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Digital Rights Gives Warning on DNA Law

(CN) - Civil liberties advocates warned the 9th Circuit this week that California's broad warrantless DNA-collection law could lead to more false arrests, especially in the black community.

The federal appeals court is set to hear oral arguments this December for the third time in the case of Haskell v. Harris. It concerns the constitutionality of a California law that allows police officers to collect a DNA sample from anyone arrested for a felony and to keep such samples indefinitely. The 9th Circuit agreed to reconsider the issue after the U.S. Supreme Court approved a similar law this year in Maryland v. King .

Elizabeth Haskell, who was arrested in 2009 at a peace rally for allegedly obstructing an officer, is challenging the law passed in 2004 as Proposition 69. She claims that police threatened to charge her with a separate misdemeanor when she refused to allow them to swab her. An three-judge appellate panel upheld the law last year, and an 11-judge en banc panel of the 9th Circuit reheard the case in September 2012. That panel had yet to issue its ruling when the high court decided the Maryland case and Chief Judge Alex Kozinski called for a second round before the en banc court.

In a friend-of-the-court brief Monday, the San Francisco-based Electronic Frontier Foundation (EFF) argued that, in the face of rapidly developing DNA-collection technology, privacy concerns should outweigh others.

"A DNA sample - taken from a simple cheek swab - contains a person's entire genetic makeup," EFF attorney Jennifer Lynch wrote. "This is private and intensely personal information that can reveal where our ancestors came from, who we are related to, whether we are likely to suffer from genetically-determined diseases, and possibly even our behavioral tendencies and sexual orientation."

Moreover, a person's DNA can be used to build a profile of their family relationships, which the California law allows.

Such searches are also more likely to harm black citizens who are disproportionately represented in the nation's criminal DNA databases, the EFF said.

"If familial searching were conducted on a mass scale, as many as 17 percent of U.S. African Americans could be identified through the DNA profiles already in CODIS (versus only 4 percent of U.S. Caucasians)," Lynch wrote, referring to the Combined DNA Index System. (Parentheses in original.)

Noting that "sloppy policing and systemic DNA lab problems" have led to false identifications in the past, the EFF says it is also in the public's interest to keep fewer DNA profiles on file.

"In San Jose, Lukis Anderson spent five months in jail after a database search linked his DNA to DNA found on the fingernails of a murder victim - even though Anderson had been hospitalized when the murder occurred," Lynch wrote. "In Sacramento, Shawn Ponce was falsely arrested based on his DNA and jailed for five days for two crimes he could not have committed. In England, David Butler spent eight months in jail after a database search falsely matched his DNA to that found on a murder victim - despite evidence establishing his innocence. Another British citizen was falsely accused of murdering a woman in Italy based solely on DNA. These concrete harms can only occur when innocent persons' DNA is collected and retained."

Even with one of the largest DNA databases in the world, California "is anomalous in the relatively low number of investigations aided," Lynch noted, citing a 2010 RAND Corp. study.

The brief also imagines a fast-approaching future when, thanks to new "Rapid DNA" technology, police officers will take DNA samples "during street-level stops."

"Without hard limits on DNA collection, these tools could easily be used with little or no real suspicion of criminal activity," Lynch wrote.

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