The four dissenting Justices in Maryland v. King insisted that DNA databases and fingerprint databases are as different as night and day. As NYU Law Professor Erin Murphy put it:
Most powerfully, Justice Scalia explained (partially through the use of a chart) why fingerprinting differed dramatically from DNA typing. He observed that known fingerprints are not “systematically compared” with latent prints from unsolved crime scenes (in contrast to DNA), and even if so, courts have never approved such action. He also observed that while fingerprinting may not even be a “search,” analysis of genetic code certainly is.
(Murphy 2013, p. 166, note omitted). Relying solely on Justice Scalia’s “powerful” assurances, she adds that
Police have never routinely collected or used photographs or prints for random crime-solving purposes; both were always mainly for identification of persons already suspected of a crime (i.e., individualized suspicion).114 We know this intuitively: how common are newspaper headlines about thirty-year-old cases solved through “cold hit” fingerprint or mug shot matches, or exonerations based on a hit to a fingerprint or photograph newly uploaded to the database?
114. See King, 133 S. Ct. at 1987-88 (Scalia, J., dissenting). Indeed, police could not have used photos or fingerprints for random crime-solving even if they had wanted to, since it was not until twenty or so years ago–when large biometric databases were developed–that it was even possible to conduct a random automated comparison between known files and crime scene samples.
Id. at 177-78. There are several problems with Justice Scalia’s claims as well as this gloss on them. … [read more]
Yesterday, Justice Stevens addressed the American Constitution Society. He took the unusual step of stating how he would have voted on the constitutionality of collecting DNA from arrestees and using it, not necessarily as proof of the individual’s true identity, but as an investigative tool to link the arrestee to unrelated crimes. This is, of course, the use that split the Court in this month’s decision in Maryland v. King.
Below I offer a condensed and annotated version of Justice Stevens’ analysis. Although I do not agree with every aspect of his discussion, I think he got it basically right, and I take issue with the surprising hyperbole that already has appeared in The Atlantic. … cont’d on the FSSL Blog
It is time to sum up and read the tea leaves that are the transcript of the February 26th oral argument in Maryland v. King. Previous postings concerned these topics:
- Whether taking DNA profiles of arrestees is distinguishable from acquiring them from the general population;
- Whether deriving information from database trawls that could inform pretrial release decisions and conditions can constitute a special need for warrantless DNA acquisition now or in the future;
- Whether DNA profiles are distinguishable from fingerprints on the theory that collecting fingerprints is not even a search;
- Whether DNA samples are distinguishable from fingerprints because DNA samples contain more personal information;
- Whether Kyllo‘s analysis of thermal imaging of a home applies to DNA profiling;
- Whether the Court’s precedents show it is unwilling to trust the government;
- How Skinner, Greenwood, and Davis (4th Cir. 2012) affect the claim that a laboratory analysis limited to identifying features is a search in its own right.
At least some of the Justices appeared to be searching for a theory that would distinguish routine DNA collection and analysis before conviction (DNA-BC) for arrestees from the DNA-BC for everyone in the population. But why? � read more �
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 editor of the New York Times (or whoever writes its editorials) continues to think that routine DNA sampling on arrest “clearly contravenes the Fourth Amendment” (1). A similar pronouncement five months ago (2) prompted me to submit a letter pointing out the obvious–that “over vigorous dissents, federal courts of appeals have ruled otherwise–twice in panels of the Ninth Circuit and once (en banc) in the Third Circuit” (3). As I wrote then:
I do not claim that arrestee DNA sampling clearly is constitutional. There are a number of valid concerns about indefinite sample retention and other matters. Neither do I maintain that its benefits (which are not well quantified) plainly outweigh its costs and its impact on legitimate interests in personal privacy and security. But assertions that the balance is “clear” and that the “established” law dictates the result oversimplify a delicate constitutional question.
The latest editorial continues in this tradition. Now we are told that “substantial harm to innocent people … greatly outweighs the benefits.” These substantial harms, the editorial explains, are … well, somehow, that goes unmentioned. Perhaps the oral argument in Maryland v. King, to take place tomorrow, will fill in this gap. Additional discussion of most of the harms that have been mentioned in opposition to DNA databases can be found in a recently updated version of a forthcoming article in the University of Pennsylvania Journal of Constitutional Law (4).
- Editorial, DNA and the Constitution, N.Y. Times, Feb. 25, 2013, at A16.
- Editorial, California and the Fourth Amendment, Sept. 19, 2012, at A28.
- David H. Kaye, On the “Clear” Outcome Under “Established” Law, Forensic Science, Statistics, and the Law, Sept. 19, 2011.
- David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 Univ. Penn. J. Con. L. (in press), available on SSRN (last revised: Feb. 25, 2013).
Crossposted to Forensic Science, Statistics, and the Law.