Lawsuit tries to put an end to collecting people's DNA who haven't been convicted of a crime.
The federal government and more than half the states have laws allowing them to collect a person’s DNA and store it in a database without there being a criminal conviction.
On Wednesday, all 11 judges of the U.S. Court of Appeals for the Ninth Circuit sat “en banc” to hear arguments―brought by the Northern California ACLU with pro bono assistance from Paul, Hastings, Janofsky & Walker LLP―that California’s Proposition 69, passed in 2004 with strong voter support, violated the Fourth Amendment and was an unconstitutional search and seizure.
The 2004 law required that DNA be collected from anyone arrested on suspicion of committing a felony and from some convicted of certain misdemeanors. No charges need to be filed. No conviction needs to be obtained. Arrestees who are not subsequently charged can request their DNA samples be expunged filling out a two-page request form.
Lily Haskell, one of the people challenging the law, was arrested at an anti-war demonstration. She was released without any charges being filed, but was compelled to give a DNA sample while in custody.
The law took effect in January 2009. The ACLU filed a request for a preliminary injunction in October 2009, but a couple months later lost Haskell v. Brown in U.S District Court. (The case has since been renamed Haskell v. Harris.) The ACLU got class action certification for its lawsuit, beat back the government’s attempt to have the case tossed and proceeded to lose a split decision in February 2012 before a three-judge panel of the U.S. Ninth Circuit Court of Appeals.
The ACLU appealed the panel’s decision to the appellate court’s full complement of 11 judges and received a hearing on Wednesday.
http://www.allgov.com/news/controversies/lawsuit-tries-to-keep-uncharged-and-unconvicted-arrestees-out-of-dna-database-120924?news=845394&goback=.gde_1829117_member_168854326
New research on "Junk" DNA raises questions on eve of crucial Court hearing.
On September 19, the Ninth Circuit is set to hear new arguments in Haskell v. Harris, a case challenging California’s warrantless DNA collection program. Today EFF asked the court to consider ground-breaking new research that confirms for the first time that over 80% of our DNA that was once thought to have no function, actually plays a critical role in controlling how our cells, tissue and organs behave.
This research comes out of a gigantic nine-year, federally-sponsored, world-wide project called ENCODE (Encyclopedia Of DNA Elements), which was designed to learn more about “junk” DNA. These research findings should have broad ramifications for federal and state DNA collection programs.
The government has argued in case after case (pdf) challenging DNA collection that the 13+ genetic markers that make up a person’s DNA profile1 are, in effect, “junk” and provide no more information than a person’s fingerprint. However, the ENCODE research reinforces the points we’ve made multiple times before—that DNA—whether it is in the form of a full genetic sample or an extracted profile—can reveal an extraordinary amount of private information about you, including familial relationships, medical history, predisposition for disease, and possibly even behavioral tendencies and sexual orientation (pdf, p. 96).
EFF has filed briefs in Haskell and several other cases challenging DNA collection from arrestees, arguing this kind of warrantless seizure and search violates the Fourth Amendment. The U.S. Supreme Court has held that, subject to only a few exceptions that don’t apply here, warrantless searches “are per se unreasonable under the Fourth Amendment.” (p. 338) The Fourth Amendment is designed to protect against laws that give “police officers unbridled discretion to rummage at will among a person’s private effects,” because searches that aren’t tied to finding evidence of the crime at issue “create[] a serious and recurring threat to the privacy interest of countless individuals.” (p. 345) It doesn’t matter if there is a possibility that the search will reveal something incriminating or useful in solving past or future crimes, the cops still can’t search through our private things without a warrant. (p. 344.)
These concerns apply with equal force to government DNA collection programs, which allow the government to obtain sensitive and private information on a person without showing that the data collected is tied to a specific crime. Thanks to changes in the laws to allow DNA collection from arrestees, federal and state DNA databanks have expanded exponentially over the last several years. The FBI’s federal CODIS DNA database now contains over 11.4 million DNA profiles, and nearly 2 million of those came from California.
https://www.eff.org/deeplinks/2012/09/new-research-on-junk-dna-raises-questions
FBI eager to embrace mobile 'Rapid DNA' testing.
New breed of biometrics equipment already in use with government intelligence in secretive agencies.
It's been the FBI's dream for years -- to do near-instant DNA analysis using mobile equipment in the field -- and now "Rapid DNA" gear is finally here.
The idea is that you simply drop into the system a cotton swab with a person's saliva, for example, and the "Rapid DNA" machine spits out the type of DNA data that's needed to pin down identity. Now that such equipment exists, the FBI is pushing to get it into the hands of law enforcement agencies as soon as possible. [Also see: "FBI building system that blows away fingerprinting"]
"DNA has emerged as the gold standard in forensics analysis," Steven Martinez, executive assistant director of the science and technology branch at the FBI, said in his keynote address to attendees of the Biometric Consortium Conference in Tampa on Tuesday.
Though the genetic information contained in an individual's DNA, which is in all human cells, has been used since the late 1980s to solve crime cases, analysis of DNA has remained frustratingly slow because DNA had to be sent to special labs to be analyzed. New "Rapid DNA" devices are now ready to be evaluated and the FBI has received two basic types.
One is called the RapidHIT, which is made by IntegenX, a Pleasanton, Calif.-based company whose CEO Stevan Jovanovich was in the exhibit hall to explain how the Rapid DNA device can spit out an individual's DNA data within 90 minutes.
Another company, NetBio, is also believed to have delivered its Rapid DNA-type equipment to the FBI, Jovanovich says, and the National Institute of Standards and Technology (NIST) is expected to play an important role in helping certify systems and processes for how these boxes will be used by the FBI and local police stations to collect DNA data on suspects.
Jovanovich notes that the networked IntegenX RapidHIT box, which is based on a hardened version of Windows and measures about 27-by-24-by-16 inches, costs about $245,000. RapidHIT boxes are already in use with intelligence agencies, says Jovanovich, who adds he's not at liberty to say which ones or what they're doing with them.
The FBI, which is believed to have upwards of 10 million DNA records on individuals already stored in databases, anticipates a significant expansion of DNA collection by means of Rapid DNA equipment.
The FBI has been known for pioneering a massive collection of fingerprint images and an online matching system that can be accessed remotely to help local law enforcement, as well as the Department of Defense and other law-enforcement agencies, nail down the identities of criminals and terrorists. Today, Dr. Alice Isenberg, chief of the biometrics analysis section at the FBI laboratory, explained in her presentation how the FBI hopes to expand the national DNA database used to investigate crime for DNA matches online as well.
http://www.networkworld.com/news/2012/091812-rapid-dna-262569.html?hpg1=bn