Dear Judges: A Letter from the Electronic Frontier Foundation to the Ninth Circuit

On the eve of the en banc oral argument in Haskell v. Harris, The Electronic Frontier Foundation (EFF) filed a letter asking "the Court to consider the ENCODE project findings in determining the outcome of this case." It seems hard to oppose the idea that the court should consider relevant scientific research, but without input from the scientific community, will the judges do better than they have in the past as "amateur scientists" (to use the skeptical phrase of Chief Justice Rehnquist in Daubert v. Merrell Dow Pharmaceuticals, Inc.)?

Deciphering the ENCODE papers' descriptions of the data is no easy task, and EFF's lawyers do not seem to be up to it. Their letter asserts that the project "has determined that more than 80% of DNA once thought to be no more than 'junk' has at least one biochemical function, controlling how our cells, tissue and organs behave." This is not a fair characterization of the findings. Which geneticist ever claimed that all noncoding DNA plays no role in how cells behave? The issue always has been how much junk, how much func -- and what "functions"?

What does EFF mean by "controlling"? Making organs function? Stimulating tissue growth? Turning normal cells into cancerous ones? Making us tall or short, fat or skinny, gay or straight? None of those things are mentioned in the Nature cover story cited in the letter. Instead, the EFF relies on New York Times reporter Gina Kolata's misleading news article for EFF's claim that "The ENCODE project has determined that 'junk' DNA plays a critical role in determining a person’s susceptibility to disease and physical traits like height."

My earlier postings described the limited meaning of the phrase "biochemical function" in the cited paper. I'd love to see a citation to a page of an ENCODE paper that asserts that fully 80% of the noncoding DNA is determining "susceptibility to disease and physical traits like height." And if I were a judge, I would demand an explanation of why "physical traits like height" are, in the words of the EFF letter, "sensitive and private."

After the judges consider the ENCODE papers (by having their law clerks read them?), will they be better informed about the actual privacy implications of the CODIS loci than they were before this excursion into this realm of the bioinformatics? I would not bet on it, but maybe I am growing cynical.