Privacy Advocates Take Another Shot at DNA Database

SAN FRANCISCO (CN) – The state of California shouldn’t analyze and retain DNA from people who were arrested but never convicted of a felony, privacy advocates claim in court.

Two social justice groups, the Center for Genetics and Society and the Equal Justice Society, and CGS consultant Pete Shanks, say the state’s policy of keeping a DNA database populated with genetic information from hundreds of thousands of people violates California’s constitutional privacy protections.

The lawsuit bears some similarities to a case dismissed in federal court this year in which Elizabeth Haskell, arrested at a protest, challenged a California voter-passed law that allowed police to take DNA swabs from people arrested for a felony. In April, U.S. District Judge Charles Breyer found in favor of the state. He relied heavily on Maryland v.King, in which the state required the collection of DNA from those charged with “serious crimes.” In King, the U.S. Supreme Court found Maryland’s cheek swab requirement amounts to a “reasonable” search under the Fourth Amendment.

With that, Haskell’s case, which had already been appealed once to the Ninth Circuit, was dead.

But privacy groups have taken another swipe at the law, this time in state court.

“The California constitution is more protective of personal privacy than the federal constitution,” lead attorney Michael Risher said in a phone interview Monday.

Risher, who worked on the Haskell case along with the ACLU said they saw an opening with People v. Buza, which the state’s high court decided in June.

In Buza, the California Supreme Court wouldn't toss an arsonist’s misdemeanor conviction for refusing to give a DNA sample after his arrest – but they also declined to give an opinion on the constitutionality of state-mandated DNA collection.

“While King was more restrictive and protective of privacy, the language of King was very broad and the court in Haskell held that meant our lawsuit was doomed as framed,” Risher said. But in Buza,according to Risher, “The California Supreme Court was very clear they weren’t holding that the law could be applied to people in other situations, for example, the thousands of people arrested every year but their cases are never referred to the District Attorney for charging.”

He added, “We filed our suit in state court because the California Supreme Court has suggested our suit may have merit under the state constitution. We did it now because in the wake of Maryland v. King and People v. Buza, this is a remaining problem the court has not addressed.”

Attorney Jamie Lee Williams with the Electronic Frontier Foundation, who also represents the plaintiffs, agreed that this case is different. “Here,we’re challenging the state’s continued analysis and retention of DNA samples and profiles from people who were arrested but never charged, whose charges were dropped, who were acquitted, whose convictions were overturned on appeal or habeas corpus, or who were found by a court to be factually innocent of the offense for which they were arrested,” she said in an email.

While people can petition to have their DNA expunged from the system, very few do so. The 24-page lawsuit notes that of the 750,000 people who have been arrested but not convicted of a crime, only 1,510 have requested removal of their DNA from the database. And the California Department of Justice has granted only 1,282 of those requests so far.

“The state has no legitimate interest in ‘keeping’ the DNA from these people,” Williams said. “In this lawsuit, we are challenging the ‘continued retention’ of DNA samples and profiles from those who are not ultimately convicted of any felony. The continued retention and analysis of this DNA violates the right to privacy and the right against unreasonable searches and seizures afforded by the California Constitution.”

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