EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

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EFF.orgNew Brief Urges Jus­tices to Pro­tect Cit­i­zens from War­rant­less Analy­sis of Genet­ic Material

San Fran­cis­co — Peo­ple have a Fourth Amend­ment right to pri­va­cy when it comes to their genet­ic mate­r­i­al, the Elec­tron­ic Fron­tier Foun­da­tion (EFF) argues in an ami­cus brief filed this week with the Supreme Court of the Unit­ed States.

EFF is ask­ing the Supreme Court to hear argu­ments in Raynor v. State of Mary­land, a case that exam­ines whether police should be allowed to col­lect and ana­lyze “inad­ver­tent­ly shed” DNA with­out a war­rant or con­sent, such as swab­bing cells from a drink­ing glass or a chair. EFF argues that genet­ic mate­r­i­al con­tains a vast amount of per­son­al infor­ma­tion that should receive the full pro­tec­tion of the Con­sti­tu­tion against unrea­son­able search­es and seizures.

As human beings, we shed hun­dreds of thou­sands of skin and hair cells dai­ly, with each cell con­tain­ing infor­ma­tion about who we are, where we come from, and who we will be,” EFF Senior Staff Attor­ney Jen­nifer Lynch said. “The court must rec­og­nize that allow­ing police the lim­it­less abil­i­ty to col­lect and search genet­ic mate­r­i­al will ush­er in a future where DNA may be col­lect­ed from any per­son at any time, entered into and checked against DNA data­bas­es, and used to con­duct per­va­sive surveillance.”

Glenn Raynor’s genet­ic mate­r­i­al was col­lect­ed and test­ed with­out his knowl­edge or con­sent after he agreed to an inter­view at a police sta­tion as part of a crim­i­nal inves­ti­ga­tion. The police did­n’t have prob­a­ble cause to arrest Raynor, and he refused to pro­vide a DNA sam­ple. After he left the sta­tion, police swabbed the arm­rest of the chair where he had been sit­ting to col­lect his skin cells with­out his knowl­edge. The police then extract­ed a DNA pro­file from the cells and used it to con­nect him to the crime. The Mary­land Court of Appeals ruled that this col­lec­tion was law­ful, and Raynor peti­tioned the Supreme Court for review. EFF’s brief sup­ports Raynor’s petition.

The sophis­ti­ca­tion and speed of DNA analy­sis tech­nol­o­gy is advanc­ing expo­nen­tial­ly as the costs of the tech­nol­o­gy drop. These advances, EFF argues, raise sig­nif­i­cant ques­tions for pri­va­cy and civ­il lib­er­ties. DNA can reveal sen­si­tive per­son­al health infor­ma­tion and can allow police to iden­ti­fy a per­son­’s rel­a­tives, turn­ing fam­i­ly mem­bers into inad­ver­tent “genet­ic infor­mants” on each oth­er. Some researchers have also pos­tu­lat­ed that DNA can deter­mine race, sex­u­al ori­en­ta­tion, intel­li­gence, and even polit­i­cal predispositions.

Law enforce­ment should not be able to amass giant data­bas­es of genet­ic mate­r­i­al they find lying around,” EFF Senior Staff Attor­ney Han­ni Fakhoury said. “The Supreme Court should review this case and con­sid­er it with­in the con­text of emerg­ing tech­nolo­gies that could sig­nif­i­cant­ly affect the pri­va­cy rights of every American.”

For EFF’s ami­cus brief:


Jen­nifer Lynch
Senior Staff Attorney
Elec­tron­ic Fron­tier Foundation