“A World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment

by James W. Hazel & Christopher Slobogin

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Abstract

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment “search” does not occur unless police infringe “expectations of privacy society is prepared to recognize as reasonable” and has construed that phrase narrowly, without reference to society’s actual views. The empirical study presented in this Article, which attempts to gauge societal privacy expectations in this terrain, suggests that laypeople consider law enforcement access to genetic information to be as intrusive as, or more intrusive than, searches of bedrooms, text messages, or emails, not only when one’s DNA is held by health care providers, but also when it is obtained from direct-to-consumer genetic testing companies and public genealogy websites. Our research also suggests that the location of genetic information—rather than its nature, the purpose for which it is acquired, or the extent to which its surrender was voluntary—is the primary driver of these intrusiveness perceptions. Based on this research, we argue that both police access to non-governmental genetic databases and police use of covert methods to collect DNA in the hope of matching crime scene DNA require judicial authorization, although not necessarily a traditional warrant. More broadly, we argue that empirical data about the public’s privacy concerns surrounding law enforcement’s collection of and access to genetic data should be an integral consideration in judicial determinations of how these activities should be regulated by the Constitution.

“A World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment

by James W. Hazel & Christopher Slobogin

Click here for a PDF file of this article

Abstract

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment “search” does not occur unless police infringe “expectations of privacy society is prepared to recognize as reasonable” and has construed that phrase narrowly, without reference to society’s actual views. The empirical study presented in this Article, which attempts to gauge societal privacy expectations in this terrain, suggests that laypeople consider law enforcement access to genetic information to be as intrusive as, or more intrusive than, searches of bedrooms, text messages, or emails, not only when one’s DNA is held by health care providers, but also when it is obtained from direct-to-consumer genetic testing companies and public genealogy websites. Our research also suggests that the location of genetic information—rather than its nature, the purpose for which it is acquired, or the extent to which its surrender was voluntary—is the primary driver of these intrusiveness perceptions. Based on this research, we argue that both police access to non-governmental genetic databases and police use of covert methods to collect DNA in the hope of matching crime scene DNA require judicial authorization, although not necessarily a traditional warrant. More broadly, we argue that empirical data about the public’s privacy concerns surrounding law enforcement’s collection of and access to genetic data should be an integral consideration in judicial determinations of how these activities should be regulated by the Constitution.