Today, the U.S. Supreme Court ruled that police officers have the right to force anyone who is arrested, even if they are not convicted of any crime, and even if they are not formally accused of any crime, to relinquish a sample of their bodily tissues from which a copy of their genetic code – their DNA – can be extracted. Police officers, the Supreme Court also decided, can then keep a copy of that DNA code on file forever, regardless of whether the arrest was judged to be without merit.
The Fourth Amendment to the Constitution promises, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” So, the constitutional test is whether the governmental seizure (and retention and sharing with other governmental agencies and ongoing search-at-will) of Americans’ DNA can be considered a reasonable act.
Justice Anthony Kennedy seems to think it’s reasonable for police officers to extract DNA from anybody they happen to hold in custody, no matter how temporarily. Kennedy wrote, in the majority opinion released today, “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Comparisons of DNA to photographs and fingerprints seem to be at the core of the majority’s approval of commonplace DNA seizure by the police. Justice Samuel Alito called DNA seizure and storage “the fingerprinting of the 21st century”. These arguments, however, failed to grasp the profound difference between a fingerprint or photograph on the one hand, and a person’s entire genetic code on the other hand. What makes the difference is that, while a photograph only captures one angle of a person’s external appearance at one moment in time, and a fingerprint reveals only the pattern of lines at the end of a person’s finger, a person’s DNA sequence lays bare a tremendous amount of information about a person’s biological and ancestral identity. DNA isn’t just like a bar code, identifying a person as unique through a series of arbitrary characters. DNA can indicate a person’s biological processes and vulnerabilities. DNA shows where a person came from, and who they are related to. DNA can give clues to a person’s probable lifespan, and likely diseases… and a great deal more. We don’t know at this point how much information about a person can be extracted from a sample of their DNA, but we do know that the scope of that information is huge, a thorough schematic of that person’s most private, internal operations.
It’s likely that, in the future, knowing a person’s DNA won’t just allow a government to identify where that person has been, but will enable a government to craft biological or chemical weapons designed to work uniquely against that person – to kill, to disable, or to control. The fact that the technology to execute such attacks does not exist at present does not diminish the fact that the information required to create such individualized genetic weapons is in fact contained within each person’s DNA. With computer technology and genetic engineering techniques continuing to advance at a remarkable pace, it is reasonable to conclude that the potential uses of a person’s DNA code will be remarkably large in the future. When the police, or other government agencies, hold citizens’ DNA codes, they hold the power to exploit DNA’s information long beyond the term of a person’s imprisonment.
DNA holds the code not just for the recognition of biological material, but for the creation of biological material. It is not at all far-fetched to conclude that a person’s DNA sequence may be used, in the near future, to create cells, tissues, and even entire organs, that will be genetically identical to the person from whom DNA was seized. The basic purpose of DNA is to perform such biological replication. When a person’s DNA is held by the government, that person is, in a sense, held in government custody forever, even after they have walked out of a jail cell where they spent the night on a case of mistaken identity.
DNA is not just a brief marker of identity. It is a powerful tool that belongs to the person it has encoded. It is therefore not at all a reasonable thing for the police, or any other government agency, to seize, to hold and to use in perpetuity.