The faculty Senate weighed in on the University of Akron’s new DNA-profiling policy described in the October 31 posting, “Foolishness in Akron Raises a Serious Question about GINA.” Its resolution of November 5th characterizes the DNA sampling requirement as “of doubtful legality,” overbroad, and counterproductive. Not much to argue with here (although an adequate legal analysis of the policy’s legality under GINA is not trivial).
One of the Senate’s arguments, however, seems hyperbolic. The resolution states that the Board of Trustees’ new regulation “poses a serious threat to the personal privacy of University employees, not least because of the likelihood that DNA records submitted to the Federal Bureau of Investigation will remain in its database.” But this outcome is likely only if the FBI has the statutory authority to include in CODIS DNA identification profiles of not only those individuals who have been arrested or convicted of certain crimes, but of everyone applying for a job with the university.
As originally enacted, the DNA Identification of 1994 authorized the FBI to “establish an index of–(1) DNA identification records of persons convicted of crimes; (2) analyses of DNA samples recovered from crime scenes; and (3) analyses of DNA samples recovered from unidentified human remains.” 42 U.S.C. � 14132(a). In 1999, the Act was amended to include “(4) analyses of DNA samples voluntarily contributed from relatives of missing persons.” Plainly, these provisions do not authorize the inclusion of job applicants in the Convicted Offender DNA Index System.
In 2004, � 14132(a)(1) was broadened to encompass “DNA identification records of–(A) persons convicted of crimes; (B) persons who have been charged in an indictment or information with a crime; and (C) other persons whose DNA samples are collected under applicable legal authorities, provided that DNA profiles from arrestees who have not been charged in an indictment or information with a crime, and DNA samples that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index System.” Finally, in 2006, the categories became “(A) persons convicted of crimes; (B) persons who have been charged in an indictment or information with a crime; and (C) other persons whose DNA samples are collected under applicable legal authorities, provided that DNA samples that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index System.”
This progression reflects a desire to share the fruits of state laws that require mere arrestees to provide DNA samples. Federal law currently permits the FBI to include in the set of records for CODIS searches the profiles of individuals arrested for violations of various state and federal criminal statutes. The interesting legal question is whether the recent expansion of � 14132(a)(1)(C) goes beyond arrestees. If a state such as Ohio were to change its DNA database statute to permit the profiles of applicants for government jobs to be added to its state database, would the FBI be allowed to include this group in its CODIS searches for other states? If the hypothetical Ohio law were an “applicable legal authority,” then this result would seem to follow from the text of the amended Act. Yet, I doubt that the broadening of the 1994 DNA Identification Act was meant to go beyond the incorporation of arrestee profiles in CODIS searches. Perhaps the legislative history of the 2004 and 2006 amendments would shed some light on this question. Comments are welcome.
Declan McCullagh, University Backs Away From New-Hire DNA Testing, CBS News Blogs: Taking Liberties, Nov. 6, 2009, http://www.cbsnews.com/blogs/2009/11/06/taking_liberties/entry5545118.shtml, last accessed Nov. 9, 2009