51:1 Twenty-First Century Surveillance: DNA “Data-Mining” and the Erosion of the Fourth Amendment

Abstract

The Fourth Amendment protects against unreasonable searches and seizures. However, the advent of DNA analysis as a crime-solving tool and frequent advancements in genetic research have triggered constitutional uncertainty regarding an area of privacy rights that did not exist when the Fourth Amendment was conceived. Inconsistencies among the states reveal that there is an enormous disparity among jurisdictions regarding an individual’s expectation of DNA privacy. Specifically, courts across the country have struggled with whether, under the Fourth Amendment, it is constitutional to (1) physically seize a pre-conviction arrestee’s DNA sample, and (2) use that sample by analyzing it in its DNA profile form.

On June 3, 2013, the United States Supreme Court weighed in on the issue. Touted by Justice Samuel Alito as “the most important criminal procedure case” in decades, the Court chose to review a Maryland Court of Appeals decision that held that Maryland’s DNA statute was unconstitutional as applied to a pre-conviction arrestee. Resulting in a sharp five-four split, the Court reversed the Maryland Court of Appeals’ decision and held that “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.” The Court’s decision to uphold Maryland’s statute will essentially give the green light to other states to expand their own DNA statutes to encompass pre-conviction arrestees.

This Comment argues that the Court should not have reversed the Maryland Court of Appeals’ decision because expansion of state DNA statutes threatens both the personal liberties of unconvicted citizens, as well as the integrity of already burdened crime labs. In response to the Court’s decision, this Comment proposes that Congress should constrain existing federal DNA legislation, thus requiring all fifty states that contribute to the federal database to comply with the stricter federal standards. Specifically, Congress should amend the federal legislation by: (1) requiring the automatic deletion of the DNA sample upon dismissal of charges; (2) postponing the creation of the DNA profile from the DNA sample until the arrestee is convicted; and (3) mandating that DNA samples be immediately deleted following the creation of the DNA profile.