Genetic surveillance for all?

The law, lawyers, and the court.
March 17 2009 4:52 PM

Genetic Surveillance for All

What if the FBI put the family of everyone who has ever been convicted or arrested into a giant DNA database?

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The standard answer to the racial bias charge is this: Expand the database to include everyone. Some progressive scholars, such as Akhil Amar of Yale Law School, have argued that a universal database, such as the one created in Iceland, "would be a godsend to innocent convicts." For this reason, Amar has argued, U.S. citizens should be compelled to donate their DNA to a universal database, as long as there are strict privacy controls. He would limit "testing to so-called junk DNA—parts of the DNA code that identify individuals without revealing other medicals facts" and "allowing the government to search the database only for important needs, as certified by a special DNA court."

This seems utopian. As Mercer notes, "the problem is that the FBI keeps the original sample, and that firewall that the FBI said exists between the genetic sample and the edited profile is being breached through familial searching. Now that they're willing to go back to the original samples for YSTR testing, to determine familial relationships, how long will it be before they say: let's test those snips to see if someone is a sociopath?"


Moreover, it's hard to imagine a scenario in which Congress would limit the searching of the DNA database only to serious crimes. Lawmakers refused to impose a similar limitation on foreign surveillance searches during debates over the  Patriot Act, succumbing to the bipartisan arguments that those who have nothing to hide should have nothing to fear.

Nor does the Obama administration seem likely to encourage courts to impose the kinds of complicated and nuanced controls on information sharing that a universal database would require. Last month, the administration disappointed privacy advocates by arguing before the Supreme Court that there is no constitutional right for convicts to obtain DNA evidence that might exonerate them.

Neither the United States nor the United Kingdom have any models for the kind of comprehensive privacy regulations that would prevent the government from sharing DNA profiles in law enforcement databases with insurance companies, employers, schools, and the private sector. For this reason, while a perfectly regulated universal database may be conceivable in theory, it's nearly impossible to imagine in practice. And a universal database that can be consulted for any crime, serious or trivial, is one that many citizens would resist. It opens us to a world in which, based on the seemingly infallible evidence of DNA, people can be framed or tracked, by their enemies or by the government, in ways that liberal societies have traditionally found unacceptable.

What stands between us and this unsettling future are decisions by conscientious public officials, such as Tom Callaghan's efforts to prevent the FBI from surreptitiously expanding its database to include familial searches without congressional authorization. Thanks to Callaghan's determination to abide by the law rather than push the envelope, national familial searches are on hold for now. But they may soon become reality as states implement them on their own. There are relentless pressures—well-intentioned but shortsighted—to expand DNA databases without meaningful regulations or controls. And as California's decision to adopt familial searches shows, all the political incentives are on the side of expansion rather than regulation. It's unfortunate, in any event, that scenarios previously limited to movies like Minority Report are unfolding quietly, before most of us have thought about the consequences.

Jeffrey Rosen is a law professor at George Washington University, the legal affairs editor of the New Republic, and heads the Brookings Project on Technology and the Constitution.