Computers, Privacy & the Constitution

“It’s the right thing to do. This is where the national registry becomes so important, because what you have is individual states — they may have a database, but if they’re not sharing it with the state next door, you’ve got a guy from Illinois driving over into Indiana, and they’re not talking to each other.”- President Obama on DNA swabbing upon arrest, March 15, 2010

The FBI, along with over 15 states, have passed laws that will permit law enforcement officials to retrieve an arrested individuals DNA along with their name and fingerprints as a part of the ‘booking’ process. This practice raises many concerns regarding privacy rights and potential violations of the Constitution. While recognizing these concerns, this paper focuses on the effect this law will have on Black and Latino communities.


Proponents of DNA cataloguing view DNA as the fingerprint of the future. They argue that DNA swabbing will improve the ability of law enforcement to keep people safe as police will be able to use the database to check against DNA samples collected at crime scenes. Further, proponents argue that the act of retrieving DNA is not more physically intrusive than fingerprinting as it only entails the use of a cotton swab on the inside of the cheeks. Proponents also argue that the effect of sampling can be to exonerate as well as to convict. Some argue that this should only apply to arrests for certain violent crimes. While these arguments are compelling they fail to analyze the loss of liberty that this will cause Black and Latino communities.


Throughout my life the police have played the dual role of a protector of and a threat to my safety. As a student of Columbia, this reality has persisted. Whether as a 1L performing surveys in New York City public housing or as a 2L increasingly venturing into Harlem and experiencing what amounts to a police state or as 3L being asked my ID at the gym only when there are large numbers of Black or Latino men playing basketball those charged with ensuring my security have been just as likely to violate my liberty, here, as back home. I am not the unusual story, except that, I myself, have never been arrested. (although I have been harassed). In other words, I am fortunate for the level of my exposure to the realities of racial profiling. In fact, of those stopped and frisked in New York last year, 90 % were either Black or Latino. This percentage is an absurdly high number reflecting a police system that, in seeking shortcuts, have targeted particular communities and have disproportionately diminished the liberty of those living there in effort to increase security in the city as whole. Waldron, in his piece Security and Liberty: The Image of Balance, speaks to the uneven costs upon the liberty of a few for the security of all in the context of racial profiling against terrorism. This inequity applies with just as much force here . . .


… except that compiling a DNA database is inherently different than what occurs today. While racial profiling leads to more arrests of Black and Latino men, adding a DNA database to this injustice adds another, distinct layer of concerns. First, DNA is not like fingerprinting or asking for identification. DNA provides more information than someone’s identity, including propensities for disease and psychological issues. (See this story on one of the many ways one DNA sample may be used for more than what an individual agreed that it be used for. Pay particular attention to the scientist’s belief that this was not only OK but good science). It is not looking too far into the crystal ball to see that after amassing a collection of DNA samples, that it might be argued that this information be used for scientific research. Second, using statistical techniques, the DNA of one family member may be used to determine to the DNA of others in the family. In other words, if a relative of yours is arrested and swabbed, using statistical techniques that will, likely, only become more precise, your DNA may be linked to their record. For Black and Latino families their exposure to this risk grows exponentially with each of their relatives being stopped and arrested.

For everybody else, too, so far as I can see.

For Latinos in Arizona dealing with a new immigration law allowing official to stop anyone for no more reason than appearing to be an immigrant the potential accumulation of genetic information is staggering. Further, the accuracy of these results increases with the number of family members arrested again disproportionately affecting Black and Latino families.

Why does this disproportionately affect Black and Latino families? I think I'm missing one step in the logic here.

Finally, this effort would create perverse incentives. For every arrest, police will get more of this valuable information, which will incentivize arrests.

Do we currently experience people's being frequently arrested solely so their fingerprints can be taken? I don't think so, and it seems to me implausible that it will happen over DNA either. I think some basis for the conclusion here would be helpful.

Blacks and Latinos are likely to be the victims of these incentives.


Those who believe that this result is unlikely need only look across the Atlantic. The UK has built a voluminous database of DNA of those merely arrested without a conviction or even a charge being brought. The result; 37% of black males have their DNA recorded while only 10% of white males have their DNA recorded. As in America, Blacks are subjected to higher rates of police contact and are likely to find themselves arrested at a higher rate. Further, the UK has moved aggressively to recover DNA samples for any arrest not involving traffic violations. As here, DNA retrieval upon arrest began with only violent crimes. It is not hard to see that the UK is a model for the direction that President Obama would like to take the country.


I have argued that while there are troubling aspects of DNA sampling for the fundamental character of a democratic society, the effects of this type of program on Black and Latinos will be much greater than on any other group. More importantly, because of the very nature of DNA, the impact will be different, in kind, rather than in degree, of the impact racial profiling currently occurring because it will lead to government access to a large amount of information unrelated to identification.

You repeat that statement in this essay, and in fact it forms a crucial part of your argument, because it's why somehow DNA identification is "worse" than fingerprinting, but I'm not sure I understand it and I think it's based on a technical misunderstanding about what's in these "DNA databases." They don't contain representations of an individual's entire intact genome, that can be read as a book would be read. The information that is used to make these DNA-based IDs is much cruder. Imagine that you took a diamond and hit it with a hammer, then compared the fragments to the fragments you got when you smashed another diamond, to make a statistical judgment about how close to identical the two diamonds were, based on what was left after you smashed them. That's what's in the databases: a few summary numbers about some sequences that showed up often when you put some cellular DNA through the blender (it's not even nuclear DNA, given how much less of that there is, so you don't even have all the genetic material related to the individual, and much of what you do have is mitochondrial DNA, which is another genome altogether, and so forth). This sort of summary information might give you a good guess about whether two samples are from the same person (although there are also substantial uncertainties involved), but it doesn't tell you anywhere near as much about the person or persons as you seem to assume.

Now, at least in theory, for every entry in such an ID database there's a cotton swab somewhere, which might be stored in a way that isn't prejudicial to the long-term preservation of the actual material. It might at some time in the future be possible to take such a swab and get just a simple of the nuclear DNA, and actually amplify that so you could sequence it whole, and actually know what the whole genome of the human being was from which the sample came. But why would any police agency do that with all its samples, at greater or lesser expense, when it wouldn't do them any particular good? Today, under existing conditions, that's not technically feasible and if it were no one could afford it. They could do some specific genetic tests on each sample, but why would they, when each such interaction prejudices the sample's ultimate value as evidence?

So I don't know what the technical facts are on which you rely, or how that reliance affects your argument.

Further, family members with no contact with police may have their identities comprised as a result of the identification of family members as a result of DNA similarities. Finally, this practice will create perverse interests that will likely affect Black and Latinos in greater proportion.

-- BetreGizaw - 03 May 2010

Hi Betre,

Two for two - this essay of yours is also a topic I wrote on recently. It looks like you're still editing and I don't want to bother you with comments in the revision process. I'll watch for when it's marked "ready for review" and comment then. It looks very interesting so far.

-- BrianS - 04 May 2010



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r5 - 17 Jan 2012 - 17:48:13 - IanSullivan
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