The Metamorphosis of the Arizona Rapid DNA Bill

Having swum through a Senate committee hearing, Arizona Senate Bill 1475 changed from an ungainly, large frog into a small, misconfigured tadpole. I know, that's backwards, but the legislative process is a world onto itself. Some of the differences between the original bill and the repeatedly amended version now on the legislature's website are in the table below. 1/

Original	As Amended to 2/22/19
A new DPS database for everybody required to submit fingerprints to the state for most purposes	Does not compel anyone to submit DNA samples. It establishes a new DPS for profiles from sexual assault kits.
Medical examiners to submit a DNA profile from all deceased individuals	No provision specific to medical examiners
No provisions on crime-scene or sexual-assault kits	A new DPS "database to retain DNA ID that is collected from a sexual assault kit"
Required "the sample to be processed within four hours using Rapid DNA identification"	Requires "the sample to be processed using a Rapid DNA identification instrument that is approved by the [FBI] and that has the capacity to return results in less than two hours"

Given that police laboratories already analyze rape kits and place the male STR profiles in databases that are compared to databases of reference profiles from known individuals (in Arizona, from certain arrestees and convicted offenders), what is the point of this bill? Why create a new database when Arizona has local and statewide DNA identification databases that include data from rape kits already and that can be used in national as well as state and local searches?

The answers reside in the bill's single-minded insistence on "rapid DNA." ANDE, the company that has come out in support of the bill, advertises its microfluidic system for use with rape kits. But despite the wording in the bill, the FBI has not approved this application of the company's machine (or any others that it defines as "rapid DNA" instruments).

ANDE's machine may be as great as the company claims, even  when used with crime-scene and rape-kit samples. 2/ But until the FBI approves it for those uses, the profiles it generates from these samples cannot be part of the local, state, and federal DNA database system (colloquially called CODIS). If Arizona wants its police to rush into rapid DNA profiling for rape kits, it has to operate on its own, outside of the established framework. That is what Senator Livingston is proposing. 3/

Or is he? If FBI approval means approval for use with sexual-assault kits, the bill will have no effect until the FBI moves forward. But once the FBI approves "Rapid DNA" profiles from crime-scene samples, what purpose does a separate database serve?

From the FBI's Webpage on Rapid DNA
(emphasis in original)
Because known reference samples are taken directly from the individual, they contain sufficient amounts of DNA, and there are no mixed DNA profiles that would require a scientist to interpret them. For purposes of uploading or searching CODIS, Rapid DNA systems are not authorized for use on crime scene samples. All crime scene samples must be processed by an accredited forensic DNA laboratory that follows the FBI Quality Assurance Standards for Forensic DNA Testing Laboratories to be eligible for upload and/or search in CODIS.
...
Cheek swabs are ideal for Rapid DNA machines, as they contain large amounts of fresh DNA from one individual. Forensic samples vary widely, from the age, exposure and nature of the sample to the amount and quality of DNA it may contain. Most critically, forensic samples often contain mixtures of DNA from more than one individual that requires interpretation by a trained scientist. For these reasons, all crime scene samples must be processed by an accredited forensic DNA Laboratory that follows the FBI Quality Assurance Standards for Forensic DNA Testing Laboratories to be uploaded and/or searched in the CODIS system.
There are many challenges that must be overcome before the FBI can consider the use of Rapid DNA systems for crime scene sample analysis. The Bureau continues to assess how these challenges can be addressed to include monitoring enhancements to Rapid DNA technology. Among the major challenges is the requirement to determine the amount of DNA present in a sample (necessary to maximize the resulting quality of the DNA profile, assess for contamination, etc.) and the development of expert systems for crime scene sample analysis. 

Will police or DNA analysts have discretion to choose between the instrumentation singled out in the bill and other techniques? What if the rape-kit sample contains only a few spermatozoa and if other analytical procedures are more sensitive and would consume less of the sample? The latest version of the bill is less ambitious than the original, but no more intelligently designed.

UPDATE 6/20/19: An AP report on friction between ANDE and the Texas Forensic Science Commission 4/ noted that ANDE spokeswoman Annette Mattern "defended the company asking for 'performance parameters' in the proposed DNA database bill that excluded the company's chief rival, Thermo Fischer Scientific, saying it wouldn't have prevented competitors from ultimately meeting the same requirements." Although "Mattern and other ANDE representatives testified in support of the proposal," she said that the company "later asked to kill the legislation"  after "[s]ome senators questioned whether there were other advocates besides the company."

NOTES

1. For a more complete list of differences, see https://www.azleg.gov/legtext/54leg/1R/summary/S.1475TPS_STRIKERMEMO_ASPASSEDCOMMITTEE.DOCX.htm
2. For validation studies of microfluidic systems for rapid DNA analysis, see Jacklyn Buscaino et al., Evaluation of a Rapid DNA Process with the Rapidhit® ID System Using a Specialized Cartridge for Extracted and Quantified Human DNA, 34 Forensic Sci. Int’l: Genetics 116-127 (2018); Rosemary S. Turingan et al., 7 Investigative Genetics 2 (2016), DOI 10.1186/s13323-016-0033-7.
   At least one article (Aamer Alshehhi & Reena Roy, Generating Rapid DNA Profiles from Crime Scene Samples Commonly Encountered in the United Arab Emirates, 6 J. Forensic Research 296 (2015), doi:10.4172/2157-7145.1000296), appeared in a journal published by OMICS, which promises article processing, including peer review, within 21 days. Although reputable academic researchers prepared the article and presumably paid OMICS to publish it, the claim of serious peer review -- and even the names of the editors -- are questionable. OMICS also published an article prepared by a daily newspaper "mostly plagiarized from Aristotle, with every fourth or fifth word changed" to produce a "meaningless" result.Tim Spears, Owner of Canadian Medical Journals Publishes Fake Research for Cash, Ottawa Citizen, Nov. 22, 2016. The National Institutes of Health ... banned OMICS journals from indexing in PubMed Central [because of] 'serious concerns' about its practices." Esmé E Deprez & Caroline Chen, Medical Journals Have a Fake News Problem, Bloomberg Businessweek, Aug. 29, 2017
3. The Arizona DPS already does some crime-scene processing with rapid DNA devices. Ariz. Dep't Pub. Safety, DNA Scientific Services, https://www.azdps.gov/organization/tsd/scientific-analysis/dna ("The Department of Public Safety was the first state agency to bring Rapid DNA analysis online as a law enforcement program where officers and crime scene technicians are trained in the use of the Rapid instrumentation. These Rapid operators can then run select types of crime scene samples outside of the laboratory in order to develop investigative leads more quickly than possible through normal crime laboratory analysis.").
4. Paul J. Weber, APNewsBreak: Texas Says DNA Technology Jeopardizes Cases, ABC News, June 20, 2019, https://abcnews.go.com/Technology/wireStory/apnewsbreak-texas-rapid-dna-supplier-jeopardizes-cases-63826207.

OTHER NEWS ON ARIZONA SB 1475

• Bree Burkitt, Unrecognizable Version of DNA Bill Advances, Focuses on Rape Kits, Ariz. Republic, Feb. 20, 2019, https://www.azcentral.com/story/news/politics/legislature/2019/02/20/arizona-dna-database-legislation-new-version-senate-bill-advances-rape-kit/2918578002/
• Bree Burkitt, Controversial DNA Database Bill Scaled Back to Patient Care Professionals Only, Ariz. Republic, Feb. 19, 2019, https://www.azcentral.com/story/news/politics/legislature/2019/02/19/controversial-dna-database-bill-scaled-back/2920134002/
• Jenni Fink, Arizona Bill Proposes Forced DNA Samples After Nurse Is Charged With Impregnating Incapacitated Woman, Newsweek, Feb. 19, 2019 at 4:14 PM, https://www.newsweek.com/arizona-bill-dna-samples-nurse-charged-impregnating-woman-1336293
• Who Favors the Arizona Rapid DNA Database Expansion Bill?, Forensic Sci., Stat. & L., Feb. 15, 2019
• Arizona Senator Proposes a Massive Expansion of the State DNA Database, Forensic Sci., Stat. & L., Feb. 14, 2019

Who Favors the Arizona Rapid DNA Database Expansion Bill?

Arizona Senate Bill 1475, discussed yesterday, has not been greeted with widespread joy. The West Maricopa Association of Realtors was apoplectic. Its Director of Government Affairs had this to say:

Senator Livingston, you and I would do well to read Thomas Paine’s “Rights of Man”. His premise is as true today as it was 250 years ago: Man is given natural rights as part of his existence. He does not join a society or form a government in order to lose those rights.

She did not explain why the "rights of man" enjoyed by real estate agents keep the state from ascertaining and recording their "DNA IDs" but not their fingerprints.

The vociferous opposition already has produced drastic surgery to the bill. According to YourValley.net,

[An] updated draft of the bill focuses on jobs that involve caring for people with intellectual disabilities. It is restricted to those who ... provide[] direct care in an intermediate care facility for individuals with intellectual disabilities .... Messages to Sen. Livingston were not returned, however, according to chamber sources, he introduced the bill in response to Phoenix’s Hacienda Healthcare incident in which a licensed nurse practitioner impregnated a comatose patient.

But the sheer scope of the bill is not the only unusual part of it. Why, for example, does it demand samples to be processed solely by a particular type of instrument -- a self contained microfluidic capillary electrophoreses system known colloquially as "Rapid DNA"? Where did the bill's operative language and definitions of "DNA ID" and "genetic profile" come from? They are not standard terms in the forensic DNA field. But they appear on the website of a particular manufacturer of a Rapid DNA instrument. That manufacturer is ANDE, "the global leader in Rapid DNA," and the only request to speak in favor of the bill comes from "Mike Williams, ANDE(2/15/2019)."

Arizona Senator Proposes a Massive Expansion of the State DNA Database

This month (4 Feb. 2019), Arizona State Senator David Livingston (R) introduced SB 1475 to dramatically expand the number of DNA samples and identification profiles held by the state for searching against crime-scene DNA profiles (and other things). It is scheduled for a hearing before the Committee on Transportation and Public Safety.-- which Senator Livingston chairs -- on February 20.

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Whose DNA?

The new DNA samples would come from everyone

☆ "required by law to submit fingerprints for purposes of identification as part of an application for licensure, certification or a permit or renewal of a license, certificate or permit"
☆ "whose employment or position requires fingerprinting for purposes of identification."
☆ "who is employed by or volunteering with a law enforcement agency."
☆ "who, for any other reason, is required by law to submit fingerprints for purposes of identification."
☆ who is dead ("A deceased person, whose DNA shall be collected by the medical examiner" and "A deceased person's DNA ID must be submitted to the department within twenty four hours after collection.")
☆ "ordered by a court ... to submit DNA ID for purposes of proving or disproving familial relationships" or
☆ "who voluntarily requests [inclusion] in the database."

I have not looked up who must submit fingerprints to the state, but I would expect this group to include teachers, child care center employees, law enforcement personnel, anyone jailed for any suspected offense, and the Arizona legislators themselves! Putting the legislator's DNA samples into the system would be a good idea, but it is not clear that the state can make its rank-and-file employees submit to DNA profiling. The federal Genetic Information Nondiscrimination Act of 2009 (GINA) generally prohibits employers from demanding "genetic information," and one district court interpreted this to include identification profiles.

What Does It Cost?

The bill allows the collecting agency to "collect a fee of up to $250 from a person who submits biological samples." It does not say how the medical examiner will collect the money from the dead. Last year, the National Institute of Justice's FTCoE (Forensic Technology Center of Excellence) reported that "[t]here are hefty costs and agencies will say ‘That sounds great but I don’t know if we can afford it,’ ” ... it costs approximately $100 to $150 to process each sample in addition to the purchase price of the instrument itself."

How to Profile to DNA

The bill requires "collecting agencies to "promptly process the sample ... within four hours using rapid DNA identification ... ."

What DNA Features?

Collecting agencies "may not test the sample for or submit any [DNA] information other than DNA ID. [S]equence or single nucleotide polymorphism are explicitly excluded from submission." The bill explains that "'DNA ID' means a human identification measurement that is based on the size of a set of short tandem repeats in the genome of an individual that is obtained from a biological sample by short tandem repeat amplification and electrophoretic sizing and that is generated from a noncoding portion of deoxyribonucleic acid that does not contain any information, other than gender, about a person's physical characteristics or medical conditions."

"The database may not be used for the storage of a deoxyribonucleic acid sequence or a single nucleotide polymorphism or to create a genetic profile." But a SNP is not what you might think. It "means a variation in deoxyribonucleic acid sequence in which a single nucleotide at a specific location in the genome varies from person to person and can be used to assess a given person's physical characteristics or medical conditions." Likewise, "[g]genetic profile' means a description of a person's genetic code that is developed through [DNA] sequencing or single nucleotide polymorphism technologies and that contains information about that person's physical characteristics or medical conditions."

What Happens to Samples?

In an unusual twist, the state must destroy "the biological sample ... immediately after testing is complete." (It can demand a second sample if the first profile is incomplete. After that, I guess it is out of luck.)

What Uses?

Permitted uses are open-ended:

"for purposes of criminal law enforcement, identification for employment, licensing, death registration, missing persons identification, identification of persons using aliases or other multiple identities or other uses specifically authorized by the department [of public safety]."

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What will they think of next? If the state wants a population-wide database, it ought to authorize it through clear legislation.

For more on Ariz. SB 1475, see

• Who Favors the Arizona Rapid DNA Database Expansion Bill?, Forensic Sci., Stat. & L., Feb. 16, 2019
• The Metamorphosis of the Arizona Rapid DNA Bill, Forensic Sci., Stat. & L., Feb. 22, 2019

Reprising the Idea of a Population-wide DNA Identification Database

Talk of creating a US population-wide DNA database to identify the sources of DNA found at crime scenes began in the last century. In 1997, former Attorney General Janet Reno appointed a National Commission on the Future of DNA Evidence. 1/ At the first meeting of the Commission's legal issues working group, Commissioner Philip Reilly urged the group to study the issue. 2/ The working group submitted a report that included a discussion of "more inclusive databases" than those limited to convicted offenders. This report noted that under the law as it stood, medical research and other databases and tissue repositories could be subject to law enforcement inspection. Although it recognized that "this country would hesitate before demanding its citizens to surrender their DNA to a massive, centralized databank," the report concluded that "there is a strong case" for a national, population-wide database with rigorous privacy protections. 3/ The section of the report on "comprehensive databanking" provided the following argument (footnotes are omitted) in favor of a population-wide database:

     ...  First, the deterrent effect of DNA databanking is greatest for a population-wide database. Convicted-offender databases can deter only those offenders who have been caught and convicted for previous crimes. By increasing the probability of detection of first-time and repeat offenders alike, a comprehensive database can do much more to reduce the rate of certain crimes. And, making apprehension more certain permits the same level of deterrence with less Draconian (and costly) periods of imprisonment.
     Second, a comprehensive database avoids many problems or issues associated with offender or arrestee databanking. It obviates the need to draw some line between those offenses for which databanking is permitted and those for which it is not. It avoids any risk that police will make pretextual arrests merely to secure DNA samples. It makes it unnecessary to infer physical traits or racial or ethnic identity from trace evidence samples. Perhaps most important, it avoids stigmatizing any person or group. A comprehensive database imposes the same obligation on all racial and ethnic groups. There is a widespread perception that minorities are overrepresented in the criminal justice system in part because they are wrongfully arrested and convicted to a greater degree than whites. A universal database would help prevent wrongful convictions and arrests of minorities. When an eyewitness mistakenly concludes that the criminal was a minority member, a wrongful arrest (and conviction) can ensue. A comprehensive database would increase the probability that a minority citizen mistakenly arrested for a crime would be promptly exonerated. A readily accessible population-wide database thus would aid in preventing such arrests and subsequent miscarriages of justice.
     Third, a single national database would be more efficient than a system of over 50 separate databases of offenders or suspected offenders. From this perspective, the current system of multiple, overlapping databases represents unnecessary duplication and a waste of scarce resources. For all these reasons, a single, secure, national DNA identification database is attractive.

The report continued with a discussion of feasibility, constitutionality, and impact on personal privacy. The working group's chairman and reporter went on to publish an expanded analysis in a law review article 5/ and a book chapter. 6/ A condensed version appeared in an ABA journal 7/ and in an op-ed in USA Today. 8/ Again, the authors 9/ argued that such a database had several attractive features and speculated on the economy and constitutionality of adding identifying STR profiles to the panel of disease markers used in neonatal screening and sending only the STR data to a national law enforcement database (with no samples ending up in the hands of law enforcement).

In the early 2000s, other lawyers, scientists and politicians -- in Australia 10/ and England 11/ as well as America 12/ -- unequivocally advocated population-wide databases. This commentary appeared in leading newspapers and journals. A major theme (besides the obvious desire to maximize the crime-solving potential of DNA evidence) was that the existing, decentralized regime lacks adequate privacy protections and discriminates against those individuals with whom police have the most contact.

The issue of expanding DNA databases to include arrestee profiles, which was a more immediate topic at National Commission meetings, re-entered the national spotlight after the Supreme Court granted a writ of certiorari in Maryland v. King, 569 U.S. 435 (2013), to review the constitutionality of DNA sampling and profiling before conviction. Arrestee sampling prompted additional mention of a population-wide DNA database. 13/ In the same period, prominent successes with "familial searching" of convicted offender databases 14/ also led to comparisons to a more universal database. 15/

Most recently, the success of kinship searches in an open-to-the-public genealogy database has inspired yet another reprise of the idea. Writing in Science last month, four scholars at Vanderbilt University revived the argument that "if correctly implemented, a universal database would likely be more productive and less discriminatory than our current system, without compromising as much privacy." 16/ Given that Science affords very little space to its Policy Forum articles, it is not surprising that the legal analysis and references to previous writing in Is It Time for a Universal Forensic Database? are minimal, but some of the claims about the law cry out for more extended analysis.

To begin with, Is It Time? contends that "a subpoena is all that law enforcement needs to force those [direct-to-consumer] companies [such as 23andMe and Ancestry.com] to determine whether they have a match with crime scene data." But a subpoena duces tecum normally applies only to existing documents. The recreational genetics companies do not have a database of the STR profiles that law enforcement laboratories now produce. The power to subpoena information may not include the authority to force the companies to produce a new database of STR profiles for the benefit of law enforcement. In other words, a subpoena demanding all names of likely relatives of "John Doe, with the following STRs ..." could be met with the response that "we do not have any STR profiles in our records."

Presumably, Is It Time? contemplates crime laboratories' generating their own genome-wide SNP-array data on crime-scene samples. Then a subpoena could ask for the names of all customers with large haploblocks in common with a crime-scene sample. After the Supreme Court's decision on extended cellphone tracking in Carpenter v. United States, however, it is fair to ask whether a subpoena as opposed to a search warrant based on probable cause must be honored. After all, if the subpoena leads to an individual whose genome-wide-array data are in the commercial database, the police will have acquired information on that individual that is far more threatening to personal privacy than is the more strictly identifying information that comes from an STR-profile match.

Second, Is It Time? assumes that a subpoena is all it takes to acquire medical records from a health care provider, so that a population-wide database would enhance overall privacy by reducing the incentive police have for accessing medical records through subpoenas. Before Carpenter, this was a plausible assumption. 17/ After Carpenter, it is easier to argue that these records are the kind of information that cannot be compelled without a judicial warrant based on probable cause.

Third, Is It Time? assumes the constitutionality of a population-wide database with profiles retained for a great many years (perhaps starting from birth) for no other reason than the value of the database for criminal or missing-person investigations. Whether this premise is true is far from obvious. 18/ There is an argument for the constitutionality of such a system, 19/ but it has not been tested in court. It is not to be found in Maryland v. King, 569 U.S. 435 (2013), or other DNA database cases. 20/

Is It Time? goes beyond the previous proposals in some ways. For one, the DNA information that it proposes for the "universal database" is more extensive than the profiles of existing law-enforcement databases. The article suggests that

Profiles would consist of a few dozen short-tandem repeats, with perhaps a modest expansion of the 20 CODIS loci currently used to improve the identification of degraded samples or the addition of a limited subset of “forensic” single-nucleotide polymorphisms to enhance the identification of more distant relatives in the rare instances in which familial searches were still needed. 21/

The "limited subset" of SNPs for detecting distant relatives is somewhat mysterious. Haploblock matching for inferring distant relationships uses hundreds of thousands of SNPs. Maybe there is a way to get to distant relatives with a combination of a few dozen STRs and a small number of SNPs, but the article cited in Is It Time? does not directly address this possibility. Rather, it describes an investigation of the feasibility of using an STR profile to find a close relative in a direct-to-consumer database of genome-wide-SNP-array of data (by exploiting linkage disequilibrium between the STRs and nearby SNPs). 22/

Is It Time? concludes with this thought:

At the very least, putting the idea of a universal forensic database on the table would spur a long overdue debate about the deficiencies of the current system and, more broadly, our societal commitment to privacy, fairness, and equal protection under the law.

Surely this "long overdue debate" has been going on for decades. The issues of privacy, fairness, and equality that arise from law enforcement DNA databanks and databases have always been "on the table," as shown by law review articles, books, radio and television programs, newspaper articles, blogs, government reports, and conferences. This literature, like the latest incarnation in Science, repeatedly has alluded to a population-wide database for a counterpoint to the compromises of the present system. 23/ From this perspective, elaborating on the details of a "universal database" could be helpful even though the idea has no political legs.

NOTES

1. NIJ, National Commission on the Future of DNA Evidence, https://www.nij.gov/topics/forensics/evidence/dna/commission/pages/welcome.aspx (modified Apr. 3, 2013). The Commission's first met in March 1998, and it is possible that not all the commissioners were in place in 1997.
2. David H. Kaye, Legal Issues Working Group Meeting Summary, Sept. 14, 1998.
3. David H.Kaye & Edward J. Imwinkelried, Forensic DNA Typing, Selected Legal Issues: A Report to the Working Group on Legal Issues, National Commission on the Future of DNA Evidence 73 (Nov. 30, 2001). The Working Group submitted the report to the Commission without explicitly endorsing it. See David H. Kaye, The Double Helix and the Law of Evidence 186 (2010).
4. Id. at 71.
5. D.H. Kaye & Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wisc. L. Rev. 414 (2003).
6. D.H. Kaye & Michael E. Smith, DNA Databases: The Coverage Question and the Case a Population-wide Database, in DNA and the Criminal Justice System: The Technology of Justice 247 (D. Lazer ed., Cambridge, Mass.: MIT Press 2004).
7. D.H. Kaye et al., Is a DNA Identification Database in Your Future?, Crim. Just., Fall 2001, pp. 4-11.
8. Michael E. Smith et al., DNA Data Would Combat Crime, Racism, USA Today, July 26, 2001, at 15A.
9. Another working group member -- Professor Edward Imwinkelried -- joined in writing the previous two publications.
10. Ben Ruse, MP Wants DNA Birth Records, West Australian, May 4, 2001, at 6, available at 2001 WL 20291651; Robert Williamson & Rony Duncan, Commentary, DNA Testing for All: There Are Two Fair Possibilities for Forensic DNA Testing: Everyone or No One, 418 Nature 585 (2002).
11. Robin McKie, Inventor Warns over Abuse of DNA Data: Privacy in Peril from Genetic Fingerprint Technology, Guardian, Aug. 7, 2004. See also Judge Calls for UK DNA Database, BBC News, Nov. 24, 2004.
12. Akhil Reed Amar, Foreword: the Document and the Doctrine, 114 Harv. L. Rev. 26, 125-26 (2000); Akhil Reed Amar, A Safe Intrusion, Am. Law., June 11, 2001 ("We could 'fingerprint' everyone's DNA and still protect privacy if doctrinal obstructionists would get out of the way"); Akhil Reed Amar, A Search for Justice in Our Genes, N.Y. Times, May 7, 2002; Alan Dershowitz, Identification Please, Boston Globe, Aug. 11, 2002 at 14.
13. E.g., David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminol. 535, 580-82 (2014); Richard Lempert, Maryland v. King: An Unfortunate Supreme Court Decision on the Collection of DNA Samples, Brookings Institute Up Front, June 6, 2013; Eric Posner, The Mother of DNA Databases, Slate, Mar. 5, 2013.
14. E.g., Greg Miller, Familial DNA Testing Scores A Win in Serial Killer Case, 329 Science 262 (2010).
15. Compare Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291, 329 n.152 (2010) (“virtually impossible that a universal database could withstand constitutional scrutiny”), with David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 51 Am. Crim. L. Rev. 109, 128-29 (2013).
16. J. W. Hazel, E. W. Clayton, B. A. Malin & C. Slobogin, Is it Time for a Universal Genetic Forensic Database?, 362 Science 898 (2018), DOI: 10.1126/science.aav5475
17. See authorities cited supra notes 5-6.
18. See supra note 15.
19. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095 (2013).
20. King (unconvincingly) relied on interests limited to the pretrial period to uphold compulsory sampling on arrest but not to keep the profile in a database without a conviction. See David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014).
21. Hazel et al., supra note 16, at 899.
22. Joyce Kim et al., Statistical Detection of Relatives Typed with Disjoint Forensic and Biomedical Loci, 175 Cell 848 (2018).
23. The references collected here are not exhaustive. See, e.g., David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013) (using a "universal database" as "a thought-experiment" for evaluating less inclusive database systems).

Forensic Genomic Genealogy and Comparative Justice

Thirty years ago, the introduction of law-enforcement DNA databases for locating the sources of DNA samples recovered from crime-scenes and victims was greeted with unbridled enthusiasm from some quarters and deep distrust from others.  So too, reactions to the spate of recent arrests in cold cases made possible by forays into DNA databases created for genealogy research have ranged from visions of a golden era for police investigations to glimpses into a dark and dystopian future.

Particularly in the law-enforcement database context, one concern has been the disproportionate impact of confining DNA databases to profiles of individuals who have been arrested for or convicted of crimes. For a variety of reasons, racial minorities tend to be overrepresented in law-enforcement databases (as compared to their percentage of the general population). 1/ But it seems most unlikely that nonwhites are similarly concentrated in the private genealogy databases that have resulted from the growth of recreational genetics. It may be, as Peter Neufeld observed when interviewed about the Golden State Killer arrest, that "[t]here is a whole generation that says, ‘I don’t really care about privacy,’" 2/ but it seems odd to speak of minorities as being "disproportionately affected [by] the unintended consequences of this genetic data" in the newly exploited databases. 3/

If anything, to quote Professor Erin Murphy, "the racial composition of recreational DNA sites -- which heavily skew white -- may end up complementing and balancing that of government databases, which disproportionately contain profiles from persons of color." 4/ That is not much of an argument for widespread forensic genealogy (and Professor Murphy did not rely on it for that purpose). Given how labor intensive forensic genomic genealogy is for genealogists and police, it seems unlikely that the technique for developing investigative leads to distant relatives will be used often enough to produce or correct massive disparities in who is subject to arrest or conviction.

Still, if police routinely were able to obtain complete results on crime-scene DNA with the DNA chips used in genome-wide association studies and recreational genetics, they could easily check whether any of the DNA records on those databases are immediate matches (or indicative of close relatives who might be tracked down without too much effort). The database used in the Golden State Killer case, GEDmatch, has data from a million or so curious individuals in it. That is considerably less than the 16 or 17 million profiles in the FBI's national DNA database (NDIS), but it is far from insignificant.

NOTES

1. David H. Kaye & Michael Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wisc. L. Rev. 41.
2. Gina Kolata & Heather Murphy, The Golden State Killer Is Tracked Through a Thicket of DNA, and Experts Shudder, N.Y. Times, Apr. 27, 2018 (quoting Peter Neufeld).
3. Id.
4. Erin Murphy, Law and Policy Oversight of Familial Searches in Recreational Genealogy Databases, Forensic Sci. Int’l (2018) (in press).

Trawling Genealogy Databases and the Fourth Amendment: Part I

Law-enforcement use of a DNA database created for genealogy enthusiasts helped discover the man believed to be the Golden State Killer. It also provoked an immediate outpouring of media reports of concerns about "genetic privacy." Now, essays from groups of bioethicists and lawyers have appeared in both the Annals of Internal Medicine [1] and Science [2]. Neither article gives a convincing and complete analysis of the legal issues—hardly surprising given the word limits for such policy forum essays—but both are useful as starting points for discussion.

I. The Misplaced “Abandonment” Theory

The Annals article, Is It Ethical to Use Genealogy Data to Solve Crimes? [1], assures us that the law provides “clarity.” The authors find this clarity in “the abandonment doctrine.” The following paragraph comprises their entire legal analysis:

The legal questions raised by genealogy searches are measurably simpler than the ethical concerns. In terms of the U.S. Constitution, a genealogy search triggered by DNA collected from a crime scene probably would not count as a “search” under the Fourth Amendment (4). Even assuming it would, the applicable legal theory—the “abandonment doctrine”—holds that a person has no “reasonable expectation of privacy” in abandoned materials. Courts have allowed law enforcement to test DNA “abandoned” in a range of settings (such as hair clippings and discarded cigarette butts). At genealogy Web sites, users voluntarily upload (that is, abandon) familial data into commercial databases. Whether they are aware that their data are subject to police collection is, legally, irrelevant (5). Notwithstanding the clarity of the law, it is questionable whether it is good social policy to consider the uploading of genealogic data the same as abandoning DNA in a public space.

These remarks confuse two very different questions. The first is whether a data-gathering method is a search within the meaning of the Fourth Amendment. The Amendment protects against “unreasonable searches and seizures” of “persons, houses, papers, and effects,” in large part by requiring police to acquire judicial warrants based on probable cause before undertaking a search or seizure. (Reliance on a properly issued warrant makes the search reasonable.)

But not all information collection is a search or seizure that triggers the Fourth Amendment demand for reasonableness. For example, a police officer who merely watches a shady character—or anyone else—walk down the street has not searched or seized anyone. If the officer snaps a photo of the person and compares it to photos of wanted criminals, there is still no search or seizure, for there has been no interference with the individual’s body, movements, or property. And if no search has occurred, there is no need to ask whether the officer’s decision to study the individual was reasonable in light of the facts known to the officer. The notion that what a person knowingly exposes to the general public cannot be the subject of a “search” is sometimes called the “public exposure doctrine.” It pertains to the threshold question of whether a search has occurred.

The “abandonment doctrine” also applies to this threshold question. It applies to property that a person has discarded or left behind. If the police see an individual throw away a syringe, they may collect it and then analyze it for the presence of heroin without obtaining a warrant—because they have not performed a search that affects any legitimate interest. By intentionally relinquishing the syringe, the individual has given up any property interest. He or she might not want it to become known that the syringe has traces of heroin in it, but if heroin possession is a criminal act, then the individual can hardly claim that the interest in keeping this fact secret is legitimate and hence protected by the Fourth Amendment. So the abandonment doctrine is another route to a conclusion that the police have conducted no search or seizure within the meaning of the Amendment.

The lower courts have almost always applied the abandonment doctrine to DNA molecules shed or deposited in both legal and illegal activities. But it is odd to maintain, as Is It Ethical? does, that abandonment makes a search reasonable because “a person has no ‘reasonable expectation of privacy’ in abandoned materials.” That mistakes the question of whether a search is justified for the question of whether the police conduct is a search. The “reasonable expectation” standard, introduced in Katz v. United States, 389 U.S. 347 (1967), is merely a way to show that police have engaged in a search; it is not a way to show that a search is reasonable.

This distinction may sound finicky. Functionally, what is the difference between (1) defining everything as a search, but then asking whether the investigation is reasonable because there is no reasonable expectation of privacy in the items searched, and (2) asking whether there is a search because there is no reasonable expectation of privacy in the first place? The major difference is that the first inquiry focuses solely on the information-gathering practice's invasion of individual interests: Does the practice implicate an interest that the Amendment protects? The second question is broader and different. It asks how gravely the practice infringes that interest and how much the practice serves government interests that would be frustrated by the need to secure a warrant based on probable cause.

The use of the term "abandonment" to reject the claim that there has been a search does not automatically justify the search. The opinions allowing the police to profile shed DNA and compare the identifying profile with a suspect's DNA (or with all the profiles in a law enforcement DNA database), all without a warrant, do not demonstrate that police can also trawl a database of DNA sequences to see who might be related to whom. Further analysis is required to determine the constitutionality of familial, or other-directed searching by the state in both law-enforcement [3] and private (i.e., non-governmental) databases such as GEDmatch and the more restrictive commercial ones.

With respect to the private databases, the state's argument lies not so much in abandonment as in public exposure. The very reason the individual puts DNA data on the database is to enable curious members of the public to inspect it. As such, the Fourth Amendment issue is whether police (without a warrant) can do what anyone else can—namely, trawl the database for a partial match indicative of a genetic relationship to the suspect whose DNA is associated with a crime. In many contexts—overflying private property to get a look at what is there, for example—the Supreme Court has reasoned that what is open to the public generally is open to the police as well. Indeed, the Court has even held that entrusting or conveying information to private parties defeats the claim of a reasonable expectation of privacy and hence the claim of a search that requires probable cause and a warrant. Exposure to a small slice of the public—even a banker or a telephone company—is enough let the police in without a showing of probable cause. (Disclosure of information to one’s lawyer may be protected by the attorney-client privilege but not the Fourth Amendment.)

In the past several years, however, some Justices have evinced discomfort with this “third-party doctrine.” Just yesterday, the Court held in Carpenter v. United States, No. 16–402, 2018 WL 3073916 (U.S. June 22, 2018), that certain data generated by a cell-phone service provider—the third party—is not outside the protective umbrella of the Fourth Amendment just because it has been given to or generated by a third party. The data in the case amounted to extended tracking of the past whereabouts of a person’s cellphone’s via the electronic tracks, so to speak, left at cell towers. That information, the majority reasoned, was so sensitive as to make its possession by the cellular phone service providers insufficient to defeat the claim of a reasonable expectation of privacy. A warrant was required.

The Science article correctly frames the pivotal Fourth Amendment issue as the scope of the third-party doctrine, but it leaves much unsaid. I will turn to the implications of this evolving doctrine for trawls of genealogy databases in a later installment.

REFERENCES

1. Benjamin E. Berkman, Wynter K. Miller & Christine Grady, Is It Ethical to Use Genealogy Data to Solve Crimes?, Annals Internal Med., May 29, 2018, DOI: 10.7326/M18-1348.
2. Natalie Ram, Christi J. Guerrini & Amy L. McGuire, Genealogy Databases and the Future of Criminal Investigation, 360 Science 1078-1079 (2018) DOI: 10.1126/science.aau1083
3. David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 51 Am. Crim. L. Rev. 109 (2013), https://ssrn.com/abstract=2043091

[Modified 29 Sept. 2018]

The Reappearing Rapid DNA Act

With bipartisan sponsorship, the Rapid DNA Act of 2017 (H.R.510 and S. 139) is sailing through Congress. The Senate bill made it to the legislative calendar on May 11, 2017, without amendment and without a written report from the Judiciary Committee.  The Committee Chairman, Senator Grassley, wrote this about the bill:

Turning to legislation, the first bill is S.139, the Rapid DNA Act of 2017. It is sponsored by Senator Hatch. The Committee reported this bill and the Senate passed it in the last Congress. The bill would establish standards for a new category of DNA samples that can be taken more quickly and then uploaded to our national DNA index. 1/

This characterization is misleading. The bill itself contains no standards for producing profiles to upload to the national database. It orders the FBI to “issue standards.” Specifically, the part of the bill entitled “standards” adds to the DNA Identification Act of 1994, 42 U.S.C. § 14131(a), a new Section 5, which reads as follows:

(A) ... the Director of the Federal Bureau of Investigation shall issue standards and procedures for the use of Rapid DNA instruments and resulting DNA analyses.
(B) In this Act, the term ‘Rapid DNA instruments’ means instrumentation that carries out a fully automated process to derive a DNA analysis from a DNA sample. 2/

But the FBI does not need new authorization to devise standards for “Rapid DNA instruments.” The “resulting DNA analyses” are not a new category of “samples,” and some such profiles already may be in the National DNA Index System (NDIS). In fact, the FBI issued standards for “rapid” profiles years ago. One need only peek at the FBI's forthright answers to “Frequently Asked Questions on Rapid DNA Analysis.” There, the FBI explained that

Based upon recommendations from the Scientific Working Group on DNA Analysis Methods (SWGDAM), the FBI Director approved and issued The Addendum to the Quality Assurance Standards for DNA Databasing Laboratories performing Rapid DNA Analysis and Modified Rapid DNA Analysis Using a Rapid DNA Instrument (or “Rapid QAS Addendum”). The Addendum contains the quality assurance standards specific to the use of a Rapid DNA instrument by an accredited laboratory; it took effect December 1, 2014.

The FBI added that “[a]n accredited laboratory participating in NDIS may use CODIS to upload authorized known reference DNA profiles developed with a Rapid DNA instrument performing Modified Rapid DNA Analysis to NDIS if [certain] requirements are satisfied” and that “DNA records generated by an NDIS-approved Rapid DNA system performing Rapid DNA analysis in an NDIS participating laboratory are eligible for NDIS.” 3/

But if the FBI does not need the bill to develop standards or to incorporate rapid-DNA results into NDIS, what is the real purpose of the bill? The answer is simple. The bill clears the way for these results to come, not from accredited laboratories, 4/ but from police stations, jails, or prisons. The House Judiciary Committee was explicit in its brief report on the bill:

Currently, booking stations have to send their DNA samples off to state labs and wait weeks for the results. This has created a backlog that impacts all criminal investigations using forensics, not just forensics used for identification purposes. H.R. 510 would modify the current law regarding DNA testing and access to CODIS. The short turnaround time resulting from increased use of Rapid DNA technology would help to quickly eliminate potential suspects, capture those who have committed a previous crime and left DNA evidence, as well as free up current DNA profilers to do advanced forensic DNA analysis, such as crime scene analysis and rape-kits. 5/

The FBI was more succinct when it referred to “the goal of using Rapid DNA systems in the booking environment” and reported that “legislation will be needed in order for DNA records that are generated by Rapid DNA systems outside an accredited laboratory to be uploaded to NDIS.” 6/

Is the migration of DNA profiling from the laboratory to the police station — and potentially to the officer on the street — a good idea? The efficiency argument from the House Committee has some force. We do not demand that only accredited laboratories conduct breath alcohol testing of drivers who seem to be intoxicated. Police using properly maintained portable instruments can do the job. 7/

How is DNA different? In one respect, it is less problematic than roadside alcohol testing. Rapid DNA analysis is not for crime-scene samples. (At least, not yet.) It is for samples from arrestees or convicted offenders whose profiles can be uploaded to a database. The police have an incentive to avoid uploading inaccurate profiles. Such profiles will degrade the effectiveness of the database. Any cold hits that they might produce will be shown to be false when a later DNA test from the suspect fails to replicate the incorrect profile. In contrast, incriminating output of a faulty alcohol test usually enables a conviction and will not be shown to be in error.

But there is more to the matter than efficiently generating and uploading profiles. It could be argued that DNA information is more private that a breath alcohol measurement and that having CODIS profiles known to local police is more dangerous than having it known only to laboratory personnel. Considering the limited kind of information that is present in a CODIS profile, however, this argument does not strike me as compelling.

POSTSCRIPT

The Rapid DNA Act of 2017 met no opposition as the Senate and House passed the bills. S. 139 generated unanimous consent (and no discussion) on May 16. 8/ Its counterpart, H.R. 510, passed after receiving praise from two of its sponsors and the observation from Representative Goodlatte (R-VA) that "this is a good bill. It is a bipartisan bill. I thank Members on both sides of the aisle for their contributions to this effort." 9/

NOTES

1. Prepared Statement by Senator Chuck Grassley of Iowa, Chairman, Senate Judiciary Committee Executive Business Meeting, May 11, 2017, https://www.judiciary.senate.gov/imo/media/doc/05-11-17%20Grassley%20Statement.pdf, viewed May 16, 2017.
2. Rapid DNA Act of 2017, S. 139 § 2(a).
3. The difference between “Rapid DNA Analysis” and “Modified Rapid DNA Analysis” is that the former is “a “swab in – profile out” process ... of automated extraction, amplification, separation, detection, and allele calling without human intervention,” whereas the latter uses “human interpretation and technical review” for ascertaining the alleles in a profile. FBI, Frequently Asked Questions on Rapid DNA Analysis, https://www.fbi.gov/services/laboratory/biometric-analysis/codis/rapid-dna-analysis, Nos. 1 &2, viewed May 17, 2017.
4. The DNA Identification Act of 1994, 42 U.S.C. § 14131, which the Rapid DNA Act amends, requires the FBI to create and consider the recommendations of "an advisory board on DNA quality assurance methods." § 14131(a)(1)(A).  The members of the board must come from "nominations proposed by the head of the National Academy of Sciences and professional societies of crime laboratory officials." Id. They "shall develop, and if appropriate, periodically revise, recommended standards for quality assurance, including standards for testing the proficiency of forensic laboratories, and forensic analysts, in conducting analyses of DNA." § 14131(a)(1)(C). As the name indicates, the board is purely advisory. The Act only demands that

   The Director of the Federal Bureau of Investigation, after taking into consideration such recommended standards, shall issue (and revise from time to time) standards for quality assurance, including standards for testing the proficiency of forensic laboratories, and forensic analysts, in conducting analyses of DNA.

   § 14131(a)(2).
   The advisory board was a half-a-loaf response to the recommendation of a National  Academy of Sciences committee for "a National Committee on Forensic DNA Typing (NCFDT) under the auspices of an appropriate government agency, such as NIH or NIST, to provide expert advice primarily on scientific and technical issues concerning forensic DNA typing." NRC Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science 72-73 (1992). Now that NIST has established an Organization of Scientific Area Committees for Forensic Science to develop science-based standards for DNA testing and other forensic science methods, Congress should reconsider the need for the overlapping FBI board.
5. On May 11, 2017, the House Committee on the Judiciary recommended adoption of H.R. 510 without holding hearings. The Judiciary Committee saw no need to consult independent scientists. It was satisfied with the fact that

   the Judiciary Committee’s Subcommittee on Crime, Terrorism, Homeland Security and Investigations held a hearing on a virtually identical bill, H.R. 320, on June 18, 2015, [at which] testimony was received from: Ms. Amy Hess, Executive Assistant Director of Science and Technology, Federal Bureau of Investigation; Ms. Jody Wolf, Assistant Crime Laboratory Administrator, Phoenix Police Department Crime Laboratory, President, American Society of Criminal Laboratory Directors; and Ms. Natasha Alexenko, Founder, Natasha’s Justice Project.

   Report to accompany H.R. 510, May 11, 2017, https://www.congress.gov/115/crpt/hrpt117/CRPT-115hrpt117.pdf
6. FBI Answers, No. 13, https://www.fbi.gov/services/laboratory/biometric-analysis/codis/rapid-dna-analysis, viewed May 17, 2017 (emphasis added).
7. “As of January 1, 2017, there is no Rapid DNA system that is approved for use by an accredited forensic laboratory for performing Rapid DNA Analysis.” Several systems had been approved but they do “not contain the 20 CODIS Core Loci required as of January 1, 2017.” FBI Answers, No. 6, https://www.fbi.gov/services/laboratory/biometric-analysis/codis/rapid-dna-analysis, viewed May 16, 2017. 
8. 163 Cong. Rec. S2954-2955, 115th Cong., 1st Sess., May 16, 2017.
9. Id. at H4205.

Frontline's Expose of DNA Testing: Yes and No

The content of a recent Frontline story on “The Surprisingly Imperfect Science of DNA Testing: How a Proven Tool May Be Anything But” will come as no surprise to anyone familiar with the professional and academic literature on forensic DNA identification. The work is important, though, because the main points of the story need to be widely understood. I highlight them below. At the same time, the story relies on some putative problems that are more perceived than real. 

The story boils down to this (with annotations on the right)
Complex DNA mixtures can be tough to interpret, especially when the amounts of DNA are so small that stochastic effects in amplifying DNA sequences are important. In these situations, analysts using a variety of cues and procedures--and even following the same general procedure--can reach different conclusions. False arrests and convictions can follow.	True. See, e.g., Erin Murphy, The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in Forensic DNA Typing, 58 Emory L.J. 489 (2008).
There can be a big difference between the answer to the question “What is the probability of a match between a specific DNA profile and the profile an individual picked at random?” and “What is the probability of a match between a specific DNA profile and at least one profile in a large database of profiles picked at random?”	Yes, different questions give different answers. The size of the database affects the answer to the second question, but not the first. But which question should be addressed in court? Probably neither. See, e.g., Ian Ayres & Barry Nalebuff, The Rule of Probabilities: A Practical Approach for Applying Bayes’ Rule to the Analysis of DNA Evidence, 67 Stan. L. Rev. 1447 (2015); David J. Balding, The DNA Database Search Controversy, 58 Biometrics 241 (2002); David H. Kaye, Rounding Up the Usual Suspects: A Legal and Logical Analysis of DNA Database Trawls, 87 N. Car. L. Rev. 425 (2009).
Thinking about how traces of DNA ended up where they did—and not just whose DNA ended up there—can be crucial to an investigation and prosecution. If investigators, lawyers, and jurors do not understand this, there can be mistaken arrests, prosecutions, and convictions.	A very important point. See, e.g., Peter Gill, Misleading DNA Evidence (2014); David H. Kaye, David Bernstein & Jennifer Mnookin, The New Wigmore on Evidence: Expert Evidence (2d ed. 2011).
A few things will be surprising
The 2011 Hampikian-Dror “experiment” with a complex DNA mixture was good proof that examiner bias (from knowing what detectives believed) affected two examiner's interpretations.	From the viewpoint of experimental design, a potentially important confounding variable was obviously present. See D.H. Kaye, The Design of “The First Experimental Study Exploring DNA Interpretation”, 52 Science & Justice 256 (2012). As Dror later wrote, the study was  “suggesting that the extraneous context of the criminal case may have influenced the interpretation of the DNA evidence” (emphasis added by Dror in a reply letter). This conclusion is reminiscent of a microscopic hair association reported as “suggesting that the [defendant] may have [left the hair at the crime scene].” How helpful is that?
"It’s not clear how often coincidental matches occur." Indeed, it might not be a rare event at all, considering that "a rogue Arizona state employee had run tests on the state’s database without the FBI’s permission and found" an inexplicably high number of partial matches.	The employee was not a “rogue”; she did not need the FBI’s permission to use a state database this way; the results were presented on behalf of the state laboratory at an International Symposium on Human Identification. They are not especially anomalous, but largely a consequence of trawling for partial matches among all possible pairs of profiles in a database that includes close relatives. See, e.g., David H. Kaye, Trawling DNA Databases for Partial Matches: What Is the FBI Afraid Of?, 19 Cornell J. L. & Public Pol'y 145 (2009).

48 Hours for DNA

Today's New York Times reports that

DNA matching that of two escaped killers was found in a cabin in the remote resort of Mountain View, N.Y., 15 heavily wooded miles west of the state prison in Dannemora, an official briefed on the investigation said on Monday morning.

The forensic evidence indicated that the men had been there within the last 48 hours, according to the official, who was not authorized to discuss the search and spoke on the condition of anonymity.

A pair of prison-issued underwear was also found in the cabin, the official said.

Andy Newman & William K. Rashbaum, DNA of Escaped Convicts Found in Cabin, Official Says, N.Y. Times, June 22, 2015 

It would interesting to know what "forensic evidence indicated that the men had been there within the last 48 hours." DNA itself carries no known signs of how long it has sat on some surface. If the DNA were in saliva on, say, an apple core left from a snack, would the extent of oxidation of the food allow it to be dated within a 48-hour period? Seventeen days have elapsed since the two men escaped.

Maryland v. King and Fourth Amendment Doctrine

In Maryland v. King,^1/ the Supreme Court upheld the practice of routine DNA sampling soon after arrest for certain crimes. The impact of the decision of the doctrinal framework for applying the Fourth Amendment to searches has been the subject of debate. The most extreme view is that is the opinion presages the collapse of the doctrine that criminal investigatory searches are per se unreasonable unless they fall within some well-defined exception to the requirement of a warrant based on probable cause.^2/ Another destabilizing view is that the case establishes “that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes.” ^3/ Other observers were less alarmed.^4/

A case having nothing to do with DNA suggests that King is not the death knell of either the reasonable-suspicion requirement for a search incident to arrest or the warrant requirement. In Riley v. California,^5/ Chief Justice Roberts wrote that

As the text [of the Amendment] makes clear, “the ultimate touchstone of the Fourth Amendment is reasonableness." Our cases have determined that "[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant." Such a warrant ensures that the inferences to support a search are "drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. ^6/

Applying this framework, the Court unanimously held that police generally need a warrant to search a cellphone, The mere fact that it was acquired incident to an arrest is insufficient to justify rummaging though its contents.Thus, if Riley is any indication, Maryland v. King changed neither the basic framework of Fourth Amendment analysis nor the parameters of searches incident to arrest.

Notes

1. 133 S. Ct. 1958 (2013).
2. Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013).
3. Tracey Maclin, Maryland v King: Terry v Ohio Redux, 2013 Supreme Court Review 359, 403.
4. David H. Kaye, Why So Contrived? The Fourth Amendment and DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014); David H. Kaye, Maryland v. King Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. F. 39, 40, 42-43 (2013); Orin Kerr, A Few Thoughts on Maryland v. King, The Volokh Conspiracy, June 3, 2013 (“while King is very important from a practical standpoint, there isn’t a whole lot of academically-interesting stuff happening in the King opinions.”).
5. 134 S. Ct. 2473 (2014).
6. Id. at 248 (citations and internal quotation marks omitted)

Buza Reloaded: California Supreme Court Grants Review

Yesterday the California Supreme Court granted review in People v. Buza, No. A125542 (Cal. Ct. App., 1st Dist., Dec. 3, 2014), and ordered the Court of Appeal opinion "depublished." A depublication order "is not an expression of the court's opinion of the correctness of the result of the decision or of any law stated in the opinion." Cal. Rules of Court, Rule 8.1125(d) (2015). However, "an opinion of a California Court of Appeal ... that is not ... ordered published must not be cited or relied on by a court or a party in any other action" in California. Rule 8.1115(a).

The California Department of Justice issued a information bulletin advising all state law enforcement agencies that

By operation of state law, the Supreme Court’s order granting review removes the Court of Appeal’s opinion as published authority and prevents citation or reliance on that decision in any other action. As a result of the California Supreme Court’s grant of review of this decision, there is now no state precedent that precludes collection of DNA database samples from adult felony arrestees pursuant to Penal Code section 296.

Penal Code sections 296(a)(2) and 296.1(a) therefore are in full effect and mandate the collection of DNA database samples from all adults arrested for a felony or wobbler offense. All authorized arrestee samples that have been or will be received by the California Department of Justice DNA Data Bank program will be analyzed and uploaded to CODIS.

Closely related postings

• Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law, Dec. 7, 2014
• Buza Reloaded: The Fourth Amendment Framework, Dec. 22, 2014
• Buza Reloaded: Fourth Amendment Balancing, Jan. 1, 2015
• Buza Reloaded: California Balancing, Jan. 4, 2015

Buza Reloaded: California Balancing

This is the fourth installment on Buza II, the opinion of the California court of appeal that invalidates the state's DNA-on-arrest law. It discusses the part of the opinion that argues that the balance the U.S. Supreme Court struck in Maryland v. King is either flatly wrong or wrong for California. In giving substantial weight to concerns over "familial searching" and the information content of DNA samples, the opinion assumes that it is appropriate to strike down a law that is constitutionally reasonable as currently implemented because future developments might make it unreasonable as then implemented. This premise is highly contestable.

Formally, the conclusion that California's DNA-BC (Before Conviction) law is unreasonable under the Fourth Amendment as it appears in the California Constitution does not imply that it is unreasonable under the Fourth Amendment as it exists in the U.S. Constitution. California is a sovereign state of the Union, and its courts can read different meanings into the words of its constitution. But many of the reasons the Buza II opinion gives for its conclusion—if correct—also apply to nearly all of the 25 or so DNA-BC laws on the books, and the opinion itself indicates that, in large part, the divergence between Buza II and King emanates from the California judges’ outright disagreement with the Supreme Court's balancing in King.

To begin with, the California judges complain that King “unjustifiably dismissed concerns about the extent of the personal information contained in DNA samples by limiting ... attention to the profile used in DNA databanks, as currently restricted by statutes and scientific capability.” One might expect that this observation immediately would be followed by the undeniable fact that the entirety of a person’s genome contains some medically significant information that would not otherwise be known, such as predispositions to certain diseases. Testing for these alleles (or for markers for them) would pose significant privacy issues (which is why such testing generally is prohibited without the individual’s consent).

But the opinion veers off into a superficial discussion about the CODIS profile itself. The problem, according to Buza II, is that the profile can be used not merely to identify an individual whose DNA is taken when he is arrested, but also sometimes can be used to identify a first-degree relative as a likely source (when the arrestee’s DNA is a close mismatch to the crime-scene sample). This “familial searching,” as the court calls it, is a “factor not relevant to identity,” and therefore “present[s] additional privacy concerns.”

The second part of this statement is true enough. Like a perfect match, a close mismatch is relevant to the identity of the DNA source, but it also reveals that the arrestee could be genetically related to the source of the crime-scene DNA. 1/ Consider the “Grim Sleeper” case of serial rapes and murders in the Los Angeles area, with years of apparent inactivity between some of the attacks. Trawls of the database proved fruitless—until Christopher Franklin was convicted of a felony. His DNA profile did not match the Grim Sleeper’s, but it lined up with it in a manner that would be expected if the two were father and son. This led investigators to Christopher’s father, Lonnie Franklin, Jr. In this way, Lonnie emerged as a suspect only because of his son’s conviction. (His DNA profile was not in the database because his arrests had occurred before California had a database.) Now he stands accused of ten murders.

People v. Franklin reveals an important fact about kinship trawling. In Franklin, it is difficult to discern the slightest “additional privacy concerns.” That Lonnie was Christopher’s father was a publicly known fact, not a private secret. Furthermore, Lonnie can hardly claim to have a legitimate Fourth Amendment interest in keeping secret the fact that it was his DNA that was found on or around murdered women. 

Of course, there could be other cases in which the familial relationship between the database inhabitant and the culprit was not known to one or both of the genetically related individuals. In such situations, the claim to a right to keep the genetic relationship secret is more plausible. But the existence of possible cases of this kind does not demonstrate that the occasional legitimate privacy interests that might be affected by the rare, "other-directed" trawls (that look for people outside of the database) outweigh those of the government.

In particular, for Mark Buza and his relatives to have an additional privacy interest compromised by the arresteee database, at least two conditions would have to be fulfilled. First, California would have to initiate other-directed trawls of its arrestee database. It has never done so, and it cannot do so under the policy its Department of Justice has adopted for such database trawling. This policy confines the other-directed trawling to convicted-offender databases. Second, Mark Buza would have to have publicly unknown first-degree relatives whose DNA profile would be close enough to Mark’s to implicate them in other crimes via a kinship match to Mark’s profile.

On its face, the first condition suggests that the parts of the opinion discussing “familial searching” are inapposite. Why strike down a law because of what could be but is not? Nonetheless, the Buza court’s sensitivity to the possibility of a change in the state’s DNA-BC practice might be seen as prescient rather than premature. From the outset, an argument against DNA databases has been mission creep. Once the database is established, the state will be tempted to use it for additional and more insidious purposes. To guard against this outcome, the argument goes, society should bind itself to the mast in anticipation of an irresistible siren song.

There are situations in which this self-disabling strategy is advisable. Indeed, much of the Bill of Rights constrains the majority from doing what seems expedient or appealing in the heat of the political moment. But it is not so clear that a handful of judges should block the democratic decision to allow DNA-BC to be used in acceptable ways that advance law enforcement on the ground that the system might be administered in unacceptable ways at some future time. If and when a jurisdiction combines other-directed trawling and DNA-BC, courts can consider whether that type of trawling is so serious an invasion of privacy as to render it unconstitutional. Cf. United States v. Knotts, 460 U.S. 276 (1983) ("if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."). Using the mere possibility of a correctable change in the allowed uses of the DNA data to strike down the collection and otherwise acceptable uses of the data seems Draconian.

Moreover, relying on future familial searching as a ground for striking down the system as currently implemented is inconsistent with Buza II’s effort to distinguish the Maryland practice. Presiding Justice Kline emphasized the existence of a Maryland statute banning familial searching. But as Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Judicial Circuit tartly observed in oral argument in Haskell v. Harris (a separate case challenging California DNA-BC law), statutes can be changed too. The logic of Buza II—that databases that are constitutionally reasonable (as currently implemented) but might become unreasonable (as implemented in the future) are constitutionally unreasonable ab initio—would render the Maryland law on DNA-BC unconstitutional.

Despite these problems, Buza II applies the nip-it-in-the-bud reasoning not only to DNA profiles but also to samples. Displaying little knowledge of behavioral genetics, the court invokes “the pedophile gene” and “the violence gene” that, it imagines, might well be discovered some day. It predicts that “surely law enforcement will seek to mine genetic information for that ‘identification purpose.’” 
But there is no good reason to believe that the word “identification” as used in DNA-BC laws would permit predictive genetic testing for these behaviors, and the court makes no attempt to explain why such testing could not be condemned as constitutionally unreasonable if and when the time arises.

My criticism of the court of appeal's reliance on dystopic visions of the future is not based on naive faith in the goodness of police and law enforcement laboratories. Courts need not—and should not—trust law enforcement to exercise perfect self-restraint in investigative methods that easily can be abused. Before approving a DNA database system, they should satisfy themselves that sufficient safeguards against predictable abuses are in place. But if such protections are present, courts should not invalidate a system because the safeguards might be removed or might cease to be effective in the future. In this case, might does not make the decision right.

Note

1. Confusingly, the court presents this fact as if it "disproves the King majority’s assumption that 'the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee.'" Some noncoding DNA does affect visible traits of an arrestee, but the CODIS loci, as far as current science can tell, do not reveal much about any phenotypes. Because all DNA sequences are inherited, however, including those that King (also confusingly) calls "junk," the ones that vary across individuals, can be used in kinship analysis. In fact, the sequences that do give rise to individual traits often are the best for this purpose because they tend to be extremely variable within populations.

References

• David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014)
• David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013)
• David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 51 Am. Crim. L. Rev. 109 (2013)
• Henry T. Greely & David H. Kaye, A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 53 Jurimetrics J. 43 (2013)

Closely related postings

• Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law, Dec. 7, 2014
• Buza Reloaded: The Fourth Amendment Framework, Dec. 22, 2014
• Buza Reloaded: Fourth Amendment Balancing, Jan. 1, 2015
• The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard, July 17, 2014
• The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention, July 16, 2014
• Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest, June 8, 2014
• What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, March 24, 2014
• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014
• Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris, December 6, 2013

Buza Reloaded: Fourth Amendment Balancing

This is the third installment on Buza II, the opinion of the California court of appeal that invalidates the state's DNA-on-arrest law. It comments on the court of appeal's treatment of the definition of a "search" and the court's claim that the reasons the Supreme Court gave in Maryland v. King for upholding post-arraignment DNA collection from Alonzo King are "completely inapplicable" to taking DNA from Mark Buza during booking.

Having described the scope of totality-of-the-circumstances balancing in exceedingly generous terms, Presiding Justice Kline turns to a logically prior Fourth Amendment question—should the DNA collection from Buza be considered a search under the Fourth Amendment? This definitional issue is a condition precedent to reasonableness balancing in that the state has no burden of showing reasonableness if it does not conduct a “search or seizure” within the meaning of the amendment.

Again, the court reaches the correct conclusion—of course there was a search—but the exposition raises some questions. Presiding Justice Kline wrote that

Nonconsensual extractions of substances that may be used for DNA profiling are “searches” entitled to the protection of the Fourth Amendment. (King, supra, 133 S.Ct. at p. 1969 [buccal swab]; Schmerber v. California (1966) 384 U.S. 757, 767-771 (Schmerber) [blood]; People v. Robinson, supra, 47 Cal.4th at p. 1119 [blood]; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 616-617 [breathalyzer and urine sample]; Cupp v. Murphy (1973) 412 U.S. 291, 295 [finger nail scrapings].) The physical intrusion involved in the buccal swab procedure used in the present case has been viewed as minimal. (King, at p. 1969.) The collection of the DNA sample, however, is only the first part of the search authorized by the DNA Act; the second occurs when the DNA sample is analyzed and a profile created for use in state and federal DNA databases. The latter search is the true focus of our analysis. (Brackets in original).

Most of this paragraph is gratuitous. Why not stop with the irrefragable proposition that King held that buccal swabbing is a search? Every Justice of the U.S. Supreme Court accepted this premise, and not one maintained that there was one search followed by another search. According to the King majority, "using a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a search" simply because "[v]irtually any intrusion into the human body will work an invasion of cherished personal security that is subject to constitutional scrutiny.” 133 S.Ct. at 1969 (internal quotations, citations, and alteration omitted).  “The ... intrusion [although] negligible ... is still a search as the law defines that term.” Id.

In contrast, whether trawling a database for a DNA match to the DNA profile derived from the sample acquired by the physical intrusion is a “latter search” is an open question. Federal appellate courts have reached different conclusions about it, and the King Court did not discuss it (despite the insistence of King’s counsel at oral argument that DNA analysis and trawling is a search in itself). To be sure, the nature of DNA profiling and trawling is “of central relevance,” King, 133 S.Ct. at 1969—but only on the distinct question of whether the search is reasonable. Id.

Before turning to that question, the Buza II court expressed some sympathy for Justice Scalia’s “piercing” dissent. This position is at odds with Presiding Justice Kline’s description of the Fourth Amendment as always accommodating balancing, since the entire theory of Justice Scalia’s dissent was that the reasonableness of DNA sampling on arrest is not to be determined by weighing individual and state interests, but by a putative categorical rule against certain suspicionless searches

Be that as it may, the Buza II court maintained that King’s “reasons for upholding the Maryland law [are] completely inapplicable to California’s.” That conclusion seems precipitous. There is ample room to debate the value of arrestee sampling and the significance of the differences of the Maryland and California statutes. Indeed, I have written that Justice Kennedy’s reasoning in King is “contrived,” but only because a candid approach to totality balancing (or, preferably in my view, toward creating a new categorical “biometric exception” to the general rule against warrantless searches) has to incorporate the power of DNA to solve cases and deter crimes sooner rather than later (or not at all). 1/

But surely King’s detention-related reasons for DNA testing cannot be dismissed as “completely inapplicable.” For example, Buza II cited the fact that whereas the California law covers all felony arrests, the Maryland law encompasses only arrests for “murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes.” King, 133 S.Ct. at 1967. The supposition that DNA from individuals arrested for nonviolent felonies is less likely to provide a link to an unsolved crime hardly means that the DNA is devoid of investigative value. Car theft is not a violent crime or a burglary, but at least some car thieves leave behind traces of DNA while committing more serious crimes

Furthermore, even the more sensible reasoning that arrestee DNA is, on average, less valuable to the state for some felonies than for others does not distinguish the demands the states made on the defendants in King and Buza. Mark Buza, after all, was caught committing arson—surely a serious crime. Why is the Buza court addressing the law as applied to a hypothetical person at another time? Under established Fourth Amendment doctrine, Buza was justifiably arrested for arson. As such, he lacks standing to assert the rights of individuals arrested for much less serious offenses. If it was constitutional to have compelled King to give a DNA sample—which is what the Supreme Court held—why is not equally constitutional to have ordered Buza to give a DNA sample? The answer cannot be that the Supreme Court in King was confronted a serious felony arrest. The court of appeal in Buza likewise was confronted with a serious felony arrest.

Indeed, the Buza opinion itself backs away from the extreme position that King’s reasoning is “completely inapplicable.” The court announces that it is not actually deciding the fundamental question of “whether these differences require a different resolution of the issue from that of the King majority.” It ends its Fourth Amendment analysis with more of a whimper than a bang, dismissing the entire issue: “Our conclusion that the DNA Act is invalid under article I, section 13, of the California Constitution renders it academic whether the Act is also invalid under the Fourth Amendment.” The court is convinced that the differences “significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment,” but it seems less certain that this alteration truly produces a different result.

To reach a different result, the Buza II court performs its own balancing under an unusually demanding balancing test. The next installment comments on this California balancing.

Note

1. David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, Journal of Criminal Law & Criminology, Vol. 104, No. 3, pp. 535-596, May 2014, available at http://ssrn.com/abstract=2376467

Closely related postings

• Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law, Dec. 7, 2014
• Buza Reloaded: The Fourth Amendment Framework, Dec. 22, 2014
• Buza Reloaded: Fourth Amendment Balancing, Jan. 1, 2015
• Buza Reloaded: California Balancing, Jan. 4, 2015
• The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard, July 17, 2014
• The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention, July 16, 2014
• Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest, June 8, 2014
• What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, March 24, 2014
• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014
• Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris, December 6, 2013
• The Oral Argument in Maryland v. King — Part IV, March 6, 2013