On September 19, the Ninth Circuit is set to hear new arguments in Haskell v. Harris, a case challenging California’s warrantless DNA collection program. Today EFF asked the court to consider ground-breaking new research that confirms for the first time that over 80% of our DNA that was once thought to have no function, actually plays a critical role in controlling how our cells, tissue and organs behave. 

This research comes out of a gigantic nine-year, federally-sponsored, world-wide project called ENCODE (Encyclopedia Of DNA Elements), which was designed to learn more about “junk” DNA. These research findings should have broad ramifications for federal and state DNA collection programs.

The government has argued in case after case (pdf) challenging DNA collection that the 13+ genetic markers that make up a person’s DNA profile1  are, in effect, “junk” and provide no more information than a person’s fingerprint. However, the ENCODE research reinforces the points we’ve made multiple times before—that DNA—whether it is in the form of a full genetic sample or an extracted profile—can reveal an extraordinary amount of private information about you, including familial relationships, medical history, predisposition for disease, and possibly even behavioral tendencies and sexual orientation (pdf, p. 96).

EFF has filed briefs in Haskell and several other cases challenging DNA collection from arrestees, arguing this kind of warrantless seizure and search violates the Fourth Amendment. The U.S. Supreme Court has held that, subject to only a few exceptions that don’t apply here, warrantless searches “are per se unreasonable under the Fourth Amendment.” (p. 338) The Fourth Amendment is designed to protect against laws that give “police officers unbridled discretion to rummage at will among a person’s private effects,” because searches that aren’t tied to finding evidence of the crime at issue “create[] a serious and recurring threat to the privacy interest of countless individuals.” (p. 345) It doesn’t matter if there is a possibility that the search will reveal something incriminating or useful in solving past or future crimes, the cops still can’t search through our private things without a warrant. (p. 344.)

These concerns apply with equal force to government DNA collection programs, which allow the government to obtain sensitive and private information on a person without showing that the data collected is tied to a specific crime. Thanks to changes in the laws to allow DNA collection from arrestees, federal and state DNA databanks have expanded exponentially over the last several years. The FBI’s federal CODIS DNA database now contains over 11.4 million DNA profiles, and nearly 2 million of those came from California.

The plaintiffs’ stories in Haskell v. Harris show that almost anyone can be affected by warrantless DNA collection. Several were political activists and were arrested during demonstrations. They were told that if they refused to provide a DNA sample, they would be charged with a separate misdemeanor and their bail would be increased. None of the plaintiffs was ever convicted of any charges, and in fact, after their DNA samples were taken, police dropped or dismissed the charges against each of them. For one of the plaintiffs, no charges were ever filed. This is typical in California, where a third of the 300,000 people arrested for felonies each year are never convicted, and many arrestees are never even charged.

Warrantless DNA collection leads to concrete harms because it increases risks from sloppy policing and systemic DNA lab problems (pdf, pp.18-19). In the UK, David Butler was falsely accused of murder and spent eight months in jail solely because his DNA was in a database and was matched to DNA found on the murder victim (other evidence clearly established he was nowhere near the victim when the murder occurred). In Sacramento, California, Shawn Ponce was falsely arrested and held in jail for five days (pdf, pp. 19-20) for two bank robberies in Southern California that he could not have committed.

DNA collection also leads to intangible harms to privacy and civil liberties that are no less protected by the Fourth Amendment. As the plaintiffs in Haskell told the court, when the government searches through our private effects—including our DNA—without cause to believe that we’ve done anything wrong, it makes us feel we’ve been violated, and we’re less likely to engage in society. This is especially true if the government retains the material it collects from us and subjects it to repeated searches.

DNA collection and profiling are quickly becoming cheaper (pdf), faster, easier, and more prevalent in society. As we reported in May, federal laws and regulations now require the government to collect DNA from any non-United States person it detains. The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) are considering collecting DNA from 1 million people subject to administrative detention or arrest annually, many of whom are juveniles. And in documents we just received from US Citizenship & Immigration Services (USCIS), (which we will report more on soon) we’ve learned that USCIS has considered partnering with the FBI to collect DNA from refugee and asylum seekers and their family members (pdf, p.5). To save money, USCIS may store its DNA data in CODIS (the FBI's criminal database), even though these refugee and asylum seekers—like many DHS detainees and like arrestees who are never convicted—are not criminals.

The government argues that collecting DNA serves an important interest because it makes it easier to identify perpetrators of past and future crimes. Yet this type of utilitarian argument, based solely on law enforcement investigatory purposes and not on individualized suspicion, should have no weight under the Fourth Amendment. If it did, it could apply with equal force to support a program that collects DNA from everyone—which would, in effect, eviscerate the purpose of the Fourth Amendment.

The ENCODE project results reinforce the point that DNA contains important information about who we are, who we will be and our relationships with other people. That data should not be in the hands of the government without probable cause to believe it is linked to a crime.

As we’ve argued to the Ninth Circuit in Haskell and in other cases, the time to roll back governmental DNA collection is now.

• 1. When law enforcement collects DNA it takes a swab of genetic material from the inner cheek. This DNA sample contains a person’s entire genetic data. From that sample, a lab extracts data from 13 genetic markers to create a DNA “profile.” The FBI (and the state, if it’s a state arrest) retains both the sample and the profile indefinitely. The profile is entered into CODIS and searched every week.