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Sara Foss's Thinking It Through
by Sara Foss

Thinking It Through

A Daily Gazette life blog
Her column and blog rolled into one
 

Public debates the DNA issue — and so do I

By Sara Foss
Saturday, October 19, 2013

When the state of New York expanded its DNA database last year, I didn’t give it much thought.

After all, I am not a criminal, so it’s not like my DNA is going to be in the database anytime soon.

And the use of DNA evidence has been, by and large, a good thing. This valuable genetic material provides evidence that solves crimes, but it can also exonerate and overturn wrongful convictions.
I recently watched the 2010 film “Conviction,” which tells the moving and true story of a Massachusetts waitress who became a lawyer to prove her brother’s innocence; thanks to DNA evidence unearthed almost two decades after his murder conviction, she was able to win his freedom. You can’t watch a movie like this and harbor any doubts about the merits of collecting DNA samples.

And yet.

I was a little shocked last week when I read the Gazette’s story about 10 Montgomery County residents arrested for failing to provide court-ordered DNA samples. None of these people were violent criminals. Rather, they were guilty of relatively minor misdemeanors.

My immediate reaction to this news was to complain about government overreach and loss of privacy. It’s one thing to take DNA swabs from murderers and rapists. It’s quite another to take them from someone who stole less than $1,000 worth of goods, or someone who lied on their welfare application. Sure, some of these people might turn out to be violent criminals — as capable of homicide as they are of aggravated unlicensed operation of a motor vehicle. But how many of them? And what are the costs of collecting their DNA and tracking them down if they don’t provide it of their own accord?

Unfortunately, those of us who find the concept of an all-encompassing DNA database more than a little creepy better get used to the idea; in June, the U.S. Supreme Court ruled police can take a DNA swab from anyone they arrest for a serious crime. Writing for the majority, Justice Anthony Kennedy described the practice as “like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

More than 28 states and the federal government already collect DNA after an arrest, which makes New York actually look fairly restrained.

The Supreme Court decision puts me in the unusual position of agreeing with Justice Antonin Scalia, with whom I never agree. In the dissenting position, he described a dystopian future in which “because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason. This will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane — surely the TSA must know the ‘identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school.”

The state’s DNA database was created in 1996. At the time, DNA samples were taken only from people who had committed certain crimes of a violent or sexual nature. But the database’s scope has steadily broadened, and last year, Gov. Andrew Cuomo signed a law permitting law enforcement to collect DNA from anyone convicted of a penal law misdemeanor, with the exception of people convicted of possessing small amounts of marijuana for the first time.

Obviously, the best way to stay out of the DNA database is to not commit a crime. But it’s worth noting the category of penal law misdemeanors encompasses a lot of laws and includes statutes that are fairly obscure or overly broad, such as the law against theft of services that would require anyone found guilty of stealing, say, cable TV services from a neighbor to turn their DNA over to the state database. Or the law against fortune telling, which would force those who falsely claim to have occult powers to turn their DNA over to the state.

After New York expanded its database, Scott Lemieux, an assistant professor of politics at The College of Saint Rose in Albany whose interests include constitutional law, wrote a piece titled “Are police building a massive DNA database?” for the liberal website Alternet. Last week, Lemieux told me he would need to see “really good evidence” that genetic material taken from low-level criminals was yielding results.

“There needs to be a threshold,” he said. “It’s the scope of the program that concerns me.”

Viewed in isolation, the expansion of the DNA database might sound perfectly reasonable, but it didn’t occur in a vacuum. Rather, it occurred at a time when privacy norms are undeniably changing and governments and corporations are collecting more personal data than ever before. And because the definition of privacy is in flux, I sometimes find myself revisiting long-standing positions and changing my mind.

For instance, there was a time when I regarded the ever-increasing number of surveillance cameras in public areas with unease. But these cameras have proven useful. In Schenectady, they’ve been used to solve crimes, generate leads and obtain convictions; in the Boston Marathon bombing case, footage from a Lord & Taylor department store camera provided the first clues as to the identities of the perpetrators.

So I support the use of surveillance cameras, provided there are measures in place to prevent abuses and the cameras are only trained on public areas. But it wasn’t the cameras’ crime-fighting value that convinced me. It was my sister’s freak accident in London several years ago, in which she nearly died when she fell and hit her head. Because there was a surveillance camera in the area, the fall was observed immediately and the British equivalent of 911 quickly contacted.

Perhaps one day I’ll look back at my concern over collecting DNA samples from people convicted of misdemeanors and wonder why I ever had a problem with it. Or perhaps not. But right now I have a lot of questions about how much data collection is too much, how the information is used and whether it’s time to start drawing some lines.

 

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