Feds Want DNA from the Accused, Not Just the Convicted

By Brandon Lovested | in Privacy/security | 18 Apr 2008 | No Comments

Currently, federal authorities can only collect DNA from convicted criminals. That may soon change, so that anyone arrested for a crime, or merely detained, can be forced to provide a DNA sample. Senator Jon Kyl (R-AZ) is fronting the legislation, which was passed by the Senate Judiciary Committee recently. The argument is that the new measure would prevent crimes. But like a lot of ham-fisted and over-reaching legislation coming out of this Congress these days, there is no actual reasoning behind this.

At present, the FBI maintains the national registry of DNA, which is ostensibly used to compare crime-scene evidence with data on existing criminals. If Sen. Kyl gets his way, that database will expand greatly to include those merely accused of a crime or detained for questioning.

From the Washington Post:

“When police retrace the history of a serial predator after he is finally caught, they often find that he never had a prior criminal conviction, but did have a prior arrest,” Sen. Jon Kyl (R-Ariz.) said in a statement. “That means the only way they are likely to catch such a perpetrator after his first crime — rather than his 10th — is if authorities can maintain a comprehensive database of all those who are arrested, just as we do with fingerprints.”

But how often is information concerning a prior arrest thrown out in court as inadmissible, because the person wasn’t actually convicted of a crime, but merely accused? If they weren’t convicted, their guilt is not a legal fact. It’s prejudicial.

With this reasoning, every citizen should have their DNA sampled if they’re subject to federal fines. How about expanding it further, by requiring a DNA sample to be on file if you wish to fly or enter any federal building? Cutting to the chase: encode that DNA on passports or Real IDs (unencrypted, of course).

You see where this is headed, right?

This is part of a pattern of justifying wide-ranging changes in the law using a rather small set of circumstances with which to justify it. Again, from the Post:

“It’s a classic mission-creep situation,” said Jim Harper, a privacy specialist with the Cato Institute, a libertarian think tank. “These guys are playing a great law and order game . . . and in the process creating a database that could be converted into something quite dangerous.”

Beyond potentially incorporating it into Real ID, I have to wonder what the federal data retention policy will be, and what measures will be taken to safeguard this information. As for retention, the short answer is: it’s forever. However, there is a petition process that would allow those arrested but never convicted to have their DNA data purged from the system.

Petition? You mean they can say “no”? Apparently so.

But wait: if you can remove your data from the system, doesn’t that destroy the rationale behind the legislation in the first place? How would Sen. Kyl’s serial predator be stopped if he successfully defends himself on the first arrest and has his DNA removed from the system? By extension, shouldn’t a citizen who was not convicted of a crime also get his fingerprints removed from any criminal databases?

I have a sneaking suspicion this bad legislation is intended to cause a public uproar, which will be used to justify that all citizens should have their DNA on file, just to be “fair.” (The obvious exemption would be those here illegally.)

This expansion of an intrusive government power is antithetical to a free people who still believe they are in charge of that government. You wouldn’t be able to prove that belief by today’s Congress. In this case, they aren’t even trying to use the excuse of “terrorism” to justify a police state.