The Slippery Slope: DNA Dragnets and DNA Samples From All Arrestees

State governments in the U.S. have been debating the merits and deficiencies in collecting DNA samples from every arrestee. Now Florida has jumped into the mix. In order to solve a string of murders where the police have the DNA of the perpetrator but don't the identity of that person, law enforcement officials in Daytona Beach will be asking anyone arrested, from those picked up for drunken disorderly conduct all the way to the most serious of crimes, to voluntarily submit to giving a DNA sample:

Police have a profile of the killer . . . [b]ut they have no suspects.

Here's what they do have: the killer's DNA.

Now, police have launched a DNA sweep, asking everyone arrested - potentially thousands hauled to jail for everything from misdemeanor drunken driving to disorderly conduct - to voluntarily submit their DNA.

It is unusual territory for Florida, which requires DNA samples to be taken only from convicted felons.

This creates a legitimate question about where to draw the line in the sand between valid law enforcement tools to solve crimes and protecting constitutional rights against unreasonable infringement by government.

The Daytona Beach News Journal Editorial Board attempted to get at exactly this tension:

But DNA isn't a solves-all solution. Without proper safeguards, the collection and banking of DNA samples raises serious issues. DNA databases are expensive to administer and technically challenging to maintain. Collecting DNA data can consume police resources that are better spent on more traditional (and successful) methods of investigation and interrogation. And when police attempt to sample DNA across a broad spectrum of the population, they raise serious civil-liberties questions that can't be easily dismissed.

. . .

The samples are purportedly voluntary. But Public Defender Jim Purdy's skepticism at the coercive nature of the plan is well-founded. Many clients already submit to searches of their cars or homes upon arrest -- even though they're not legally required to do so, he notes. A DNA "search" might seem less troublesome -- one quick swab to the inside of the cheek. But the privacy implications are far more compelling. Once a sample is in the database, it's there for good -- and there's no way to predict how DNA samples may be used in the future. As science develops, the potential to misuse personal information, including the intimate data encoded in each individual's DNA, increases.

The concerns with these so-called "DNA Dragnets" are great. Privacy, accuracy, coercion, human error, malicious conduct are all unfavorable characteristics of this new policy. Moreover, it is not clear that taking DNA samples from every guy who urinates on a building during the annual Bike Week or Daytona 500 is going to do very much to solve murders that have perplexed law enforcement officials up to this point.

But why look at a hypothetical situations when you have a real life example of why DNA dragnets are so dangerous:

[In 2003,] the city of Miami was searching for a serial rapist whose DNA links him to assaults on at least six women. As part of the investigation, police have taken more than one-hundred twenty samples from “volunteers” who either resemble the description of the serial rapist or have been the subjects of a tip police received. As part of the search, investigators stopped Jorge Garcia . . . because he resembled the description of the perpetrator. Mr. Garcia voluntarily gave a DNA sample which did not match the profile of the rapist.

But instead of destroying the sample once Mr. Garcia was excluded, the crime lab ran it through the State DNA databank. To Mr. Garcia’s surprise, there was a cold hit – his profile matched that of a profile extracted from evidence collected from the victim of an unrelated 1996 rape. Garcia was arrested and charged with rape. Officials cited it as an example of how DNA databanks help authorities catch rapists. “Had we not had this massive search for this other offender,” according to the executive assistant to the Police Chief, “we wouldn’t have gotten this guy.”

The day after Mr. Garcia’s arrest, the victim of the 1996 rape came forward to proclaim Mr. Garcia’s innocence. She explained that she and Mr. Garcia has been involved in a long-term relationship, and that the crime lab found his DNA because the couple had consensual sex shortly before she was raped by a stranger. Three days after his arrest, the police dismissed the charges against Mr. Garcia and released him from jail.

And that is where it ended for Mr. Garcia. But imagine if it the victim had died as a result of or since the rape, or was otherwise not available to explain how Mr. Garcia's DNA got on her rape kit? Would the charges have led to a conviction or even a death sentence if the victim had died during the rape?

The consequences of convicting an innocence person combined with the wholesale infringement of one's privacy rights by surrendering your personal biological information to the government for any and all purposes, far outweigh the gain to law enforcement.