Last week, Julia Preston of the New York Times revealed that the Justice Department is drafting new rules to collect DNA samples from anyone who is arrested by federal authorities under suspicion of having committed a felony, or non-citizens detained by any federal agency. This will affect hundreds of thousands of undocumented immigrants detained by federal agents, and could also have a significant impact on political activism because it could potentially discourage acts of civil disobedience. In times of war, when dissent and political discourse are vital to the well-being of country, this is a steep price to pay.
The new rules are authorized under an amendment to the Violence Against Women Act introduced by Sen. Jon Kyl (R-Ariz.) in January 2006. The amendment gives power to the attorney general to “collect DNA samples from individuals who are arrested or from non-United States persons who are detained.” Preston cites Justice Department officials saying that the goal of the new regulations is “to make the practice of DNA sampling as routine as fingerprinting for anyone detained by federal agents.”
It is difficult to say exactly what will be the impact of the new law upon privacy rights without evaluating the rules developed by the Justice Department. There is no question, however, that the extremely sensitive and private nature of DNA evidence will require strong rules to protect these individual interests. According to the Human Genome Project, “DNA can provide insights into many intimate aspects of a person and their families including susceptibility to particular diseases, legitimacy of birth, and perhaps predispositions to certain behaviors and sexual orientation.”
Since DNA reveals private information about an individual’s health and other traits, the potential for abuse by the government exists. Although current law limits disclosure of an individual’s DNA “fingerprint” to law enforcement for identification purposes, in judicial proceedings, and to the defendant facing criminal charges, there is no specific provision in the statute for ensuring protection from misuse. This increases the potential for genetic discrimination by government, insurers, employers, schools, and banks or could be abused by, for instance, the medical and pharmaceutical companies which could have significant interest in the information.
Clear rules are also important because the federal courts are still trying to determine whether compelled DNA extraction violates an individuals’ Fourth Amendment right to be free from unreasonable searches and seizures. In United States v. Kincade, the 9th Circuit concluded that a parolee had a reduced expectation of privacy and that blood extraction is not an intrusive act because “such tests are common place in these days of periodic physical examinations.” The court missed the point that the unreasonable intrusion is not so much from a pinprick than from the information revealed by the DNA, and it held that the parolee had to submit to the test.
Although the final rules have yet to be drafted, undocumented immigrants detained by federal authorities could be forced to submit a biological sample (through blood extraction, for example). Refusal to submit a sample could result in a criminal offense. Immigration attorneys have expressed significant concern about the new rules. Some have also noted that immigrants with proper documentation could be mistakenly detained, raising serious concerns about civil rights violations.
Some political activists could also be negatively affected by this law. For example, the recently-passed Animal Enterprise Terrorism Act severely punishes any economic damage resulting from any action intended to disrupt an “animal enterprise” with prison sentences of up to 10 years. Similarly, some activists could be in danger of falling under the provisions of the act if the act of civil disobedience rises to the level of a felony. Thus, a demonstrator who trespasses a military facility to protest U.S. armed invasions abroad could be charged with criminal trespass. Depending on the circumstance surrounding the case and other factors (such as previous criminal history), the protestor could face significant jail time which would justify the government’s collection of DNA.
DNA evidence is an important tool to help determine the guilt or innocence of an accused or to exonerate those who have been wrongfully convicted. It is also be a useful tool in solving criminal cases. The danger lies in having rules and oversight standards that do not adequately protect the extremely personal and sensitive nature of the information. Unfortunately, the Kyl Amendment does not clearly direct the attorney general to develop strong rules to protect privacy rights and lacks a clear oversight mechanism.
Rather than waiting for the new rules to be drafted, the American people should send this bill back to Congress to ensure our rights are protected.
