not zero.

Today’s social security numbers are a random nine-digit string (with some possibilities excluded). Social Security Administration, Social Security Number Randomization, Nov. 29, 2012. CODIS profiles are different in at least three respects. First, parts of them could be close to (and therefore correlated with) disease-causing loci.  However, correlations that permit accurate inferences about health status from the profile itself are not known. See Scientists Brief on CODIS Loci, Jan. 3, 2013.

Second, in the future some parts of the profiles might be shown to play a causal role in gene regulation, affecting the quantity of a protein produced in a cell. Id. Indeed, one CODIS locus has been shown to participate in a regulatory system, but this does not mean that it is like a medical record. Brief of Genetics, Genomics and Forensic Science Researchers as Amici Curiae, Maryland v. King, No. 12-207, Dec. 28, 2012. The government’s brief suggests that if this situation were to change, the Fourth Amendment balancing would need to be re-examined. That also would be the case if correlations with more predictive power were to be discovered.

Finally, unlike numbers assigned by the Social Security Administration, a new CODIS profile does not emerge from a random-number generator every time a child is born. Rather, the child’s profile is a mixture of pre-existing numbers. A child inherits a random half of the father’s numbers and a random half of the mother’s numbers. This aspect of sexual reproduction has immediate implications for privacy.

II. Inherited Numbers Carry Some Information

The fact that seemingly empty numbers are inherited via sexual reproduction complicates the privacy analysis in several ways. It means that siblings will have numbers that, on average, are closer to one another than to unrelated persons and that a parent and child will have at least one of every two pairs of numbers in common. Consequently, a curious database administrator could compare profiles of pairs of arrested individuals to draw inferences about possible genetic relationships. Most inferences of specific relationships would be wrong–for example, many nonsiblings would show more similarities in their profiles than true siblings would. Nevertheless, many pairs could securely be said not to be parent and child.

Usually, these possible inferences would be unimportant. Most people are not my parents. But suppose a candidate for sheriff were a strong challenger in an upcoming election, and she, her husband, and her adult child (born during the course of the marriage) were arrested. The CODIS profiles could be used for parentage testing. A finding of nonpaternity would be proof of the candidate’s marital infidelity. The fact that “[a] DNA fingerprint is nothing more than a long list of numbers” does not mean the “fingerprint” is devoid of socially significant information.

III. Does It Matter?

The government’s brief points out that the CODIS system makes such abuses difficult to accomplish at the level of the national database (NDIS). See Brief for United States, at 19-20:

DNA identification profiles stored by CODIS — as Maryland law contemplates — have no identifying information associated with them. CODIS contains the number-string itself and information about the laboratory that generated it; only in the event of a “hit” in the database can the record ultimately be traced back to a particular arrestee. See CODIS and NDIS Fact Sheet.

But the state or local laboratory that prepared the profile does not need to trace it “back to a particular arrestee.” Someone there already knows to whom the profile belongs. Moreover, the hypothetical does not involve NDIS. It involves a corrupt sheriff intent on learning the CODIS profiles of known individuals from samples taken by his officers.

A more convincing response is that unusual, unauthorized, and unlikely privacy abuses are not weighty enough to overcome strong government interests in collecting biological material. Maryland retains the original DNA samples. It could test them for a large number of genetic conditions. Urine samples in drug testing programs could be examined for disease-related information. As the government points out, these possibilities do not render the collection and statutorily limited analysis and use of the material unconstitutional. Id. at 23-24.

The government goes too far, however, when it suggests that the risk of abuse is “irrelevant.” Id. at 24. The Court should not blind itself to the possibility of abuses of power, of bad faith, and of temptations to cut corners. But neither should it mistake the possible for the probable. Unless the possibilities for abuse are substantial, they should not invalidate a program that truly serves strong state interests.

Cross-posted to Double Helix Law

“Our DNA is Our Blueprint”

The brief for Alonzo Jay King, in the arrestee DNA sampling case, Maryland v. King, correctly maintains that “The collection of an individual’s DNA raises profound privacy concerns.” Respondent’s Brief, at 45. It then elaborates that

Our DNA is our blueprint: an individual’s DNA contains not only deeply personal information about the subject’s medical history and genetic conditions, but also information that can be used to make predictions about a host of physical and behavioral characteristics, ranging from the subject’s age, ethnicity, and intelligence to the subject’s propensity for violence and addiction. See, e.g., Center for Genetics Education, The Human Genetic Code–The Human Genome Project and Beyond (2007), tinyurl.com/cgegenome; Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. Med. & Ethics 153, 158 (2006).

Id. at 45-46. Regardless of how the Supreme Court decides the case, the Court would be ill-advised to uncritically repeat these assertions about (1) “our blueprint” and (2) “age, ethnicity, … intelligence, … violence and addiction.”

I. “Our Blueprint”

Does the human genome tell us as much about an adult human being as the blueprint of a building tells about the building? In the preface to a recent book cited in the brief, Harvard University population geneticist Richard Lewontin argues that the metaphor of “blueprints” is oversimplified if not misguided: “we expect genes ‘for’ not only skin color and eye shape but also intelligence, disease, and musical ability. [But] it is an error to suppose that the DNA sequence of an organism predicts its total nature and life history.” Another contributing author writes that “the genes most of us envision inside us, calling the shots and determining our characteristics, are myths.” A blueprint determines the height of a building, but genes (not yet known with any exactitude) give a range of response for the height of human being.

II. Predicting Age, Ethnicity, Intelligence, Violence, and Addiction

Yes, DNA sequences can “be used to make predictions about … age, ethnicity, and intelligence [and] violence and addiction.” So can a Ouija board or a horoscope. The two authorities cited in the brief do not maintain that such predictions are any good. The Australian report, Center for Genetics Education, The Human Genetic Code–The Human Genome Project and Beyond (2007), cautions that determination of the entire DNA sequence contained in the human genome will not enable geneticists to look at a person’s DNA sequence and predict everything about their appearance, behaviour and other characteristics.” Id. at 6. It does not even mention inferences about age, ethnicity, intelligence, violence, or addiction.

The other publication, by Rothstein and Talbott, does mention some of these characteristics, but only as the subjects of possible–and possibly specious–“claims.” These commentators wrote that “[i]t is likely that within a short period of time there will be claims of the ability to make behavioral genetic predictions about such matters as sexual orientation, intelligence, addictive behavior, musical ability, and temperament.” Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. Med. & Ethics 153, 158 (2006). It now is seven years since they made this prediction. Have any new claims been made? More to the point, have they been confirmed? Claims are cheap. Proof is hard.

Beliefs also are cheap, in the sense of being easy to acquire. Once acquired, they can be difficult to dislodge. A Supreme Court opinion that reinforces the popular dogma of genetic determinism would be irresponsible–and unnecessary. In upholding as constitutional the compulsory sterilization of “a feeble minded white woman,” the Supreme Court infamously wrote that “[t]hree generations of idiots are enough.” Buck v. Bell, 274 U.S. 200, 207 (1927). One such opinion was enough. The genome is not a medical history. No one can tell from my DNA what diseases I have had, how much I weigh, or how high my blood pressure is. Identical twins rarely die of the same disease. They have a less than 50/50 chance of having the same common diseases.

This is not to deny that the genome contains substantial information. Some of it is highly predictive or diagnostic of some conditions, like sickle-cell anemia. That alone is sufficient to raise “profound privacy concerns.”

References

  • Jordana T. Bell & Tim D. Spector, A Twin Approach to Unraveling Epigenetics, 27 Trends in Genetics 116 (2011) 
  • Genetic Explanations: Sense and Nonsense (Sheldon Krimsky & Jeremy Gruber, eds. 2012)

Cross-posted to Forensic Science, Statistics, and the Law.

Balancing versus Categorizing in Maryland v. King

The arrestee DNA case of Maryland v. King offers the Supreme Court the opportunity to address a fundamental issue of Fourth Amendment jurisprudence. The Amendment prohibits “unreasonable searches and seizures.” According to the briefs of Maryland and the United States, the established mode of ascertaining reasonableness is an ad hoc “totality of the circumstances” balancing of interests. The major individual interests would seem to be in keeping information about one’s identity and presence at certain locations private, and the dominant government interests are in investigating and solving cases.

These briefs rely on cases that balanced state and individual interests related to searches in limited circumstances–to create or mark the bounds of new, categorical exceptions, or to subject probationers and parolees to searches without a warrant or any well-defined categorical exception to the warrant requirement. Like most lower court cases on arrestee DNA sampling, the briefs do not explain why balancing should apply to DNA testing before conviction. Rather, they seem to assume that the reasonableness of searches flow from an immediate balancing of interests.

The competing, and more traditional view, presented in Alonzo King’s brief, is that it takes a categorical exception to permit a search without a valid judicial warrant. This brief argues that DNA sampling does not fall under an established exception to the general requirement of a search warrant and that ad hoc balancing is not the norm in determining the reasonableness of a search.

A critical case in this regard is Samson v. California, 547 U.S. 843 (2006). There, the Court held that parolees had no protection from warrantless searches to uncover evidence of crimes. It did so without purporting to create a new exception to this requirement. Moreover, it is hard to discern a satisfactory basis for such an exception. All the previous exceptions rest on the presence of a government interest above and beyond the discovery of evidence that would be useful in a criminal case against the target of the search (such as the government’s role as an employer in maintaining a drug-free workforce), an unusually pressing need to dispense with a warrant (as in a limited investigatory stop to acquire information about what appears to be an imminent or ongoing crime), or government conduct that is a milder invasion of personal liberty or privacy than a canonical search or seizure of the person (such as a limited pat down of the individual’s outer clothing). Writing for the Samson Court, however, Justice Thomas reasoned that because parole is “an established variation on imprisonment” with an express condition that the parolee is subject to warrantless searches, “petitioner did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852. Such language normally means that government conduct does not rise to the level of a search. If Samson had no reasonable expectation of privacy, then there was no search under Katz v. United States, 389 U.S. 347 (1967), and hence no need to create an exception to the rule that a search is presumptively unreasonable without a warrant  Thus, at least one prominent commentator (Kerr 2012, p. 318) reads Samson as eliminating the per se rule rather than creating a new exception. I tend to think that the Court is simply vacillating, with no guiding principles, between the two theories of reasonableness–the one that starts with warrants and the more open textured one advanced by Maryland and the federal government.

There is a rich literature on these two theories, but one would not know this from perusing the briefs. Certainly, some Justices have questioned the preference for warrants for years. The King case could test whether their doubts have spread to a majority of the Court, leading to a more flexible but less predictable framework for applying the Fourth Amendment across the board.

References

Cross-posted to Forensic Science, Statistics, and the Law

Scientists’ Brief on CODIS Loci

On November 9, 2012, the Supreme Court voted to review a case posing the following question: “Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?” In Maryland v. King, the state’s supreme court concluded that the protection against unreasonable searches and seizures forbids the state from collecting DNA from an individual whose true identity can be established with ordinary fingerprints. On December 28, 2012, the Supreme Court received a Brief of Genetics, Genomics and Forensic Science Researchers as Amici Curiae. Below are ten questions and answers about the brief.

Who contributed to the brief?

I did, and Hank Greely was an additional author. The scientists who participated in the writing are all active and distinguished researchers at medical schools (including Harvard, Yale, and Johns Hopkins) or universities (including Duke, Penn State, and Kings College, London). They include a former president of the American Society of Human Genetics, a past president of the American Board of Medical Genetics, Fellows of the American Association for the Advancement of Science, and members of the Institute of Medicine and the American Academy of Arts and Sciences.

Why did these law professors, medical and statistical geneticists, and molecular biologists submit an amicus brief?

The brief is intended “to inform the Court of the possible medical and social significance of the DNA data stored in law enforcement databases.” (P. 1). Advocacy groups, legal scholars, and some judges have asserted that the small number of features used in law enforcement DNA databases are predictive of health status (or soon will be). The brief attempts to clarify this issue.

Which side does the brief support?

The brief was submitted in support of neither side. It describes the nature of genetic information, the features of the genome used in law enforcement DNA databases, how those features are used in medical research, and whether they currently permit police, employers, or insurers to discern significant facts about a person’s present or future health status.

What conclusions does it reach?

Amici conclude that “[u]nlike medical genetic tests, law enforcement identification profiles have no known value for medical diagnosis or prediction of future health.” (P. 2).

That’s today. What about the future?

Amici caution that “no one can say with certainty what the future will bring, and it is possible that specific loci will be found to affect the operation of certain genes or to display correlations to disease states.” (P. 2). Nevertheless, they suggest that “it is unlikely that the identification profiles will turn into powerful medical diagnostic or predictive tools that can be used to infer disease states or predispositions by examining forensic database records.” (P.2).

 Does this mean that the “CODIS loci,” as the identifying features are called, have no medical significance?

Absolutely not. The DNA sequences have been used in medical research for some 20 years to hunt for disease-causing gene mutations. They have been studied for associations with diseases and traits such as longevity. The question the brief addresses is what kind of information can be gleaned from inspecting a database record.

 Doesn’t the highly publicized ENCODE Project prove that there is no such thing as “junk DNA”?

The brief contends that “debate over the fraction of the genome that is, in an evolutionary sense, ‘junk’ … is orthogonal to the matter before the Court.“ (P. 26). A section of the brief explains that the data sets and papers recently released from the international Encyclopedia of DNA Elements Project are important to further research into gene regulation and other matters, but they do not indicate that all DNA sequences are critical to health or other important traits. What “[t]he ENCODE papers show [is] that 80% of the genome displays signs of certain types of biochemical activity–even though the activity may be insignificant, pointless, or unnecessary.” (P. 32).

Well, how about other uses? Don’t the CODIS loci tell scientists a lot about a person’s ancestry and race?

Not really. The CODIS loci can reveal something about bio-geographic ancestry, but anthropologists and population geneticists use far more probative ancestry-informative and lineage markers to study genetic histories. That “race” is not a biological category is now well known. As for socially perceived race, “[a] CODIS profile could be used to calculate probabilities that someone would be described as Caucasian, African-American, or Hispanic, but categorical inferences would not be very accurate, and attempts to predict the census-type race of a person from a CODIS profile would seem pointless considering that apparent race already would be known.” (P. 36).

So the brief shows that there is absolutely no important information that can be deduced from a CODIS profile?

No, amici do not say that either. The brief explains that “[b]ecause children inherit all their DNA from their biological parents, the CODIS loci can be powerful tools for determining whether two people could be genetically related as parent and child. … [T]he most powerful genetic information other than identity that the CODIS profiles contain [would be] that two people are not parent and child” or “that two people were identical twins.” (Pp. 33-34).

 Where can I find the brief?

Here’s a pdf file. It should appear, along with other briefs, “soon” in the American Bar Association’s Preview of Supreme Court cases.

Cross-posted to Forensic Science, Statistics, and the Law.

The Department of Justice and the Definition of Junk DNA

In drafting an amicus brief in Maryland v. King, the case in which the Supreme Court is reviewing the constitutionality of routine collection of DNA before conviction, I decided it is important to clarify the term “junk DNA” if only because it gets tossed around in so many court opinions and briefs. The Department of Justice defines “junk DNA” as “[s]tretches of DNA that do not code for genes.” U.S. Dep’t of Justice, Nat’l Institute of Justice, DNA Initiative Training for Officers of the Court, Glossary, http://www.dna.gov/glossary/ (last visited Dec. 17, 2012). In scientific discourse, however, DNA does not “code for genes.” Rather, parts of genes encode proteins and RNAs. “Junk DNA” is not a synonym for the rest of the genome. It is a provocative and deprecated term for that “fraction of DNA that has little or no adaptive advantage for the organism.” Sean R. Eddy, The C-value Paradox, Junk DNA and ENCODE, 22 Current Biology R898 (2012). Some of what NIJ thinks is “junk DNA” is important to fitness. It is not “junk.”

NIJ’s sloppy treatment of terms like “genes” and “junk” is unfortunate, but in the end I decided the awkward definition was not important enough to snipe at in the brief. On a blog, however, one can be more snippy.

Crossposted to Forensic Science, Statistics, and the Law.