Tweet
State and federal officials are aggressively expanding their DNA databases. The Fourth Amendment and its requirement that a search be supported by a warrant, issued by a judge and based on probable cause is as quaint an eighteenth century notion as four-posters and quill pens.
The Sunday New York Times article cited above is by Solomon Moore. He perpetuates two dangerous myths, both buttressed by quotes from local prosecutors. He ends with one of them, the biggest fallacy, spoken by Alameda County District Attorney, Rock Harmon:
“If you haven’t done anything wrong, you have nothing to fear,” he said.
Children, do not follow that man into the van! The second quote is from Denver District Attorney Mitch Morrissey, who advocates for greatly expanded DNA collection because it, "saves women’s lives" [in rape investigations]. Sure, DNA can save lives. Misused, it can also stop you getting life or medical insurance or a job, events likely to happen more often. The issue is how it’s collected, managed and used. That applies to how it’s done for police or national security purposes — increasingly merged concepts. And it applies to how it leaks into the private sector and is used there. (Especially after George Bush’s rampant outsourcing of key government functions.)
Denver District Attorney Morrissey’s reliance on DNA to solve rape cases may be missing the forest for a valuable tree. He is blatantly misleading when he claims that the UK, which he uses as a model for his argument, "has fewer privacy protections than the United States and has been taking DNA upon arrest for years". (For three years, actually. A synopsis of the legislation is here.)
True, there are gaping loopholes for law enforcement and national security purposes. But the UK has an extensive regime of data protection and a credible regulator, the Information Commissioner, in charge of enforcing them. It is also a part of the European Union, home to both the European Court of Human Rights and the European Court of Justice, whose opinions are binding in the UK.
The ECHR recently came down with a judgment (which the Times’ Moore cites) that declared the collection of DNA evidence in two cases was wrongful and a violation of applicable human rights laws. One case involved a juvenile acquitted of attempted robbery, and the other an adult, against whom charges of harassment had been dropped. In both cases, the individuals were seeking to have their DNA removed from the government database. They won, though how the UK will put that decision into practice remains pending. (A synopsis of the case is here.) The pertinent paragraph is here (emph. mine):
the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State [the UK] has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.
In the US, we can’t even get the wrong "Edward Kennedy" removed from the No Fly list. Nor do we have a Human Rights Convention. We have the Bush-denuded Bill of Rights, whose enforcement is in the hands of Justices Scalia, Alito, Roberts and Thomas and their brethren. I can’t imagine that language coming from Justice Alito’s word processor. The Senate’s Rump Republicans have promised to filibuster Supreme Court nominees not in their image.
The Times’ Solomon Moore is correct in seeing the UK as the model the US seeks to emulate. UK authorities will eventually have the DNA of the entire population. For starters, under legislation passed in 2006, every person arrested, regardless of whether charged or not, guilty or not, automatically has a DNA swab taken as routinely as fingerprints. Even if the arrest is a mistake. Surreptitious collection of DNA samples is allowed – for national security purposes and for the detection and prevention of crime, whether major or the most minor offense.
Like District Attorney Morrissey, UK police base some of their campaign for DNA on everyone on heart-grabbing exceptions. They recently argued to expand DNA collection "for the children". Except that it is not for investigators to use in child abduction cases (it is that). They want it to use with primary school children, who
exhibit behaviour indicating they may become criminals in later life, according to Britain’s most senior police forensics expert.
Would the Beatles have escaped the pre-crime net long enough to become musicians, I wonder.
The UK is famous for its millions of working CCTV cameras, from motorways to train stations, to banks, to street corners, to airports and cross walks. A development made easier by the millions of Chinese-made cameras that masquerade as small, everyday things. On the flip side, the UK police stopped two tourists from Vienna and confiscated their photographs of Vauxhall bus station before letting them go home. (How did authorities know about them, I wonder.) Under the Counter Terrorism Act, taking photographs of transportation facilities is verboten.
It’s also illegal to take pictures of policemen, intelligence officers or member of the armed forces, if they are, "likely to be useful to a person committing or preparing an act of terrorism". It’s a wonder that arrests weren’t made of those taking pictures of police brutality during London’s G20 meeting. At least one man died of injuries allegedly sustained as a result of illegal police action, which came to police and public attention through a passerby taking video pictures.
We’ve copied such things, too. The RNC’s convention in St. Paul is an example of many of those techniques in use. But the DNA database may be the most worrisome. Europe, unlike the United States, has an elaborate privacy regime. Admittedly, it has gaping holes for law enforcement and national security purposes. But it prohibits businesses from obtaining, storing, and using data without consent, which is valid only for the purposes and time period disclosed.
We have nothing of the kind. After the intensive outsourcing campaign wrought by Mr. Bush in his unceasing efforts to let business drink from the taxpayer well, and given the predictably poor protections for the government and taxpayer in the related contracts, rest assured that the gathering of intelligence on law-abiding private citizens is enormous and virtually unregulated. It’s also highly profitable, ensuring a passel of CongressCritters will protect it.
Consider one potential for misuse. Medical insurance. The developed world outside the US provides medical care for its citizens as a human right. Here, it’s a privilege available only to those in good health and with a good income. Which is like the old voting laws that restricted voting to men with substantial property. No one else was considered responsible enough to have a voice in their government. Now, it’s about maintaining insurance company power and profit.
Even those who have insurance struggle to obtain medical care, such as injured private contractors returning from Iraq. AIG, the insurance provider, is leaving them high and dry in order to claim millions in profits. Welcome to America, time to wake up.
7 Comments
This was covered two days ago, but bears repeating. According to the LA Times, ABC News, and ProPublica:
That’s a gross profit margin of 40% — on a government-paid medical insurance program, while our neighbors go without medical care after serving in a war zone.
Where is the US Government contracting officer responsible for those contracts with private insurers? Asleep at the switch or having sex with a co-worker, as was done by Bush-era Interior Dept officials? Perhaps a wake-up call from a presidential aide might let them know Mr. Obama doesn’t run his ship the same cooperative, good ol’ boy way as Dubya.
Can we have one, please, Rahm, when you’re through protecting Mr. Bush’s terrorist enablers?
Sex with a co-worker should be punished by death, if one of them is a female, death by stoning.
Hardly. But sex is always a good topic, as opposed to preying mantis-like consequences for one partner or another.
Sex in lieu of work is punishable by reprimand and ultimately dismissal. Sexual favors exchanged between government regulators and representatives of those they regulate, on the other hand, is a conflict of interest that prevents the people’s business from being done. It merits more severe penalties beyond dismissal.
But that’s not the topic of this note, which is the overreach of government’s largely unregulated collection of DNA, over which Congress exercises no oversight.
NO, not for one partner or another must there be death! It must be both. Only if there is a female should she be executed by death by stoning.
If it’s two men doing this thing, they shall have ropes tied around their necks and they shall be lifted, by cranes, off the ground to strangle.
This is what a government’s duty is, earlofhuntington, and it is vital to mention it here.
You may think to overlook this, but the Iranian government will not.
An odd sense of humor and priorities you express in that comment. It’s not on point, and it’s not related to Ms. Saberi’s case, which involves rather different politics. Keep looking for more accurate comparisons or metaphors, but by all means, keep telling us what you really think. Don’t hold back.
“we can’t even get the wrong “Edward Kennedy” removed from the No Fly list”
This point is, for me, the gist of the problem. I have a ridiculously common name and am on said No Fly list myself. Yet a small variation in how I book tickets completely circumvents it. Why? The problem is not the data–whether names or DNA. The problem is the morons who get the data.
Scientists know that data does not lie simply because it does not say anything at all. There is no magic fact that automatically settles any reasonably complex question (like guilt or innocence, cancer or shadow on the X-ray, guy pointing a gun or girl with a hairdryer). You need a person to interpret data, come up with a hypothesis, and then confirm or disprove said hypothesis with more examination of the data. Truth resides in the analysis, not the facts themselves, and, in the absence of thoughtful analysis, more data cannot produce more or better truth.
The person that analyzes data is thus the key. If he is dilgent, intelligent, and principled, he stands a good chance of revealing interesting truths. If he is a moron or has an agenda, then he is just babbling or telling wilfull lies. The honest and the smart thuss put a lot of thought into what data they collect and into how they collect it. Proper collection and a reasonable dataset are crucial to a correct interpretation, an interpretation that gets consistent repeatable results. The stupid and criminal just want to collect as much as they can get, because with enough data, you make anything look like it is true.
In the justice system, we think of the “technicalities” as protections for individual rights or as ways for the guilty to escape. We forget that magistrates, warrants, and rules of evidence maximize the quality of the data we use when enforcing the laws. This has the desirable side effect of protecting the rights of the innocent. But it is too often overlooked that it also increases the probability that the guilty will be convicted. Magistrates and warrants insure that a police hypothesis is reasonable enough to justify putting more work into a given line of thought (at the expense of others, such as alternate suspects). Rules of evidence maximize relevant facts and minimizing hearsay, irrelevant details, coincidences, and the like, so that jurors aren’t confused and trials proceed quickly to supportable verdicts.
The mere ability to collect data in large quantities from many sources has, I think, caused much of the country to forget that good investigators can get a lot from little data, but that no amount of data can make up for poor investigators. Collecting DNA from everyone, tapping everyone’s phones, putting us all under video surveillance can’t make us safer. At best, it spreads the efforts of good analysts more thinly across larger, less cohesive, potentially more misleading data sets. At worst, it creates an illusion of competence and honesty.
You make an excellent point. The EU data regime, for example, mandates that member states provide an opportunity for citizens to see the data a data holder has on them and to correct inaccuracies. The ability to do that with governments is more strained, but as the ECHR case I cited to points out, states have an obligation in certain circumstances to correct inaccurate data or delete data wrongfully collected or wrongfully retained.
The US went out of its way to avoid implementing anything like the privacy regimes adopted in Europe, Canada, Japan, Australia, etc. In effect, Congress and the executive declared a virtually “open season” on data collection and use. Restrictions are piecemeal, by statute and jurisdiction, which limits their protections enormously. It also gives states and corporations, with their ready access to more resources, a big leg up.
You’re right, DNA collection is a large piece in a big puzzle the US Government would rather we not piece together. Like a bank, it wants all the rules drawn in its favor and wants to give as few rights (meaning their obligations) back as possible. Louder voices might help correct that errant course.