DNA Profiles, Computer Searches, and the Fourth Amendment

By Kimel, Catherine W. | Duke Law Journal, January 2013 | Go to article overview

DNA Profiles, Computer Searches, and the Fourth Amendment


Kimel, Catherine W., Duke Law Journal


ABRSTRACT

Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled a database containing the DNA profiles of over eleven million citizens. Without judicial authorization, the government searches each of these profiles one-hundred thousand times every day, seeking to link database subjects to crimes they are not suspected of committing. Yet, courts and scholars that have addressed DNA databasing have focused their attention almost exclusively on the constitutionality of the government's seizure of the biological samples from which the profiles are generated. This Note fills a gap in the scholarship by examining the Fourth Amendment problems that arise when the government searches its vast DNA database. This Note argues that each attempt to match two DNA profiles constitutes a Fourth Amendment search because each attempted match infringes upon database subjects' expectations of privacy in their biological relationships and physical movements. The Note further argues that database searches are unreasonable as they are currently conducted, and it suggests an adaptation of computer-search procedures to remedy the constitutional deficiency.

INTRODUCTION

Having paid your debt to society, you are finally walking out the jailhouse door. And as you shake the prison dust off your feet, you resolve--successfully, as it turns out--never to commit another crime. No more frightening inmates. No more warden's ever-watchful eyes. You are free again, now and for the rest of your life.

Or are you? Under the federal system and in every state, the government creates databases to store the DNA of every person convicted of a prescribed subset of offenses. (1) Law enforcement offices then search these databases one hundred thousand times a day, seeking, in the absence of any individualized suspicion, to bring unsolved crime after unsolved crime down upon database subjects' heads. (2)

This Note addresses the Fourth Amendment issues implicit in database searches of genetic profiles that are created after and because subjects were convicted of a statutorily designated crime. DNA-collection statutes have received a great deal of scholarly attention, but existing scholarship has focused almost exclusively on the initial extraction of DNA samples. (3) Moreover, scholars have assumed that if a sample's extraction is constitutional, then subsequent searches of its corresponding genetic profile must be constitutional as well. (4)

This Note is the first work squarely to question that assumption. It argues that comparisons of genetic profiles are Fourth Amendment searches because they reveal new information about subjects' biological relationships and their physical presence. Therefore, courts should require police to obtain a warrant before they compare two genetic profiles, just as police must obtain a warrant before searching a government-owned copy of a suspect's computer for evidence of a separate crime. This Note argues that procedures for searches of computers provide more than a ready model for DNA-database searches--rather, the DNA-database context actually justifies computer-search procedures better than computer searches do, and computer-search procedures would protect genetic privacy more effectively than they protect electronic privacy.

Part I introduces DNA, DNA databases, and the evolution of DNA-collection statutes. Part II provides a brief overview of Fourth Amendment doctrine. Part III draws upon that doctrine to argue that DNA-database searches are Fourth Amendment searches because the government violates weighty privacy expectations when it compares two genetic profiles. Finally, Part IV argues that the constitutional requirements of computer-search procedures highlight deficiencies in current DNA-database search procedures, and it questions whether society truly believes that electronic privacy is more important than genetic privacy--and thus whether current policies accurately reflect the country's social values. …

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