Buzz Scherr, Genetic Privacy and Police Practices
Comment by: Paul Frisch
Workshop draft abstract:
Genetic privacy and police practices have come to the fore in the criminal justice system. Case law and stories in the media document that police are surreptitiously harvesting the out-of-body DNA of putative suspects. Some sources even indicate that surreptitious data banking may also be in its infancy. Surreptitious harvesting of out-of-body DNA by the police is currently unregulated by the Fourth Amendment. The few courts that have addressed the issue find that the police are free to harvest DNA abandoned by a putative suspect in a public place. Little in the nascent surreptitious harvesting case law suggests that surreptitious data banking would be regulated either under current judicial conceptions of the Fourth Amendment.
The surreptitious harvesting courts have misapplied the Katz reasonable-expectation-of-privacy test recently reaffirmed in U.S. v. Jones by the Supreme Court. They have taken a mistakenly narrow property-based approach to their analyses. Given the potential for future abuse of the freedom to collect anyone’s out-of-body DNA without even a hunch, this article proposes that the police do not need a search warrant or probable cause to seize an abandoned item in or on which cells and DNA exist. But, they do need a search warrant supported by probable cause to enter the cell and harvest the DNA.
An interdisciplinary perspective on the physical, informational and dignitary dimensions of genetic privacy suggests that an expectation of privacy exists in the kaleidoscope of identity that is in out-of-body DNA. Using linguistic theory on the use of metaphors, the article also examines the use of DNA metaphors in popular culture as a reference point to explain a number of features of core identity in contrast to the superficiality of fingerprint metaphors. Popular culture’s frequent uses of DNA as a reference point reverberate in a way that suggests that society does recognize as reasonable an expectation of privacy in DNA.