[Dataloss] Vast DNA Bank Pits Policing Vs. Privacy

Sat Jun 3 22:51:37 EDT 2006

Not exactly "data loss" per se, but perhaps a relevant item for the
list......rf

Vast DNA Bank Pits Policing Vs. Privacy
Data Stored on 3 Million Americans
http://www.washingtonpost.com/wp-dyn/content/article/2006/06/02/AR2006060201
648_pf.html

By Rick Weiss
Washington Post Staff Writer
Saturday, June 3, 2006; A01

Brimming with the genetic patterns of more than 3 million Americans, the
nation's databank of DNA "fingerprints" is growing by more than 80,000
people every month, giving police an unprecedented crime-fighting tool but
prompting warnings that the expansion threatens constitutional privacy
protections.

With little public debate, state and federal rules for cataloging DNA have
broadened in recent years to include not only violent felons, as was
originally the case, but also perpetrators of minor crimes and even people
who have been arrested but not convicted.

Now some in law enforcement are calling for a national registry of every
American's DNA profile, against which police could instantly compare
crime-scene specimens. Advocates say the system would dissuade many would-be
criminals and help capture the rest.

"This is the single best way to catch bad guys and keep them off the
street," said Chris Asplen, a lawyer with the Washington firm Smith Alling
Lane and former executive director of the National Commission on the Future
of DNA Evidence. "When it's applied to everybody, it is fair, and frankly
you wouldn't even know it was going on."

But opponents say that the growing use of DNA scans is making suspects out
of many law-abiding Americans and turning the "innocent until proven guilty"
maxim on its head.

"These databases are starting to look more like a surveillance tool than a
tool for criminal investigation," said Tania Simoncelli of the American
Civil Liberties Union in New York.

The debate is part of a larger, post-Sept. 11 tug of war between public
safety and personal privacy that has intensified amid recent revelations
that the government has been collecting information on personal phone calls.
In particular, it is about the limits of the Fourth Amendment, which
protects people from being swept into criminal investigations unless there
is good reason to suspect they have broken the law.

Once someone's DNA code is in the federal database, critics say, that person
is effectively treated as a suspect every time a match with a crime-scene
specimen is sought -- even though there is no reason to believe that the
person committed the crime.

At issue is not only how many people's DNA is on file but also how the
material is being used. In recent years, for example, crime fighters have
initiated "DNA dragnets" in which hundreds or even thousands of people were
asked to submit blood or tissue samples to help prove their innocence.

Also stirring unease is the growing use of "familial searches," in which
police find crime-scene DNA that is similar to the DNA of a known criminal
and then pursue that criminal's family members, reasoning that only a
relative could have such a similar pattern. Critics say that makes suspects
out of people just for being related to a convict.

Such concerns are amplified by fears that, in time, authorities will try to
obtain information from stored DNA beyond the unique personal identifiers.

"Genetic material is a very powerful identifier, but it also happens to
carry a heck of a lot of information about you," said Jim Harper, director
of information policy at the Cato Institute, a libertarian think tank in
Washington concerned about DNA database trends.

Law enforcement officials say they have no interest in reading people's
genetic secrets. The U.S. profiling system focuses on just 13 small regions
of the DNA molecule -- regions that do not code for any known biological or
behavioral traits but vary enough to give everyone who is not an identical
twin a unique 52-digit number.

"It's like a Social Security number, but not assigned by the government,"
said Michael Smith, a University of Wisconsin law professor who favors a
national database of every American's genetic ID with certain restrictions.

Still, the blood, semen or cheek-swab specimen that yields that DNA, and
which authorities almost always save, contains additional genetic
information that is sensitive, including disease susceptibilities that could
affect employment and health insurance prospects and, in some cases,
surprises about who a child's father is.

"We don't know all the potential uses of DNA, but once the state has your
sample and there are not limits on how it can be used, then the potential
civil liberty violations are as vast as the uses themselves," said Carol
Rose, executive director of the ACLU of Massachusetts.

She and others want samples destroyed once the identifying profile has been
extracted, but the FBI favors preserving them.

Sometimes authorities need access to those samples to make sure an old
analysis was done correctly, said Thomas Callaghan, who oversees the FBI
database. The agency also wants to be able to use new DNA identification
methods on older samples as the science improves.

Without that option, Callaghan said, "you'd be freezing the database to
today's technology."
Crime-Fighting Uses

Over the past dozen years, the FBI-managed national database has made more
than 30,000 "cold hits," or exact matches to a known person's DNA, showing
its crime-fighting potential.

In a recent case, a Canadian woman flew home the day after she was sexually
assaulted in Mexico. Canadian authorities performed a semen DNA profile and,
after finding no domestic matches, consulted the FBI database. The pattern
matched that of a California man on probation, who was promptly found in the
Mexican town where the woman had been staying and was charged by local
authorities.

Congress authorized the FBI database precisely for cases like that, on the
rationale that sexual predators and other violent felons tend to be repeat
offenders and are likely to leave DNA behind. In recent years, however,
Congress and state legislators have vastly extended the system's reach.

At least 38 states now have laws to collect DNA from people found guilty of
misdemeanors, in some cases for such crimes as shoplifting and
fortunetelling. At least 28 now collect from juvenile offenders, too,
according to information presented last month at a Boston symposium on DNA
and civil liberties, organized by the American Society of Law, Medicine and
Ethics.

The federal government and five states, including Virginia, go further,
allowing DNA scans of people arrested. At least four other states plan to do
so this year, and California will start in 2009.

Opponents of the growing inclusion of people arrested note that a large
proportion of charges (fully half for felony assaults) are eventually
dismissed. Blood specimens are not destroyed automatically when charges are
dropped, they note, and the procedures for getting them expunged are not
simple.

Even more controversial are DNA dragnets, which snare many people for whom
there is no evidence of guilt. Given questions about whether such sweeps can
be truly voluntary -- "You know that whoever doesn't participate is going to
become a 'person of interest,' " said Rose of the ACLU -- some think they
violate the Fourth Amendment.

Civil liberties issues aside, the sweeps rarely pay off, according to a
September 2004 study by Samuel Walker, a criminology professor at the
University of Nebraska. Of the 18 U.S. DNA dragnets he documented since
1990, including one in which police tested 2,300 people, only one identified
the offender. And that one was limited to 25 men known to have had access to
the victim, who was attacked while incapacitated in a nursing home.

Dragnets, Walker concluded, "are highly unproductive" and "possibly
unconstitutional."

Familial searches of the blood relatives of known offenders raise similar
issues. The method can work: In a recent British case, police retrieved DNA
from a brick that was thrown from an overpass and smashed through a
windshield, killing the driver. A near-match of that DNA with someone in
Britain's criminal database led police to investigate that offender's
relatives, one of whom confessed when confronted with the evidence.

Not investigating such leads "would be like getting a partial license plate
number on a getaway car and saying, 'Well, you didn't get the whole plate so
we're not going to investigate the crime,' " said Frederick Bieber, a
Harvard geneticist who studies familial profiling.

But such profiling stands to exacerbate already serious racial inequities in
the U.S. criminal justice system, said Troy Duster, a sociologist at New
York University.

"Incarceration rates are eight times higher for blacks than they are for
whites," he said, so any technique that focuses on relatives of people in
the FBI database will just expand that trend.
A Universal Database?

That's a concern that many in law enforcement raise, too -- as an argument
in favor of creating a universal DNA database of all Americans. The system
would make everyone a suspect of sorts in every crime, they acknowledge. But
every criminal, regardless of race, would be equally likely to get caught.

Opponents cite a litany of potential problems, including the billions it
would cost to profile so many people and the lack of lab capacity to handle
the specimens.

Backlogs are already severe, they note. The National Institute of Justice
estimated in 2003 that more than 350,000 DNA samples from rape and homicide
cases were waiting to be processed nationwide. As of the end of last year,
more than 250,000 samples were backlogged in California alone.

And delays can matter. In 2004, police in Indiana arrested a man after his
DNA matched samples from dozens of rapes -- the last 13 of which were
committed during the two years it took for the sample to get through the
backlog.

A big increase in tests would also generate more mistakes, said William C.
Thompson, a professor of criminology, law and society at the University of
California at Irvine, whose studies have found DNA lab accuracy to be "very
uneven."

In one of many errors documented by Thompson, a years-old crime-scene
specimen was found to match the DNA from a juvenile offender, leading police
to suspect the teenager until they realized he was a baby at the time of the
crime. The teenager's blood, it turned out, had been processed in the lab
the same day as an older specimen was being analyzed, and one contaminated
the other.

"A universal database will bring us more wrongful arrests and possibly more
wrongful convictions," said Simoncelli of the ACLU.

But Asplen of Smith Alling Lane said Congress has been helping states
streamline and improve their DNA processing. And he does not think a
national database would violate the Constitution.

"We already take blood from every newborn to perform government-mandated
tests . . . so the right to take a sample has already been decided," Asplen
said. "And we have a precedent for the government to maintain an identifying
number of a person."

While the debate goes on, some in Congress are working to expand the
database a bit more. In March, the House passed the Children's Safety and
Violent Crime Reduction Act.

Under the broad-ranging bill, DNA profiles provided voluntarily, for
example, in a dragnet, would for the first time become a permanent part of
the national database. People arrested would lose the right to expunge their
samples if they were exonerated or charges were dropped. And the government
could take DNA from citizens not arrested but simply detained.