Following the reasoning in Boland, the court could have found in Athan that the state had intruded into Athan’s privacy in his DNA regardless of whether it was collected on his person or he had placed it in the mail or spat it onto the street. Furthermore, the court might have found that the “proper functioning of modern society” requires that an individual can walk about in the world or send letters through the mail without fear that his or her DNA might be picked up; it would be improper to require that we refrain from licking envelopes, walk around in a bubble suit, and stop disposing of personal items that might contain our DNA in order to protect our privacy.
How is it that instead, the court concluded that an individual has a greater expectation of privacy in his or her garbage than in his or her DNA? First, the court failed to distinguish the saliva sample from the DNA contained within the sample. The court found that an individual has “no inherent privacy interest in saliva.” One can agree or disagree on this point, but the privacy interest of concern was Athan’s DNA information, not his saliva per se. By focusing on the saliva and not the DNA in it, the court diminished Athan’s privacy interest.
Indeed, there is at least a growing consensus, if not near unanimity, among bioethicists, medical professionals, and policy makers that an individual’s DNA is a private matter. Our DNA can reveal both medical and nonmedical information, including inherited genetic disorders, predispositions (mutations that correlate with the onset of disease), familial disease patterns, environmental and drug sensitivities, parental linkages, ancestral identity, and sibling connections. Increasingly, scientists are hypothesizing about the possible and sometimes-dubious relationship between genes and behavior, for example, whether certain genetic markers make someone more prone to commit aggressive acts.14 It is precisely this consensus (i.e., that we are entitled to privacy in our DNA) that allowed Congress to pass the Genetic Information and Nondiscrimination Act (GINA) in 2008. This act prohibits insurance companies from requesting genetic information as a condition of hiring or enrollment, or using individual genetic information for hiring or enrollment decisions. (See chapter 14 for a detailed discussion of genetic privacy.)
The courts, too, have overwhelmingly agreed that the taking and analysis of DNA for purposes of identification is a search and therefore requires a warrant supported by probable cause. However, the courts have differed in why they have found this to be necessary. Some have focused entirely on the physical invasion associated with the forcible taking of the sample, either by drawing blood or swabbing the inside of a person’s mouth. Others have considered another kind of invasiveness that relates to the informational aspect of DNA and distinguish the taking of a DNA sample from that of a fingerprint. Unlike fingerprints, which reveal very little information about an individual and cannot readily be used for anything beyond identification, a DNA sample provides an almost unlimited amount of sensitive information about a person. The potential to access sensitive personal genetic information remains as long as the biological sample is retained (see chapter 14).
In Athan the court acknowledged the potential for DNA to reveal a lot of private information but then dismissed this concern simply because there was no evidence to indicate that the police had used Athan’s DNA for anything beyond identification. This seems shortsighted and contradictory. The issue is not what law enforcement did or did not do with Athan’s DNA in this one instance; it is what law enforcement can do once it has a person’s DNA in its possession. If one agrees that DNA can reveal highly private information about a person, then the only real way to protect against the potential misuse of DNA is to not collect it in the first place or to require that it be destroyed after an individual’s identification has been confirmed.
The court also adopted law enforcement’s argument that the DNA had been “voluntarily abandoned” or “discarded.” Since Athan sent his sample in the mail, and it was not extracted forcibly from him, his privacy was not invaded. This argument is problematic on several counts. First, “abandoned” implies a knowing intent to part with an item. In Athan’s case, although he may have knowingly abandoned his saliva in licking the envelope and sending it off, it is not at all clear that he knowingly abandoned the information contained within that saliva. Athan’s intent was to return a letter that was to be read by attorneys, in whom he placed his trust. His intent was not to send them his DNA. Athan may not have known that his DNA was contained in his saliva sample on the envelope at a level sufficient for DNA testing, or even that his saliva contained DNA information in the first place.
DNA is not so much voluntarily abandoned as it is inadvertently, but naturally, released from our bodies in the form of skin cells, saliva, and hair samples. How “voluntary” is it that we discard DNA every time we sneeze, urinate, or bleed from a scratch? Under the court’s reasoning in Athan, any and all DNA left behind by an individual is fair game for the police.
One justice recognized that regular shedding of DNA should not be considered an abandonment of privacy in it. However, this justice still concurred with the majority in concluding that Athan waived his privacy right when he placed the envelope in the mail. Athan’s act of sending the saliva through the mail was an abandonment of privacy in the saliva. By his reasoning, DNA picked up from a cigarette butt or spit, sweat drops, or hair strands left behind on the sidewalk should not be fair game for testing without a warrant, whereas items that come into possession of the police through the use of trickery should. This approach seems highly problematic, since it encourages law-enforcement personnel to engage in ethically questionable behavior any time they want to get a person’s DNA. If one has an expectation of privacy in his or her DNA, then it follows that the expectation will apply to any nonconsensual analysis of biological materials—whether acquired by entrapment or by following someone around. Either way, the analysis of the DNA is occurring without the knowledge or consent of the individual.
In a minority dissent, Washington Supreme Court justice Mary E. Fairhurst wrote a defense of Athan’s DNA privacy that was signed by two other justices of the court:
Because Athan’s DNA provided the government vast amounts of intimate information beyond mere identity, I would conclude that Athan has privacy interests in his saliva and DNA. In stark contrast to saliva, fingerprints, and other physical characteristics, one never exposes one’s DNA to the public. . . . The detectives intruded on Athan’s expectation of privacy without authority of law when they collected his saliva from an envelope based on a ruse and tested his DNA. Athan did not voluntarily relinquish his privacy interests in either his saliva or his DNA by licking the envelope and placing it in the mail.15
Beyond Athan: Revisiting Abandoned DNA
Whether it intended to or not, the Washington Supreme Court authorized a free-for-all with regard to the collection of DNA by law enforcement. By the court’s reasoning, police could follow people around and take their DNA without their knowledge or consent, for more or less any reason. As Elizabeth Joh at the University of California, Davis, states, this collection technique “is a backdoor to population-wide data banking”—the banking of genetic information from virtually anyone. Furthermore, this backdoor method of DNA collection is “in stark distinction to the growing body of commentary on the collection of DNA samples from prisoners and parolees for state and federal DNA databases.”16 Indeed, state legislatures and the courts have gone to great lengths to debate and develop a complex array of policies concerning when and under what circumstances law enforcement can collect DNA and from whom (see chapter 2). If police can take DNA surreptitiously, why would they ever bother to get a warrant to obtain someone’s DNA? And what would stop law enforcement from building a DNA data bank of suspicionless suspects for purposes of surveillance, completely outside the boundaries of the laws that currently govern our DNA data banks?
To date, no court has yet held police collection of “abandoned” DNA illegal. In the handful of other cases that have been brought to date, courts have adopted the notio
n that DNA collected from cigarette butts or coffee cups is “abandoned.” According to Joh, “Once DNA is considered abandoned or knowingly exposed, the Fourth Amendment does not apply at all.”17
If we wish to afford any protection to the genetic information contained in our DNA, we need to reframe the debate over surreptitious DNA collection and recognize that the trail of DNA that we leave everywhere we go is something other than “abandoned.” We “abandon” items we no longer wish to own or carry around. In contrast, we have no choice but to leave our DNA pretty much everywhere we go. Short of walking around in the world in a plastic bubble suit, it would be virtually impossible to refrain from shedding our DNA (see box 6.1).
BOX 6.1 How Much DNA Do You Shed?
DNA is routinely released from humans. We shed our skin on an ongoing basis. DNA is also released through urination, bleeding, and blowing one’s nose. As discussed in chapter 1, your DNA is found in each and every one of your skin cells. And only a few cells are needed to test your DNA.
Consider the following:
The average human loses between 40 and 100 hairs each day.a
Between 30,000 and 40,000 dead skin cells fall from the human body every minute.b
From a single sneeze there are 3,000 droplets containing virus particles, bacteria, and both dead and live cells.c
a “ScienceFacts,” http://www.science-facts.com/?page_id=16 (accessed May 23, 2010).
b Britannica Encyclopedia Online, “The Skin You’re in,” January 2009, http://www.britannica.com/bps/additionalcontent/18/36011874/The-Skin-Youre-In (accessed May 23, 2010).
c Diana Treece, “Tuberculosis,” InnovAiT 3, no. 1 (2010): 20–27.
Source: Authors.
Law enforcement’s treatment—and court acceptance—of DNA as “abandoned” could have spillover effects well beyond law enforcement. Currently there are no protections from private investigators or amateur investigators acquiring and analyzing a biological sample from an individual who is unaware of their motives.18 Robert Green and George Annas, writing in the New England Journal of Medicine, imagine a scenario where someone obtains an abandoned hair or saliva sample from a presidential candidate with the purpose of engaging in a form of “genetic McCarthyism.”19 That is, the stealth DNA could be used to disclose that the candidate has an increased risk of a disease. This scenario can be generalized to any individual who is a cultural icon for whom there is a high paparazzi value on personal, especially embarrassing, information offered to the media.
Unlike in the court in Athan, some other courts that have considered this issue have likened so-called abandoned DNA to trash.20 These cases have relied on the U.S. Supreme Court case California v. Greenwood, where, in contrast to the Washington State Supreme Court’s decision in Boland, the Court ruled that an individual does not have an expectation of privacy in garbage left on the curb since it is “knowingly exposed” to the public.21 But even if one accepts the Supreme Court’s reasoning, garbage is not a very good analogy to our DNA. When we leave our garbage on the street, we may very well know that someone might rummage through it. Over four decades ago a self-styled member of the 1960s counterculture yippie movement named A. J. Weberman rummaged through the garbage of folk legend Bob Dylan. Weberman, who coined the term “garbologist” to describe his obsession with acquiring any shreds of information about his folk icon, viewed Dylan’s garbage as a public, not a private, resource.
We expect and accept that the private information that might be contained in letters or bills can be accessed by virtually anyone who might come into contact with our garbage, which is why some people choose to shred personal papers and letters before disposal. But in contrast to letters tossed in the garbage, we cannot “shred” the DNA that continuously gets discharged from our bodies. While we can control what we choose to throw in the garbage, we cannot refrain from leaving our DNA everywhere we go.
The Supreme Court’s decision in California v. Greenwood was also premised on the notion that garbage can be picked up by any passerby and deciphered (the “common knowledge doctrine”). But DNA found in the garbage or on other abandoned property does not satisfy the “common knowledge doctrine” because only specialists can decipher it with sophisticated, uncommon equipment. One can argue that the loss of privacy for our trash extends to any ordinary person who can read, but the loss of privacy for our DNA only extends to a small group of specialists who can extract our DNA and analyze it, revealing information that we ourselves might not wish to know.
Joh suggests that perhaps garbage is not a helpful analogy for thinking about DNA that we leave behind. She suggests that more helpful comparisons might be found with body parts or human waste, although even these comparisons are limited, since even a tiny amount of DNA has the potential to reveal far more information about a person. Perhaps most helpful, she notes, would be to change the terminology by which we refer to the DNA that is collected without our knowledge or consent. Perhaps if we thought of law enforcement’s collection and use of this DNA as “covert involuntary DNA sampling,” we might see a change in the current passivity toward this issue. In Victoria, Australia, residents have called for laws banning “covert DNA sampling” by Victorian police, and in response, the attorney general of Victoria has promised to examine the “legal loophole” that currently allows police to collect DNA surreptitiously.22
Courts have been more protective of personal privacy when our private speech, objects hidden from view, or personal materials can be accessed only by individuals with special technology and are not open for everyone to see. In Kyllo v. United States the Supreme Court ruled 5–4 that the thermal imaging of the defendant’s home constituted a search under the Fourth Amendment and thus required a warrant. The majority of the court found that a person’s home is protected against warrantless searches by clever technologies that are not generally available to the public: “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ . . . constitutes a search—at least where (as here) the technology in question is not in general public use” (see box 6.2).23
BOX 6.2 Kyllo v. United States:
Technological Intrusion into Home and Body
In the early 1990s Danny Kyllo, who lived in a triplex home in Florence, Oregon, was suspected by an agent of the U.S. Bureau of Land Management (BLM) of growing and distributing marijuana from his residence. The BLM agent enlisted help from a member of the Oregon National Guard to conduct surveillance of Kyllo’s residence with a thermal imager, a device that can detect infrared heat emitted from the surface of an object. In this instance the thermal imager was used to measure infrared radiation being emitted from the walls of Kyllo’s home. The surveillance was conducted in a car on a public street simply by pointing the thermal imager at the walls of Kyllo’s home and comparing the output with the radiation emitted from neighboring homes.
In mid-January 1992 the BLM agent observed that higher levels of infrared heat were coming from Kyllo’s walls than from those of his neighbors. He inferred that this was because Kyllo was using high-intensity lamps to grow marijuana. Citing tips from informants, utility bills, and the thermal-imaging data, the BLM agent sought and received a search warrant from a federal judge. When agents entered Kyllo’s home, their suspicions were confirmed. The suspect had more than 100 marijuana plants. Kyllo was charged with and convicted of manufacturing marijuana.
Kyllo petitioned the court to overturn his conviction on the grounds that the warrant was granted under evidence from the thermal-imaging device that was unlawfully obtained and violated his privacy under the Fourth Amendment of the Constitution. The federal Ninth Circuit Court of Appeals rejected Kyllo’s petition, stating that he had shown no subjective expectation of privacy because he made no effort to conceal the heat escaping from his home. In 1994 the Ninth Circuit Court of Appeals reviewed the Kyllo case, focusing on whether t
he warrant used to search the home of Kyllo was based on knowingly and recklessly false information. The court reversed and remanded the decision of the district court, requesting that the court hold an evidentiary hearing on the capabilities of the Afema 210 thermal imager. Once again, the district court denied Kyllo’s motion to suppress the thermal-imaging evidence on the grounds that warrantless searches of homes with the thermal imager were permissible. Kyllo appealed again in 1998 to the Ninth Circuit, which found, in a 2–1 decision, that the use of thermal-imaging systems was unconstitutional. However, after the government petitioned for a rehearing, the case went back to the Ninth Circuit, where one judge retired and another replaced him. The decision this time was 2–1 against Kyllo on the grounds that the monitoring of heat emissions by a thermal-imaging system did not intrude on Kyllo’s privacy.
The key point before the jurists was whether a technological device allowed police to gain confidential information from a suspect (namely, that he was using intense heat lamps and growing marijuana) that they could otherwise have obtained only by physical entry into the person’s home. Does the use of this technology violate a person’s privacy interests? Does it constitute an unreasonable search? Are police subject to the constraints of the Fourth Amendment when they avail themselves of a technological device that functions as a surrogate for physical entry into one’s home? The case was argued before the Supreme Court on February 20, 2001, and decided on June 11 of that year. In a 5–4 decision the Court ruled that the thermal imaging of Kyllo’s home constituted a search and thus required a warrant.
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