Monthly Archives: July 2011

Third Circuit Upholds Federal Arrestee DNA Database Law

In 2009, the United States District Court for the Western District of Pennsylvania made legal history. For the first time, a federal court held that the government lacked the constitutional power to compel individuals who had been arrested and charged with a crime to provide a DNA sample. Today, the Court of Appeals for the Third Circuit (one of the 12 appellate courts that sit one rung below the Supreme Court in the federal judicial system) reversed this ruling. Yet, both courts applied the “totality of the circumstances” standard for ascertaining the reasonableness of searches and seizures. What, then, accounts for the anticlinal outcomes?

Basically, the two courts took very different views of the individual’s Fourth Amendment interests and their role in evaluating the legislation. The following passages from the district court opinion and the opinion of the majority of the court of appeals are illustrative.

  • District Court: [T]he search in this instance is one that reveals the most intimate details of an individual’s genetic condition, implicating compelling and fundamental “interests in human dignity and privacy. See Schmerber v. California, 384 U.S. 757, 770 (1966).
  • Court of Appeals: Schmerber recognized society’s judgment that blood tests “do not constitute an unduly extensive imposition on an individual’s personal privacy and bodily integrity.”
  • District Court: [T]o compare the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling is pure folly. Such oversimplification ignores the complex, comprehensive, inherently private information contained in a DNA sample.
  • Court of Appeals: While we acknowledge the seriousness of Mitchell’s concerns about the possible misuse and future use of DNA samples, we conclude that these hypothetical possibilities are unsupported by the record before us and thus do not have any substantial weight in our totality of the circumstances analysis.

The district court was not reassured by the fact that DNA identification profiling currently is little more than a token of personal identity. On the basis of a student law review article, it feared that “DNA samples may reveal private information regarding familial lineage and predisposition to over four thousand types of genetic conditions and diseases; they may also identify genetic markers for traits including aggression, sexual orientation, substance addiction, and criminal tendencies.”

The majority of the en banc court of appeals was less fearful that the government would change its use of the samples to go beyond the current production and trawling of identification profiles. It observed that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. … At this juncture, … we consider the amount and type of personal information to be contained in the DNA profile to be nominal.”

Thus, the district court saw the retained samples as a potentially rich source of private information about the arrestee that the government might want to exploit some day (although it it did not explain why the government would be interested in performing genetic tests for 4,000 or more medical conditions). The court of appeals was content to uphold the status quo: “As currently structured and implemented . . . the DNA Act’s compulsory profiling of qualified federal offenders can only be described as minimally invasive–both in terms of the bodily intrusion it occasions, and the information it lawfully produces.”

Similar cases are pending before the Second and Ninth Circuits. I predict that both will uphold the federal law — over some vigorous dissents. When will the Supreme Court step in?


United States v. Mitchell, 681 F.Supp.2d 597 (W.D. Pa. 2009)

United States v. Mitchell, No. 02-2859 (3d Cir. Aug. 25, 2011) (en banc)

Junk Science in United States v. Pool

Having granted en banc review in United States v. Pool, 621 F.3d 1213 (9th Cir. 2010), the U.S. Court of Appeals for the Ninth Judicial Circuit could well produce as wild a set of conflicting opinions on DNA databases as it did in United States v. Kincade, 379 F.3d 813 (9th Cir. 2004).

The panel that heard the Pool case divided 2-1. Judge Callahan wrote an opinion upholding the federal law on taking DNA after an arrest but before a conviction that visiting Judge Lucero (of the Tenth Circuit) joined. Judge Lucero also wrote a separate opinion. Judge Schroeder dissented.

The briefs that informed these three opinions left something to be desired. Here, I’ll focus on one of my pet peeves–disingenuous or inane claims about the CODIS STR loci as a threat to privacy.

Appellant’s Opening brief (available from a link on EPIC’s website, along with a one-sided list of vaguely related articles) claims that “DNA profiles derived by STR may yield probabilistic evidence of the contributor’s race or sex.” [1] Probabilistic evidence of sex from autosomal STRs? The arresting officers or jailers need a genetic test for that?

Then the brief cites Simon Cole’s writing to support its sweeping statement that “scientific studies have debunked the notion that these regions of the genetic code are devoid of any biological function.” Yet, the brief cites no study that “debunks” the notion that the length polymorphisms of the CODIS tetranucleotide STRs lack “biological function.” The concurring opinion of Judge Lucero recognizes that Cole rejects the claim of functionality (for the moment). [2] However, a group in France has a theory and some data for a mechanism through which one such STR locus could regulate the expression of an enzyme. [3]

Finally, the brief proposes that the “specter of discrimination and stigma could arise where one or more STRs is found to correlate with another genetic marker whose function is known, so that the presence of the seemingly innocuous STR serves as a ‘flag’ for that genetic predisposition or trait.” [4] As an example of this flag theory, an accompanying footnote states that: “A study in England from 2000 found that one of the markers used in DNA identification is closely related to the gene that codes for insulin, which itself relates to diabetes.” [5]

The accused STR is TH01. It has been used in many studies investigating the association between (a) SNPs, VNTRs, and this STR in a complex of genes and (b) a large number of diseases. Unsurprisingly, associations have been observed. Some of the reported associations were spurious and were not replicated. Other associations probably are real. This does not mean that TH01, by itself, is a useful predictor of any of these diseases in a given population. In fact, one forensic biologist used the 2000 paper cited in Pool’s brief to show that “such associations [between forensic STRs and disease-causing alleles in genes] are so ridiculously weak that serious protest could never form.” [6] His explanation follows:

This is illustrated well by the possible association between certain alleles of an STR named TH01 and diabetes type 1 (Bennett and Todd, 1996; Stead et al., 2000). TH01 alleles are used routinely in DNA typing, and for a minute, the manufacturers of genetic fingerprint kits started to feel the heat over the possible association between an exonic illness and an intronic allele. Fortunately, it takes just a pen and a piece of paper to brush off possible concerns: four out of 1000 Europeans will eventually get diabetes type 1. If you carry one of the ‘risk’ alleles in the intronic TH01 region, your chances of getting diabetes type 1 is 0.13 out of 1000. If I find out that you are carrying the alleged risk allele in my laboratory during DNA typing, I could–but I am not allowed to–calculate your total risk for diabetes as 0.4 � 1.3 = 0.52%. In plain language: in the worst case scenario, one allele of your possible genetic fingerprint might tell me that your general risk of getting diabetes type 1 is increased from 0.4 to 0.52%. All other alleles will not tell me anything about you, or your potential risk for illnesses. Abuse of such information is impossible because it simply has no practical predictive value.

I do not want to “brush off possible concerns,” and I understand the pressures and temptations of advocacy. Still, I wonder whether the Sacramento Federal Defender consulted the scientific literature on TH01 before citing an old study. Or whether he knew that the claims in the law review essay cited in the brief were the subject of an extensive rejoinder in the same journal. [7] If he did, he choose not to share this fact with the court. To my mind, that is not good advocacy.


1. Brief at 12 (quoting from a plurality opinion in Kincade).
2. 621 F.3d at 1230.
3. See Rolando Meloni, Post-genomic Era and Gene Discovery for Psychiatric Diseases: There Is a New Art of the Trade? The Example of the HUMTH01 Microsatellite in the Tyrosine Hydroxylase Gene, 26 Molecular Neurobiology 389 (2001).
4. Brief at 12
5. Id. at 12 n.8.
6. Mark Benecke, Coding orNon-coding?, That Is the Question, 3 European Molecular Biology Organization Reports 498 (2002).
7. David H. Kaye, Please, Let’s Bury the Junk: The CODIS Loci and the Revelation of Private Information, 102 Nw. U. L. Rev. Colloquy 70 (2007).

Replicating Samples to Invade Privacy?

It is tough for lawyers to get science right. I say this not to denigrate lawyers–I am one myself–but to stress the importance of taking the time and effort to communicate the scientific facts clearly so that the value judgments are persuasive. An article attacking the constitutionality of an Arkansas law on DNA sampling from arrestees illustrates this point. In “Step Out of the Car: License, Registration, and DNA Please,” Associate Professor Brian Gallini of the University of Arkansas School of Law, gives an account of DNA profiling that makes it appear that the process of forensic DNA profiling reveals “the totality of a person’s genetic makeup” to arrive at an identification profile. At least, that is how the following exposition of DNA profiling for identification could be read:

[E]ven the layperson knows that taking a DNA sample requires an intrusion into the body, which thereafter reveals the totality of a person’s genetic makeup. … Although courts have characterized DNA swabs as only “minimally intrusive,” they do so without recognizing … the intrusion upon the arrestee’s interest in keeping the information revealed by a DNA sample private. From a buccal swab, the state obtains an analyzable sample of an arrestee’s DNA. That, in turn, allows the state to perform a polymerase chain reaction procedure (PCR), which involves replicating the DNA sample. This replication then allows the tester to look at “short tandem repeats” (STR). At this stage, the STRs reveal specific areas of DNA known as “loci.” In total, the tester is looking to isolate thirteen different loci in order to identify an individual’s exact genetic makeup. Once complete, the sample potentially “provides the instructions for all human characteristics, from eye color to height to blood type.”

What is wrong with this picture. Let me count the ways:

  1. PCR does not replicate the DNA sample. Human cells can replicate the full nuclear genome, but PCR can only replicate short stretches of DNA from targeted locations–the loci.
  2. Replication itself does not allow the tester to look at STRs. Visualization or ascertainment comes later.
  3. STRs do not “reveal specific areas of DNA known as ‘loci.'” An STR is a certain type of DNA sequence that occurs at, well, an STR locus. PCR primers used in forensic identification amplify only the sequences at these loci. The rest of the genomes remains terra incognito.
  4. The tester is not seeking “to identify an individual’s exact genetic makeup.” Rather, the laboratory is seeking to ascertain a small number of variations that are not in genes (or not in the exons of genes).
  5. The physical sample was complete before it was typed. “Once complete,” the tiny profile cannot possibly “provide[] the instructions for all human characteristics, from eye color to height to blood type.” The STR typing never gives any instructions for phenotypes.

Do these corrections mean that samples could not be used to gain information about human phenotypes such as eye color? Of course not. Eye color is a phenotype that can be deduced (in some instances) from genotyping. But such genotyping is not STR profiling.

And how much would it invade your privacy if a laboratory technician were to figure out your eye color in this roundabout way–instead of looking you in the eye? But that’s another story, and I have argued elsewhere against indefinite sample retention.


Brian Gallini, Step Out of the Car: License, Registration, and DNA Please, 62 Ark. L. Rev. 475 (2009)

Adopted Family Members Subjected to Genetic Surveillance

OK, the title is misleading, but here’s the poop. Orchid-Cellmark won’t accept samples of feces for forensic DNA analysis, but BioPet Vet Lab, a Knoxville, Tenn., company will check into “PooPrints.” About two dozen apartment complexes around the country have signed up to have DNA from canine residents entered into this “worldwide database” to catch renters who fail to clean up after their pets. [1]

It is not the first database to contain profiles from innocent and guilty dogs alike. The picturesque Italian isle of Capri planned a database to help keep it narrow walkways clean. [2] A city near Tel Aviv, named Petah Tikva, took a more positive approach, testing special trash cans in a poop-filled neighborhood and giving the owners a small reward for database hits. [3] Port Phillip, Australia, relied on a voluntary DNA repository in 1998–along with “other evidence such as eyewitness accounts, photographs and video surveillance.” [4]

In a more serious vein, a thoughtful review of issues in forensic DNA identification in which dogs are a source of evidence can be found in the latest issue of the Croatian Madical Journal. [5]


1. Katie Zezima, Tracing Unscooped Dog Waste Back to the Culprit, with Science, New York Times, July 2, 2011, at A10

2. Capri to Set Up ‘CSI-style’ DNA Database to Catch Owners Who Refuse to Clean up Dog’s Mess, Daily Mail Reporter, Mail Online, April 11, 2011

3. Rebecca Skloot, Dog-poop DNA Bank, N.Y. Times Mag., Dec. 12, 2008

4. Australians Scoop Up Dog DNA, Ariz. Republic, Sept. 26, 1998, at A27.

5. Gunther Scharnhorst & Sree Kanthaswarny, An Assessment of Scientific and Technical Aspects of Canine Forensics DNA, Croatian Medical Journal, 2011, 52: 280-92