In United States v. Kriesel, No. 11–30197, 2013 WL 3242293 (9th Cir. June 28, 2013), Judge Stephen Reinhardt characterized the court’s rejection of a convicted felon’s motion for the return of a DNA sample as the greatest judicially condoned infringement “on the privacy rights of so many Americans” in the history of this country. I suggested that to the extent that the opinion identified legitimate privacy interests, it overstated the actual infringement. As I explained, the abuses that worried Judge Reinhardt are either remote or prohibited by statute.
The last point makes the Kriesel dissent all but impossible to square with the reasoning of the Supreme Court in Maryland v. King. The King majority relied on statutory prohibitions on the kinds of abuses enumerated by Judge Reinhardt in maintaining that the individual privacy interests in preventing the state from acquiring DNA samples were too weak to justify invalidating the state’s pretrial DNA-sampling law.
Judge Reinhardt’s response seems to be that even if actual, widespread abuse is unlikely, “[i]t is the government's possession and control of Kriesel's most intimate genetic information that invades his right to privacy. Thus, Kriesel's concerns are real and legitimate, not speculation or mere conjecture.” But granting that some information on individual genomes is private, how can the interest in this privacy be “real and legitimate” if the prospect that the government will access and misuse the intimate information is (according to the King Court) unreal and illegitimate?
Before turning to the topic of the government’s reasons for wanting to retain samples indefinitely, a few other misleading parts of the dissenting opinion should be corrected. A trivial observation is that the opinion tries to wrap itself in apparently neutral or deep scholarship when it relies on views in the book Genetic Justice: DNA Data Bases, Criminal Investigations, and Civil Liberties. To create this impression about this book (which I have discussed here and here), the opinion elevates the authors—a professor of urban and environmental planning and policy, and an FDA employee formerly with the ACLU—to the ranks of “prominent bioethicists.”
More significantly, the opinion seems to suggest that the FBI permanently houses DNA samples from “persons arrested or detained ... for the most minor of infractions committed on federal land, such as: cleaning or washing any personal property, fish, animal, or bathing at a faucet not provided for that purpose; water skiing in an area where prohibited by order; allowing a pet dog off its leash; distributing handbills without permission; and parking illegally.” According to Judge Reinhardt, “none of these people may seek the return of their DNA sample.”
But the government does not have “indefinite access to stored blood samples” (or buccal samples) if there is no conviction. In that event, the statute requires expungement of “the DNA analysis” from the “index” (if the Attorney General receives notice from the courts of this outcome). I assume that the actual samples are outside this provision, but (1) my understanding might be amiss, since one part of the statute (§ 14132(a)(1)(C)) speaks of “samples ... in the National DNA Index System” and the statute’s definition of “DNA analysis” is opaque, and (2) I understand that FBI policy is to destroy samples when expunging records. In any event, my reading of the majority opinion reveals little to suggest that the Kreisel majority countenances indefinite retention in this situation.
Finally, the dissent complains that “perhaps worse, the government retains blood samples given voluntarily to help solve crimes ... .” In Judge Reinhardt’s opinion, an individual who voluntarily submits DNA to police “surrenders his most fundamental privacy interest in not having his basic genetic information fall permanently into the hands of a government that is not always sensitive to the importance of the constitutional right to privacy.”
I am not going to pretend that the U.S. government is always sensitive about privacy (or anything else), but there are two glaring defects in this complaint. First, if the Fourth Amendment justification for permanent retention is consent, then the individual must consent to permanent retention. Just saying, "yes, you may use my sample" in connection with a particular investigation (such as the mass screening in Truro, Massachusetts, cited in the dissent) should not establish such consent.
Second, even if an individual wanted to surrender his constitutional rights, the government could not store the sample. The statute provides “that DNA samples that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index System.” 42 U.S.C. § 14132(a)(1)(C) (emphasis added). Omitting this express limitation is especially puzzling given that the opinion cites § 14132(a) as the authority for its claim that the opposite is true.
Having lingered over the blemishes and flaws in the dissent, I need to turn to the more penetrating facets of the opinion. Stay tuned.