May 9, 2008

Tiny Bits of Ourselves in Permanent Government Custody

Today, as I looked over some of my recent writing, I realized that I've been referencing my own previous posts with greater frequency. I realized also that, while I wish it were because I was able to report the reversal of bad policies, deviations from the viciously self-destructive path the United States has followed since handing the reins to George W. Bush, or even - somewhat fantastically, I know - because earlier complaints about Congress and the president were misguided, none of these is the reason behind this trend. Instead, depressingly, it is a mark of how little things have changed that I find myself providing updates about ongoing and deepening problems rather than calling attention to their resolution.

In the realm of civil liberties and privacy rights, for instance, there are new reports that, in service to the White House, the House Democratic leadership is actively seeking to snatch defeat from the jaws of victory and gift the telecommunications industry with retroactive immunity for their illegal eavesdropping on American citizens. Likewise, although the battle over the government's efforts to impose a national identification system via the REAL ID Act remains contested (at least in some places) there are ever more numerouse efforts to take this country down the path toward full surveillance statehood.

Among these efforts is the Justice Department's proposal to implement - as authorized by the DNA Fingerprint Act of 2005 - the collection of DNA samples from anyone taken into federal law enforcement custody, regardless of whether or not they are convicted of a crime:
This rule directs agencies of the United States that arrest or detain individuals, or that supervise individuals facing charges, to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States.
While the potential for abuse is somewhat self-evident in the above excerpt - federal law enforcement could simply round up people (political protestors, are a likely target) - swab their cheeks for DNA and then release them - there are a host of other potential pitfalls with which we should be very concerned.

First and foremost, innocent people do not belong in a database the sole purpose of which is to make them de facto suspects for any and all future crimes. As a recent article in Nature explains:
Although DNA can undoubtedly be useful in exonerating the innocent, a database of individual DNA profiles - as opposed to crime-scene profiles - is never necessary to exonerate an innocent person, because this can always be done by comparing the suspect's DNA profile directly with the DNA profile from the crime scene. The added value of putting individuals' profiles in a database is to introduce new suspects into past or future investigations, not to exonerate the innocent.
At first blush, this might not seem like a big deal, especially when confronted with statements that claim, for instance, that "A Chicago study in 2005 found that 53 murders and rapes could have been prevented if a DNA sample had been collected upon arrest." After all, if there are innocent people in the database, there is no way they can be flagged as a criminal suspect, because DNA profile matching provides astronomically low rates of false positive matching ... Right?


As it turns out, the type of DNA profile matching used in law enforcement today is nowhere near the precise tool that prosecutors, television crime shows and popular wisdom would have us believe. Because, while it is possible to ascertain that two samples of DNA did not originate from a single person - e.g. testing samples to prove a suspect is not guilty of a crime - the level of precision necessary to determine conclusively that two samples came from the same person does not exist. Accuracy varies wildly based on a number of factors, and the larger the reference database, the higher the odds are that people will be implicated in crimes of which they are innocent because of false positive matches. (See this Los Angles Times article - also linked in the next paragraph - for a fuller explanation of the last statement.)

Recently, for example, a man in L.A. was convicted of murder because his DNA - which had been stored after previous arrests - was apparently matched to that of the killer in a 30-year-old, unsolved slaying. While prosecutors told the jury that the odds of a false match in this case were greater than 1.1 million to 1, because of degradation in the original DNA sample - as well statistical considerations involving the use of California's DNA database - the actual odds of an inaccurate match were as a high as one in three.

Further, implementing a sweeping collection process for DNA would - like the requirements for REAL ID - be wholly impractical. The proposed Justice Department regulation estimates that roughly one million new samples would be collected annually, but the Federal Bureau of Investigation (FBI) currently processes only about 75,000 samples each year - a sure recipe for massive backlogs and the consequent errors that have plagued other, overloaded DNA matching efforts. One possible solution would be to outsource such a program to the private sector - something the DNA Fingerprint Act openly contemplates - but the potential for abuse, including "shadow databases," of this kind of deeply personal data in such circumstances is hard to deny.

DNA, after all, despite the name of the legislation in question, is not just a fingerprint; it houses highly sensitive medical information. While the use of said information to deny health insurance or disqualify people from certain kinds of employment is currently prohibited, the fact of the matter is that the actual samples used to extract DNA profiles - not just the profiles themselves - would be held in perpetuity. Given the creeping intrusiveness we have seen during the presidency of George W. Bush, it is only a naive or foolish citizen who believes those little bits of themselves in permanent government custody would be in any way sacrosanct.

Given the controversial nature of the proposed DNA collection procedures, one might reasonably wonder why it hasn't been a hot topic of discussion; why this issue wasn't front page news when it was debated in the halls of Capitol Hill. There is an easy answer: it was never debated and no votes were cast for it or against it. Instead, Senator John Kyl, Republican of Arizona, attached the DNA Finger Print Act to the reauthorization bill for the popular (and otherwise commendable) Violence Against Women Act (VAWA). This bill, complete with its DNA collection amendment, passed the Senate by unanimous consent, and was signed into law by the president on January 5, 2006.

And now - as with so many things in George W. Bush's America - we have to deal with the very real and very serious effects of this short-sightedness, arrogance and hypocrisy.

Like I wrote at the beginning, not much has changed.


If you'd like to make your voice heard on the implementation of this legislation, use this link to go to and add your public comment. Comments can be made on this topic until May 19th.

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