According to the Electronic Frontier Foundation (EFF), residents of California who have been arrested but not charged – much less convicted of a crime – have certain rights to the privacy of their genetic material. EFF argued this point when it filed a supporting brief to the California Supreme Court late last week.
EFF is urging California’s highest court to find and hold that the state’s current arrestee DNA collection law violates search and seizure protections and privacy rights guaranteed under the California constitution. As it stands, the law allows California law enforcement to collect DNA from any individual arrested on the suspicion of a felony without first obtaining a warrant or a finding by a judge that there existed sufficient probable cause for the arrest. The state stores DNA samples of arrestees for an indefinite period of time and allows local, state and federal law enforcement agencies to access and search these DNA profiles.
The brief was submitted in regards to the case of People v. Buza, where a San Francisco resident challenged his conviction for his refusal to provide his DNA sample following his arrest. EFF argues that California should not be allowed to collect DNA from simple arrestees because DNA contains a person’s complete genetic makeup. The group argues that those arrested, who may or may not eventually be charged with or convicted of a criminal offense, have a fundamental right to keep their genetic makeup out of the hands of the state.
EFF Senior Staff Attorney Jennifer Lynch stated that, “Nearly a third of those arrested for suspected felonies in California are later found to be innocent in the eyes of the law. Hundreds of thousands of Californians who were once in custody but never charged still have their DNA stored in law enforcement databases, subject to continuous searches.”
She added that, “This not only violates the privacy of those arrested, it could impact their family members who may someday be identified through familial searches. The court must recognize that warrantless and suspicionless DNA collection from arrestees puts us on a path towards a future where anyone’s DNA can be gathered, searched, and used for surveillance.”
On the flip side of the argument, California officials believe that the court should follow the decision laid out by the United States Supreme Court, which ruled in the case of Maryland v. King that the government’s needs to use DNA to identify those who are arrested outweigh American citizens’ privacy rights – just as it does with fingerprints.
EFF counters that argument by stating that while fingerprints do not contain a person’s entire genome, DNA samples do. As it stands, California law does not prohibit law enforcement from conducting familial searches. Moreover, the state makes it very difficult for citizens to get their DNA records removed from the database.
Lynch pointed out that, “A lower court in this case correctly recognized that California’s DNA collection law deeply intrudes on the privacy interests of arrestees. The California Supreme Court should come to the same conclusion and strike it down.”