Thursday, July 18, 2013

Ninth Circuit Upholds Indefinite Retention of DNA Samples: The Dissent’s Perception of the Loss of Privacy in Kriesel III

Reading the dissent in the latest round of United States v. Kriesel, one would think that the Fourth Amendment is no more.  “No other case,” writes Judge Stephen Reinhardt, “reflects a greater surrender on the part of the courts of the citizens' right of privacy simply because it is told ‘Trust Your Government.’” “Never before have we condoned so great an infringement on the privacy rights of so many Americans.”

This misconceives both the government’s arguments and the impact of sample retention. Certainly, the government asserts that it can be trusted to abide by statutory limitations, but courts routinely indulge the presumption that the government will abide by the law—and they maintain that they can provide remedies when the government breaks the law. All that the majority opinion condones is the retention of cells for the sole purpose of using them to correct errors in DNA database records and to monitor the accuracy of the process of DNA profiling. These interests may be relatively unimportant, or they may be attainable in other ways—as the dissent also argues—but that does not increase the level of any actual damage to privacy.

So what makes Kreisel III the Dred Scott of privacy law? (Maybe Buck v. Bell would be the better metaphor, since the dissent quotes Justice Holmes’ infamous defense of a compulsory sterilization law, that “[t]hree generations of idiots is enough.”) Over and over, the dissenting opinion in Kriesel complains of “immense damage” and “devastating implications” of sample retention on “privacy interests [that] are nothing short of overwhelming,” but precisely what evil is the government going to brew with the biological material in the “government-controlled refrigerators”?

The opinion refers to “millions of individuals' blood samples that contain highly private genetic information that could be made public as a result of a governmental failure to maintain proper security.” Does this mean that the FBI will ship the refrigerators to WikiLeaks? That it will leak millions of samples with names on them to greedy insurance companies who want to use them (in violation of federal and, often, state law) to deny coverage to bad risks or to adjust their premiums?

The opinion suggests that in addition to facing the prospect of having millions of samples disclosed to third parties, the individuals with samples in storage run a real risk of having the government inspect the samples for a “crime gene” to use for “preventive detention” or “social control.” It cites a report in the New Scientist about a “Gangsta gene” -- so called because a 2009 study in Comprehensive Psychiatry stated that one form of the gene increased the risk of teenage gang membership by a factor of two. This “warrior gene,” as it also has been dubbed, has been linked with increased risks of violent and aggressive behavior. It encodes monoamine oxidase A, an enzyme that degrades amine neurotransmitters, such as dopamine, noradrenalin and serotonin. More precisely, an allele of the MAOA gene, known as MAOA-L, is associated with a low level of expression of the enzyme (when certain environmental conditions, such as child sexual or physical abuse have been present).

But MAOA-L is a common variant of the gene, making it all but useless as a predictor of gang membership or violence. The Kriesel dissent simply ignores the section of the New Scientist story prominently entitled “caution needed.” Likewise, the opinion gives credence to claims that a gene found in men heightens “the potential for cheating, marital discord, and divorce.”

Although using these genes for “social control” in the near future seems most unlikely, the dissent tries to conveys the impression that it is not far-fetched to imagine that the government will use MAOA-L as a violence test. Judge Reinhardt cites Buck v. Bell and “the eugenics and criminal anthropology movements” as “a not so distant memory,” and he points to the fact that “[t]he FBI ... has already announced its proposed expansion of the current CODIS system.”

But the expansion to additional STR loci will not permit the FBI to screen samples for men prone to gang membership or violence (let alone marital discord). The additional loci will produce a more individualizing profile that will have more power for matches involving degraded and mixed crime-scene samples and for outer-directed database trawls for first-degree relatives (usually called “familial searching”). Turning the samples over to what the opinion calls “behavior geneticists” for identifying future crimes or criminals—even if this trick were to become possible—is not the kind of “identification” that federal law allows. (See David H. Kaye, Behavioral Genetics Research and Criminal DNA Databanks, 69 Law & Contemp. Probs. 259 (2006), reprinted in part in as Behavioral Genetics Research and Criminal DNA Databases: Laws and Policies, in The Impact of Behavioral Science in Criminal Law 355 (Nita Faranhy ed. 2009).)

To be sure, the dissent has a point when it observes that many people fear that the government will abuse the information that lies coiled and unseen in the blood samples. Many members of the military, for example, are uncomfortable with the government’s holding their (unanalyzed) DNA in storage just in case it might be needed to identify their remains. To the extent that these fears are unfounded, however, it is hard to maintain that Kriesel III is a reincarnation of Buck v. Bell and the end of genetic privacy as we know it.

At the same time, this cautionary note does not mean that indefinite sample retention is constitutional or equitable. Judge Reinhardt is more convincing when he maintains that the majority’s rationales are “flimsy” than when he bemoans the “immense damage to the privacy interests in genetic data.” I shall turn to that side of the ledger later.

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