Big Brother Invades Your Genes

by Walter Olson Jun 4, 2013 7:21 AM EDT

Get ready to swab. Liberals warn that giving cops the power to take your DNA undermines civil liberties. Is a dangerous era of genetic testing upon us? It’s closer than you think.

If there’s ever a time when Antonin Scalia really rises to the occasion, it’s when he serves as the Supreme Court’s liberal conscience.

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That’s not the role that’s ordinarily expected of him, of course, but it’s a role he does play from time to time. And he got to play it again yesterday when the Court ruled in Maryland v. King that police can require arrestees to submit to DNA sampling as part of the booking process, with the results matched to a national database to solve old cases. In a slashing dissent entertainingly written even by Scalia-dissent standards, he joined liberal justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan to accuse his conservative colleagues of flunking Civil Liberties 101. (Justice Stephen Breyer, ordinarily a liberal vote, was meanwhile crossing over to join the conservative majority.)

Yesterday’s case arose after police arrested Alonzo King for threatening several people with a shotgun, and found his DNA matched that from an unsolved 2003 rape. King challenged the constitutionality of Maryland’s 2008 law requiring arrestees to submit to DNA testing.

The rapid advance of DNA matching technology, which can establish a speck of tissue or bodily fluid as belonging to one and only one individual in the world, has opened up a new era in police forensics, with detectives regularly closing old cases and solving newly committed ones. Equally exciting, the tests have cleared many innocent persons by establishing others’ responsibility.

But along with the good comes a new potential, warned against by civil libertarians, for the authorities to use DNA access to track citizens through life. Who was at the closed-door meeting of political dissidents? Swab the discarded drinking cups for traces of saliva, match it to a universal database, and there you’ve got your list of attendees. Want to escape a bad start and begin life over in a different community? Good luck with that once your origins are an open book to officialdom.

In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”)  Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?

With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. ... I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

It’s at this point, however, that things get complicated. What does the Fourth Amendment forbid the royal inspectors—sorry, the cops—to do? Above all, the dissent argues, it historically forbids searches primarily aimed at finding evidence of crime where there’s no probable cause that such evidence will be found.

But the Fourth Amendment by its actual text bans only “unreasonable” searches, a standard that seems to invite courts to adjust their expectations to changing times, technologies, and mores. The Supreme Court has repeatedly done just that, frequently pronouncing searches reasonable when they are meant to accomplish aims other than gathering evidence of unrelated crime. Booking searches of arrestees get their own special, and police-friendly, set of rules. Although the Court has not heard a challenge to fingerprinting of arrestees since the modern era in search-and-seizure law began, it seems unlikely it would strike the practice down. And Kennedy points out that compared with fingerprinting (or mandatory drug testing, another widespread privacy invasion) DNA swabs are obtained through a relatively quick and unintrusive procedure.

How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?

Which leaves it as a pretty close case, really. As part of his theme of embracing reasonableness, Kennedy’s opinion for the majority not only stresses the huge crime-solving benefits of the new technology, but includes soothing words about how the Court will resist the slippery slope toward more and more searching: it won’t necessarily uphold testing of those arrested for merely minor offenses, for example. Kennedy also noted that the Maryland law provides for throwing away DNA samples taken in arrests that do not result in conviction.

For my part, I won’t be surprised if the new decision fuels new rounds of legislation mandating unprecedented levels of personal search and data collection. Maybe we won’t actually reach the point of cavity searches for people who want to buy Sudafed. (Maybe.) But it seems if we're to dodge some prospects like that we may need to count on the future vigilance of the Court.