Deja Vu at the New York Times (and in a Forthcoming Article on Biometric Identification Databases)

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 the tradition of inexplicable certitude. 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).

References

1. Editorial, DNA and the Constitution, N.Y. Times, Feb. 25, 2013, at A16.
2. Editorial, California and the Fourth Amendment, Sept. 19, 2012, at A28.
3. David H. Kaye, On the "Clear" Outcome Under "Established" Law, Forensic Science, Statistics, and the Law, Sept. 19, 2011.
4. 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).