(CN) - Digital rights advocates say the U.S. Supreme Court has a duty to strike down an unconstitutional Maryland law that authorizes warrantless DNA testing.
The high court granted certiorari in the case, Maryland v. Alonzo Jay King, in July 2012 after the Maryland Court of Appeals found that it had been unconstitutionally applied to arrestees. The court had previously upheld application of the law to convicted felons.
State and local law enforcement authorities had used the law to collect DNA samples from anyone arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary.
King had challenged the law after its application led to his conviction of first-degree rape, for which he had been ordered to serve a life sentence. King had been arrested on assault charges in 2009, and police then matched his DNA to an unsolved 2003 rape.
In an amicus brief filed with the Supreme Court last week, the Electronic Frontier Foundation challenged the idea that Maryland needs DNA to "identify" suspects.
"DNA profiles are not actually used to verify the arrestee's identity because the test cannot be used to verify a person's true identity at the time of arrest," the brief states.
Samples are instead used for "other investigatory purposes - retaining and repeatedly accessing the wealth of personal information disclosed by an individual's genetic material despite lacking individualized suspicion connecting the arrestee to another crime," according to the brief.
Collecting DNA "wholesale" violates the Fourth Amendment, the 49-page brief states.
"Our DNA contains our entire genetic makeup - our most private information about who we are, where we come from and who we will be," according to the brief. "DNA can be used to identify us in the narrow and proper sense of that word - 'who is that?' - but it also tells the world who we are related to, what we look like, and how likely we are to get specific diseases. This court must protect this sensitive genetic material by prohibiting the warrantless collection of DNA from arrestees. ...
"Allowing the wholesale, warrantless seizure of a person's genome eviscerates the concept of particularity; it is in essence a 'general search' of a person's genetic history. It is the equivalent of the government seizing and searching an entire computer, rummaging through all of its data - including data outside of the probable cause justification - to find one specific file."
EFF staff attorney Jennifer Lynch called it a matter of privacy.
"Your DNA is the roadmap to an extraordinary amount of private information about you and your family," Lynch said in a statement. "It contains data on your current health, your potential for disease, and your family background. For government access to personal information this sensitive, the Fourth Amendment requires a warrant."
The foundation says 27 additional states and the U.S. government have laws mandating DNA collection from anyone arrested, even if they have yet to be convicted.
Lee Tien, a senior EFF staff attorney, asked what would happen if the police pick up and arrest someone at a political protest, but the suspect is released and never convicted of a crime.
"Under these laws, your genetic material is held in a law enforcement database, often indefinitely," Tien said in a statement. "This is an unconstitutional search and seizure."
The Supreme Court is scheduled to hear arguments on the case later this month.
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