Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled the Combined DNA Index System (CODIS), a database containing DNA profiles of over eleven million citizens. Without judicial authorization, the government searches these profiles one hundred thousand times every day, seeking to link database subjects to crimes they are not suspected of committing.
Courts and scholars addressing DNA databasing have focused their attention on the constitutionality of the government’s seizure of the biological samples used to generate DNA profiles. Most assume that if a sample’s extraction is constitutional, then subsequent searches of the profile must be constitutional as well. This Note examines the Fourth Amendment problems that arise when the government searches CODIS profiles created after the profiles’ subjects were convicted of a statutorily designated crime. It argues that each attempt to match two DNA profiles constitutes a Fourth Amendment search, and suggests an adaptation of the majority rule governing computer-search procedures to remedy the constitutional deficiency of current CODIS search procedures.
I. BACKGROUND: DNA, CODIS, AND THE FOURTH AMENDMENT
A. DNA and CODIS
DNA profiling exploits polymorphisms—variations within DNA that make each individual’s genetic material unique—to create a record of the subject’s genome. DNA can reveal intensely personal details about an individual, including the presence or future development of over four thousand heritable diseases. To avoid impinging upon genetic privacy, law enforcement personnel compose DNA profiles from thirteen loci thought to be “noncoding,” or unable to predict disease states or predispositions. The information contained within a genetic profile, however, can still establish kinship ties and predict the subject’s race, sex, and even surname. Each DNA search compares one DNA profile to another and assesses the similarities between the two. Matches between the profiles’ thirteen genetic markers indicate increasingly close kinship ties between subjects, with a complete match indicating common identity.
B. A Brief Overview of Basic Fourth Amendment Principles
The Fourth Amendment protects against unreasonable searches and seizures. A Fourth Amendment search occurs when the government violates a person’s actual, reasonable expectation of privacy. A search is typically “reasonable” when, prior to its execution, a court issues a warrant based upon the state’s proof of probable cause to believe that the individual to be searched is or has been engaged in a criminal activity, evidence of which is likely to be found at the location listed in the warrant. Warrants based upon such specific, individualized suspicion protect against wide-ranging exploratory searches. The warrant and probable-cause requirements admit numerous exceptions, however, finely granulating when warrantless searches are reasonable in some fact patterns, and at other times leaving outcomes dependent upon an amorphous balancing test,
II. COMPARING COMPUTER SEARCHES TO CODIS SEARCHES
Many similarities exist between DNA evidence stored in government databases and computer evidence stored in government copies of hard drives lawfully seized by police. Yet the law currently treats them differently. Although a suspect in a specific and unresolved crime maintains a privacy interest in the contents of a government-owned copy of her personal computer, lawful state seizure of a convict’s biological sample terminates her Fourth Amendment rights with regard to the genetic profile generated from that sample.
A. Differences in Current Treatment of Computer and DNA Searches
1. Computer Searches
During a warranted search, police generally may seize computers they believe to contain evidence specified in their warrant. After creating a read-only copy of a hard drive, the government searches that copy for the evidence enumerated in its search warrant. In so searching, police are permitted to open every file on their copy of the computer, regardless of the file’s apparent irrelevance to their investigation. As the Ninth Circuit noted in United States v. Comprehensive Drug Testing, 621 F.3d 1162 (2010) (per curiam), this is because computer “data might be erased,” “hidden,” or even “booby trap[ped].”
Importantly, courts restrict computer search targets to the files specified in the search warrant. Though evidence of unsuspected crimes could well be found on the government’s copy of a suspect’s hard drive, most courts nonetheless require an additional showing of probable cause prior to subsequent and collateral searches. For example, the Ninth Circuit has eliminated the plain-view exception to the warrant requirement in the computer search context. This and similar procedures provide additional protection for digital information, prioritizing privacy over prosecuting discovered, but previously unsuspected, crimes.
2. DNA Searches
Law enforcement seizes DNA samples when a person meets certain statutory requirements—for example, by being convicted of a felony—even absent suspicion that the person is involved in any unresolved crime, and regardless of the fact that her conviction obviates any use for her DNA in connection with the crime with which she was charged. The government first extracts a biological sample from the subject, usually in the form of blood or saliva; then it constructs a genetic profile from the sample. No federal statute governs the sample’s disposition after the profile is created, and states—with the sole exception of Wisconsin—retain tissue samples indefinitely. Following lawful seizure, police may examine a sample’s genetics, keep it in their database forever, and match it against any and all forensic DNA profiles, all without judicial authorization.
B. Similarities Between Computer and DNA Evidence
DNA and computer evidence share several essential characteristics. For instance, both have an enormous storage capacity relative to their physical size. This matters because of another similarity: both computers and DNA store information in a highly integrated manner, intermingling data in such a way that searches require investigators to delve into subjects’ irrelevant personal information. Additionally, following seizure and an initial search, both computers and DNA can continue to communicate new information—including information unrelated to the initial investigation—to law enforcement agents.
C. Unreasonableness of the Current CODIS Search Paradigm
A key distinction between courts’ treatment of computer and DNA searches is their use of different conceptual frameworks. A majority of courts understand a computer hard drive to be akin to “a container that stores thousands of individual [sub]containers in the form of discrete files,” each one of which is entitled to constitutional protection. By contrast, courts conceptually freeze DNA in its physical form, casting it and its associated profile as either 1) a unitary item of tangible property, such as a gun, that after seizure only is examined, not searched; or 2) analogous to public records, like fingerprints. Courts should view DNA profiles as more informational than physical, and in terms of the relationships and presences they disclose, rather than the physical samples from which they are derived. Every CODIS search is a Fourth Amendment search that should require a showing of individualized suspicion to protect subjects’ expectations of privacy.
1. Contrasted with Physical Evidence
Unlike an ordinary item of property, DNA contains inherently personal information. The strict confidentiality attending the results of private genetic testing illuminates this intuitive understanding of privacy expectations in genetic information. Moreover, each attempt to match two genetic profiles reveals novel private information in at least two ways. First, although one’s genetic profile may be forever established in the initial profiling, each CODIS search reveals the biological relationship between the persons whom the profiles identify. Second, each CODIS search may divulge CODIS subjects’ presence in noncriminal but embarrassing places. From DNA left behind in the form of skin, saliva, hair, or blood, the government can deduce a subject’s presence in a place where a crime was committed, at a time other than during the crime’s commission.
2. Contrasted with Public Records
Some maintain that because police reference existing fingerprint records without implicating the Fourth Amendment, they also may search CODIS free of constitutional restraint. This argument proffers the “true-identity” exception to Fourth Amendment protections: society does not recognize an expectation of privacy in records made for public purposes. I agree that because the initial suspicionless seizures and profiling perform this “true-identity” function, they should not be the focus of Fourth Amendment analysis.
Yet, unlike fingerprints, which are capable only of identifying their subjects, DNA can identify subjects and provide deeply personal information about subjects’ biological relationships, behavioral predispositions, and disease states, forever. This personal information is subject to the risk of governmental abuse in ways information obtainable from fingerprints is not. This concern is heightened given the political vulnerability of the groups subject to DNA-collection statutes.
3. Subjective Expectations of Privacy that Society Recognizes as Reasonable
CODIS subjects’ persistent expectations of privacy in their genetic relationships and physical movements are objectively reasonable. In Hudson v. Palmer, 468 U.S. 517 (1984) and Griffin v. Wisconsin, 483 U.S. 868 (1987), the Supreme Court acknowledged that society does not recognize convicts’ expectations of privacy to the same degree as other citizens’. Yet both cases held that the reasonableness of convicts’ privacy expectations is reduced only to the extent necessary for the imposition of prescribed punishments. Once a person has paid her debt to society for a crime, the justice system is forbidden to “assum[e]” that she is “more likely than the ordinary citizen to violate the law.”
Repeated suspicionless CODIS searches violate reasonable privacy expectations. Importantly, though the Fourth Amendment “does not protect information per se,” it “protects individuals against oppressive methods for acquiring that information.” People with “nothing to hide” remain alarmed by comparisons of their genetic material with someone else’s. CODIS searches are conducted en masse, and each search exposes to scrutiny subjects’ private movements and biological relations, without any suspicion that the CODIS subject is connected to the crime under investigation. Subjects therefore cannot predict in what context their genetic code, and thereby their movements and relationships, will come under the government microscope. The unpredictability of the searches can rob subjects of their generalized sense of privacy and compel them in all situations to plan their actions in accordance with the public’s imposed scrutiny and judgment.
The large volume and personal nature of the information in DNA gives rise to privacy expectations that are broader and more durable than the expectations surrounding other types of physical evidence. CODIS searches are most realistically seen not as one-off searches for the perpetrator of a single crime, but as a continuous stream of searches in which investigators hound CODIS subjects for every crime for which they have one scrap of evidence—a DNA sample—to compare.
III. MODIFYING COMPUTER-SEARCH PROCEDURES FOR APPLICATION TO CODIS SEARCHES
Computer and DNA-database searches threaten the same type of governmental abuse, i.e. exploratory searches into personal information, divorced from law enforcement’s original suspicions. CODIS searches trample upon reasonable privacy expectations by tracking subjects’ biological relationships and physical whereabouts forever, apart from any suspicion that the subject engaged in the criminal activities in connection to which her profile is searched. These searches are like general-warrant computer searches turned on their head: instead of searching a single computer for evidence of any and every crime, DNA-matching searches any and every CODIS subject for evidence of one particular crime (times one hundred thousand, every day).
Courts’ treatment of computer searches offers an attractive solution to DNA database searches’ problematic intermingling of relevant and irrelevant personal information. As with post-seizure computer searches, courts should require the government to obtain a search warrant before searching a DNA profile in CODIS. Search warrants would issue upon a showing of probable cause to believe that the specific DNA profile the government wishes to compare its sample against will produce evidence of the crime under investigation. This would allow the government to continue to use DNA evidence effectively, as proof that DNA found at a crime scene matches an actual suspect’s genetic profile. It would also narrow the search returns to information likely to be relevant to the investigation, thereby minimizing needless privacy invasion and justifying what invasion does occur.
Courts have allowed the reasonableness and minimal invasiveness of DNA seizures to shield from constitutional scrutiny CODIS searches’ intrusions upon privacy expectations. But the Fourth Amendment discussion of DNA-collection statutes should begin at the point of comparison—not at the point of extraction—because CODIS searches are the point at which the government invades truly weighty privacy expectations in the absence of individualized suspicion. Further, because current CODIS search procedures so closely resemble unreasonable, general-warrant computer searches, courts should apply computer search requirements to CODIS searches to remedy CODIS’s current constitutional shortcomings.
Copyright © 2013 Duke Law Journal
Catherine W. Kimel is a student at Duke University School of Law.
This Legal Workshop Editorial is based on the following article: Catherine W. Kimel, DNA Profiles, Computer Searches, and the Fourth Amendment, 62 DUKE L.J. 933 (2013).
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