21. Eric Topfer, “Searching for Needles in an Ever Expanding Haystack: Cross-Border DNA Data Exchange in the Wake of the Prüm Treaty,” Statewatch 18 (July–September 2008): 14–16, information at 16.
13. Italy
1. Giuseppe Novelli, professor of medical genetics at Tor Vergata University in Rome and adjunct professor for medical sciences at the University of Arkansas, quote from a personal interview in December 2008 by Marina Semiglia, author of “DNA in the Mass Media,” a thesis discussed in February 2009 at the Scuola Internazionale Superiore di Studi Avanzati (SISSA) in Trieste.
2. Nathan van Camp and Kris Dierickx, National Forensic DNA Databases, Socio-Ethical Challenges and Current Practices in the EU, European Ethical-Legal Papers 9 (Leuven: Katholieke Universiteit Leuven, Centre for Biomedical Ethics and Law, 2007), https://www.kuleuven.be/cbmer/page.php?LAN=E&ID=399&FILE=subject&PAGE=1 (accessed April 21, 2010).
3. The Agency for the Protection of Personal Data, also called the Data Protection Authority or the Privacy Authority, is an institution created in 2003 by law decree no. 153, the so-called Privacy Bill, available at http://www.garanteprivacy.it/garante/navig/jsp/index.jsp. The Privacy Authority is an administrative institution that is super partes (completely independent of others), and its management is sui generis.
4. Agenzia Giornalistica Italiana (AGI), April 28, 2004.
5. “Authorization to Treat Genetic Data,” February 22, 2007, Gazzetta Ufficiale, no. 65 (March 19, 2007), written by the authority, http://www.garanteprivacy.it/garante/navig/jsp/index.jsp, document 1395420 (accessed April 23, 2010).
6. “Segnalazione al Parlamento e al Governo su dati genetici per fini di giustizia,” Archive Document no. 1456163, September 19, 2007, http://www.garanteprivacy.it/garante/navig/jsp/index.jsp (accessed April 23, 2010).
7. Ibid.
8. See Garante Per La Protezione Dei Dati Personali, Bulletin No. 87, October 15, 2007, http://www.garanteprivacy.it/garante/doc.jsp?ID=1448799 (accessed April 21, 2010).
9. Silvio Berlusconi (Forza Italia) led the government. The law decree—a legislative instrument provided in the constitution—is immediately operative. The “Pisanu project” was supported by Alleanza Nazionale, whose leader, Gianfranco Fini, was at the time foreign minister, while Federation of the Greens (Federazione dei Verdi) and the Communist Refoundation Party (Partito della Rifondazione Comunista)—extreme leftist formations in the Italian political panorama—voted against it.
10. Bill no. 905, under examination in the Senate, http://mobile.senato.it/documenti/repository/dossier/studi/2008/Dossier_037.pdf (accessed April 21, 2010).
11. The Prüm Treaty (May 27, 2005) aims to foster ways of tackling cross-border crime by allowing for individual DNA profiles to be directly compared with those from computerized databases of other member states, for instance, for identification and prosecution purposes. In particular, it contains dispositions about the exchange of data banks and fingerprints. See Europa Press Release Rapid, “The Integration of the ‘Prüm Treaty’ into EU-legislation—Council Decision on the Stepping Up of Cross-Border Co-operation, Particularly in Combating Terrorism and Cross-Border Crime,” http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/803 (accessed April 23, 2010). The full text of the Prüm Treaty is available at Balzacq Thierry, “Challenge, Liberty and Security: The Treaty of Prüm and the Principle of Loyalty,” December 4, 2006, http://www.libertysecurity.org/IMG/pdf/Prum-ConventionEn.pdf (accessed April 22, 2010).
12. The 17 signatory nations to the Treaty of Prüm as of 2010 are Germany, Austria, the Netherlands, Belgium, Luxembourg, Spain, France, Finland, Italy, Portugal, Slovenia, Sweden, Bulgaria, Romania, Greece, Slovakia, and Hungary.
13. See Chamber of Deputies, XVI Legislature, Service Studies, Bills, Italy’s Accession to the Treaty of Prüm, http://documenti.camera.it/leg16/dossier/testi/GI0135.htm#_Toc221950440 (accessed April 23, 2010).
14. Two police corps operate in Italy and intervene in the case of serious crimes: the Carabinieri, mostly present in medium and small urban centers and under the direct control of the Ministry of Defense, and the State Police, above all present in big urban centers, under the control of the home secretary.
15. The attorney general of the Court of Appeal represents the public prosecution in the second (and final) trial in Italian justice. See http://www.codicisimone.it/codici/index0.htm (accessed April 23, 2010).
16. The rules for the collection of evidence are listed in the Code of Criminal Procedure (articles 187 and following). The onus of proof of innocence does not lie with the defendant, whose innocence is always presumed. His conviction (Code of Criminal Procedure, article 533) must come after a full positive demonstration of his guilt; where no claim is made regarding the insufficiency of proof, the judge pronounces the sentence “Not guilty,” and the defendant is acquitted. If the defendant is proved guilty of the crime he or she has been accused of, then it has been proved “beyond every reasonable doubt.” In spite of the emphatic tones of the national media, the mere finding of somebody’s (and especially of a defendant’s) DNA at the scene of the crime does not represent a condition either necessary or sufficient for a conviction.
17. Attilio Bolzoni, “I bimbi fantasma di Lampedusa,” La Repubblica, October 7, 2008.
18. Beatrice Montini, “I Carabinieri hanno un archivio DNA illegale,” L’Unità, May 17, 2006; Beatrice Montini, “DNA, già 15 mila identità conservate fuorilegge,” L’Unità, May 18, 2006.
19. Colonel Dr. Luciano Garofano, Carabinieri, Italy, personal correspondence with Sheldon Krimsky, January 28, 2009.
20. Declan McCullagh, “Global Police Database for Fingerprints, Airline Data?” Zdnet Asia, July 13, 2007, http://www.zdnetasia.com/news/security/0,39044215,62028349,00.htm (accessed April 23, 2010).
21. Interpol media release, “INTERPOL Underlines G8’s Vital Role in Global Effort Against Transnational Crime in 21st Century,” June 10, 2008, http://www.interpol.int/public/ICPO/PressReleases/PR2008/PR200823.asp (accessed April 23, 2010).
22. The draft law crafted by the under secretary for justice, Luigi Li Gotti, in the previous Prodi government (Act of Senate 1877) to establish national DNA data banks was in fact accepted by the XVI legislature, with the Berlusconi government, first by Act of the Senate 586 and later modified by Act of the Senate 905. From comparison of these two bills (1877 and 905) it emerges that (summary no. 1, July 30, 2008) “the legislative suggestions of parliamentary and government initiatives have an identical content, with the exception of the regulation for the financial backing,” and that “the measures have the same content of a similar bill (Act of Senate 1877) of governmental initiatives, presented in the past legislature.”
23. Security dispositions (also known as “Security Package”), bill no. 773, introduced on June 3, 2008, http://www.governo.it/GovernoInforma (search “Pacchetto Sicurezza”) (accessed April 23, 2010).
24. Home Secretary Roberto Maroni, during his half-yearly report about people missing, announced in December 2008: “To this date the dead bodies found by police and impossible to identify are 648. Each of them was certainly a lost person; therefore it is necessary to have a system to identify them without any possible doubt, accelerating the approval of rules to create a DNA databank.” See Corriere Della Serat.it, http://www.corriere.it/cronache/08_dicembre_05/privacy_banche_dati_italia_gran_bretagna_2d0ed3e4-c2ec-11dd-8440-00144f02aabc.shtml (accessed April 23, 2010).
25. Schede di lettura, XVI Legislaturea Disegni di legge, http://mobile.senato.it/documenti/repository/dossier/studi/2008/Dossier_037.pdf. (accessed April 23, 2010).
26. In 1997 the European Union officially recognized the importance of DNA data banks as an instrument to contribute to penal investigations. The EU Council’s resolution of June 9, 1997, about the exchange of DNA profiles states that “every country belonging to the Community is invited to organize the formation of national DNA databanks,” and “such system should offer sufficient guarantees for security and the protection
of personal data.” Gazzetta Ufficiale, no. C193 (June 24, 1997): 2–3. See Eur-Lex Access to European Law, European Council Resolution of June 25, 2001, recalling Resolution of June 9, 1997, http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32001G0703(01)&model=guichett (accessed April 23, 2010).
27. Garofano, personal correspondence with Krimsky.
28. Maria Fronthaler was a 74-year-old woman who was raped and murdered in her home at Valle San Silvestro, a village near Dobbiaco, during the night of March 31 and April 1, 2002. The Carabinieri of the Parma RIS found a suspect after conducting a dragnet of approximately 200 village male inhabitants. They all accepted the mouth-swabbing test, and their DNA was compared with that in the seminal liquid found on the corpse. At a certain point the Carabinieri found a near match to the sample that belonged to the father of Andreas Kristler, a 20-year-old who was not living in the village at the time at which the dragnet was conducted. He was sentenced to 18 years. Pierluigi Deppentori, “Test DNA su tutti maschi del paese scopesto l’assassino di unlanziana,” La Repubblica, June 8, 2002.
29. See We the People Will Not Be Chipped.Com, “Italy to Create DNA Databank,” September 22, 2007, http://www.wethepeoplewillnotbechipped.com/main/news.php?readmore=543 (accessed April 23, 2010).
30. Colonel Dr. Luciano Garofano, Carabinieri, Italy, personal correspondence with Sheldon Krimsky, January 5, 2009. Before legislation setting up the national forensic DNA database, the Italian courts had faced the case of DNA and the “tears of a statue of the Madonna.” A small statue of the Madonna belonging to a local family living in Civitavecchia, Italy was alleged to have shed tears of blood. Many local residents proclaimed this a miracle. When police had the red liquid analyzed it turned out to be human blood belonging to a male individual. A judge ordered the blood of the owner of the statue to be analyzed, in order to compare his DNA with that of the statue’s tears, The owner did not give his consent. The Constitutional Court ruled that the owner of the Madonna had a legitimate right to refuse the DNA test. “The Crying Game,” The Guardian, December 9, 2000, http://www.guardian.co.uk/theguardian/2000/dec/09/weekend7.weekend1 (accessed April 22, 2010).
31. See note 11.
32. Relazione 2006: Discorso del Presdiente Francesco Pizzetti (Rome: Garante Per La Protezione Dei Dati Personali, July 12, 2007, http://www.garanteprivacy.it/garante/document?ID=1422370 (accessed April 21, 2010).
33. Reservations were also expressed by the Communist Refoundation Party, worried about the “cataloguing” of citizens, while the Green Party feared that this could lead to DNA records being collected for the entire population. But other members of Parliament supported the initiative as “a measure that in terms of security finally puts Italy at the same level as the rest of Europe,” said Maurizio Fistariol, with the center-left La Margherita. See Frank M. Pizzorusso, “Will Italy Set Up a DNA Databank?” i-Italy Magazine, September 24, 2007, http://www.i-italy.org/305/will-italy-set-dna-databank (accessed April 22, 2010).
34. Rosaria Amato, “Rapporto Eurispes 2007: Italia—Giustizia al collasso” [Italy—Justice to collapse], Wallstreetrack, http://wallstreetrack.wordpress.com/2007/02/01/rapporto-delleurispes-2007-italia-giustizia-al-collasso/ (accessed April 22, 2010).
35. Qualitative and quantitative research on the two Italian leading dailies, Corriere della Sera and La Repubblica, by Marina Semiglia for her thesis for the master’s degree in scientific communication at the Scuola Internazionale Superiori di Studi Avanzati (SISSA), “DNA in Mass Media,” Trieste, February 2009. This unpublished thesis was based on the articles that appeared in 2006–2007 in which the word “DNA” is used in the forensic sphere. The reflections on bioethical themes are scanty, while the prevailing idea is that everything based on genetic data is infallible and a decisive factor.
36. As of 1992, Giuseppe Novelli was a consultant for Home Affairs, Scientific Section, and was also a member of the Bio-security Commission for the President and of the National Commission for Genetic Tests for the Ministry of Health. Telephone conversation with Gianna Milano, February 2, 2009.
37. Andrea Monti, personal correspondence with Gianna Milano, February 2, 2009.
38. European Digital Rights International (EDRI), “Italian DNA Database: The Devil Is in the Details,” August 26, 2009, http://www.edri.org/edri-gram/number7.16/dna-database-italy (accessed April 22, 2010).
14. Privacy and Genetic Surveillance
1. Osborn v. United States, 385 U.S. 343 (December 12, 1966).
2. Statement of Senator Edward Kennedy in support of the Genetic Information and Nondiscrimination Act, Congressional Record—Senate 153, no. 12 (January 22, 2007): S847.
3. Anita L. Allen, “Genetic Privacy: Emerging Concepts and Values,” in Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, ed. Mark A. Rothstein (New Haven, CT: Yale University Press, 1997), 39.
4. Samuel Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4, no. 5 (1890): 193, http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html (accessed May 23, 2010).
5. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court ruled that the Bill of Rights entails a broad right to privacy that prohibits states from criminalizing an individual’s decision to use contraception.
6. Human Genetics Commission, Nothing to Hide, Nothing to Fear? Balancing Individual Rights and the Public Interest in the Governance and Use of the National DNA Database (London: Human Genetics Commission, November 2009), 45.
7. Centers for Disease Control and Prevention, “Genetic Testing,” http://www.cdc.gov/genomics/gtesting/ (accessed April 23, 2010).
8. George J. Annas, “Genetic Privacy,” in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, MA: MIT Press, 2004), 136.
9. P. R. Billings, M. A. Kohn, M. de Cuevas, J. Beckwith, J. S. Alper, and M. R. Natowicz, “Discrimination as a Consequence of Genetic Testing,” American Journal of Human Genetics 50 (March 1992): 476–482.
10. U.S. Equal Employment Opportunity Commission, “EEOC Settles ADA Suit Against BNSF for Genetic Bias,” April 18, 2001, http://www.eeoc.gov/eeoc/newsroom/release/archive/4-18-01.html (accessed May 23, 2010).
11. Declaration of Aakash Desai in support of motion for preliminary injunction in Haskell v. Brown, 677 F. Supp. 2d 1187 (N.D. Cal. 2009).
12. J. L. Mnookin, “Fingerprint Evidence in an Age of DNA Profiling,” Brooklyn Law Review 67 (2001): 13–70, http://papers.ssrn.com/abstract=292087 (accessed April 24, 2010).
13. William Moschella, assistant attorney general, letter to the Honorable Orrin Hatch, April 28, 2004, Congressional Record—Senate 151, no. 162 (December 16, 2005): S13749–S13766, http://www.gpo.gov/fdsys/pkg/CREC-2005-12-16/html/CREC-2005-12-16-pt1-PgS13749.htm (accessed April 24, 2010).
14. Statement of Senator Jon Kyl, Congressional Record—Senate 151, no. 162 (December 16, 2005): S13756–S13759, http://0-www.gpo.gov.library.colby.edu/fdsys/pkg/CREC-2005-12-16/pdf/CREC-2005-12-16-pt1-PgS13749.pdf (accessed April 24, 2010).
15. See John D. H. Stead, Jérôme Buard, John A. Todd, and Alec J. Jeffreys, “Influence of Allele Lineage on the Role of the Insulin Minisatellite in Susceptibility to Type 1 Diabetes,” Human Molecular Genetics 9, no. 20 (2000): 2929–2935. See also D. Concar, “Fingerprint Fear,” New Scientist (May 2, 2001), http://www.newscientist.com/article/dn694-fingerprint-fear.html (accessed April 24, 2010).
16. Jean McEwen, “DNA Sampling and Banking: Practices and Procedures in the United States,” in Human DNA: Law and Policy: International and Comparative Perspectives, ed. Bartha Maria Knoppers (The Hague: Kluwer Law International, 1997), 410.
17. Mark Rothstein and Sandra Carnahan, “Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Databanks,” Brooklyn Law Review 67 (2001): 127–168, quotation at 156.
18. Randall S. March and Bruce Budowle, “Are Developments in Forensic Applications of DNA Technology Consi
stent with Privacy Protections?” in Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, ed. Mark A. Rothstein (New Haven, CT: Yale University Press, 1997), 226.
19. D. H. Kaye, “Behavioral Genetics Research and Criminal DNA Databases,” Law and Contemporary Problems 69 (Winter/Spring 2006): 259–299, information at 273.
20. B. Steinhardt, “Privacy and Forensic DNA Data Banks,” in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, MA: MIT Press, 2004), 173–196. See also Kaye, “Behavioral Genetics Research and Criminal DNA Databases,” 273.
21. Davina Dana Bressler, “Criminal DNA Databank Statutes and Medical Research,” Jurimetrics 43 (Fall 2002): 51–67, quotation at 66.
22. Ibid.
23. Kaye, “Behavioral Genetics Research and Criminal DNA Databases,” 282.
24. 42 U.S.C. 14132(b).
25. Bressler, “Criminal DNA Databank Statutes and Medical Research,” 64.
26. Alabama Code, para. 36-18-31, 2001.
27. Bressler, “Criminal DNA Databank Statutes and Medical Research,” 67.
28. Kaye, “Behavioral Genetics Research and Criminal DNA Databases,” 298.
29. Antony Barnett, “Police DNA Database ‘Is Spiraling Out of Control,’” Observer, July 16, 2006.
30. Kristina Staley, GeneWatch UK, The Police National DNA Database: Balancing Crime Detection, Human Rights and Privacy (London: GeneWatch UK, January 2005), 46.
31. GeneWatch UK, “Using the Police National DNA Database—Under Adequate Control?” July 2006, http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/research_brief_fin.doc (accessed January 10, 2010).
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