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.