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EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

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Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#31

Although I agree with the EFF, I question the legal argument, and whether or not the case will be in their favor. (1) Although DNA should be protected in the sense the government cannot take it from you, without a warrant (or claims your a terrorist). It's difficult to argue that if some hair falls off my head in public, should it not be considered "fair game"? Picking up papers out of the trash has always been fair…

> Picking up papers out of the trash has always been fair game for law enforcement

AFAIK LE still needs a warrant of some kind in order to go through your trash. At least that's what I remember from watching The Star Chamber.

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#32

How do we ensure a proper association between the samples taken and the person in question, in particular as described in the case from the article, especially without some sort of formal framework and authorization before hand?

One possible route: conduct the interview in a room that's been thoroughly cleaned beforehand (cleaners would need to be gowned). Take a sample from the chair pre-interview, then post-interview. Keep the room tightly controlled between cleaning and the interview.

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#33
post #17

Earlier quoted context omitted.

Please explain why these are poor arguments to rebut the claim, The only way this has any effect on anyone's lives is if it is used to catch you for a crime you committed.

I think you're describing questions that, before DNA analysis, were explored through traditional police investigations all the same. It would be just as disruptive if a detective figured out that the suspect is the result of an affair through tracing birth certificates and interviewing doctors and nurses as by matching DNA samples. Additionally, your hypothetical also assumes that the person(s) related to the suppose…

Additionally, your hypothetical also assumes that the person(s) related to the supposed subject have their DNA on file or are somehow compelled to provide it as evidence - precluding some kind of existing database, or a kind of chicken|egg situation. That is out of scope of this argument.

That is actually a very safe assumption.

As articles like http://www.pbs.org/wgbh/nova/next/body/dna-databases/ make clear, police already ARE creating DNA databases. And since there is little regulation around this right now, they are free to be creative in assembling them. For example you can get a good DNA sample from the straw used to blow into a breathalyzer. So get stopped at a routine traffic stop, your name, license plate, and DNA can go into a database. And voila, police can now match you and your relatives against crime scenes!

Think this is crazy? This has already been happening. See https://www.prisonlegalnews.org/news/2013/aug/15/maryland-co... for breathalyzer DNA being used to convict of a crime, http://edition.cnn.com/2013/02/26/justice/supreme-court-dna/ for the Supreme Court OKing DNA tests for arrests without a conviction, and http://www.nbcdfw.com/news/local/North-Texas-Drivers-Stopped... for a random example where this was done to random people at a traffic stop. Yes, there is outrage at present. But over time this could become the new normal.

As technology improves and costs come down, incentives to match everyone to DNA tests will go up, not down. Heck, I remember as a child in Canada over 30 years ago having police come to my elementary school and taking everyone's fingerprints. I believe that the cause was so that if anyone went missing, they could identify us. But once that data is collected and goes into databases, it doesn't come out.

Heck, how many parents would give consent today for their 2nd graders to get a DNA test for that purpose?

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#34

Although I agree with the EFF, I question the legal argument, and whether or not the case will be in their favor. (1) Although DNA should be protected in the sense the government cannot take it from you, without a warrant (or claims your a terrorist). It's difficult to argue that if some hair falls off my head in public, should it not be considered "fair game"? Picking up papers out of the trash has always been fair…

I agree with some of your points, except that the initial absence of probable cause makes this case worthwhile.

The reason to defend constitutional rights in this context is about what the government 'could' do, not what they 'should' do. As an example, I think very few people would argue about the plausible deniability of a person found with a dead body in their trunk and yet there are cases arguing about whether or not similar 'evidence' should be considered if it was discovered due to a traffic stop without cause or an improperly served search warrant, etc. The reason is not because constitutional rights advocates want the possibly guilty to go free and not because we don't want law enforcement to be able to do their jobs, but because we don't want abuses to become the norm rather than the exception.

If the courts decide that the DNA of an individual can be tested without a warrant or even probable cause, then they could just begin testing everyone that had even passing contact with a victim, a neighborhood street, a school, an entire city.

At the most extreme, the FBI could then begin to secretly collect our DNA when we go to any federal office and eventually have an entire database they can search for a match to any random DNA found at a crime scene. You might try to compare this to fingerprint databases, but those are databases of people where they was legal cause to require collection of their prints--convicted criminals and law enforcement officials are two examples. And remember that neither fingerprints nor DNA are definitive; labs make mistakes, samples are mishandled, etc.

If there was no fear that evidence could be thrown out because of how it was collected, then law enforcement would just proceed unhindered in any investigation and worry about consequences later when they got their arrest.

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#35
post #17

Earlier quoted context omitted.

Please explain why these are poor arguments to rebut the claim, The only way this has any effect on anyone's lives is if it is used to catch you for a crime you committed.

I think you're describing questions that, before DNA analysis, were explored through traditional police investigations all the same. It would be just as disruptive if a detective figured out that the suspect is the result of an affair through tracing birth certificates and interviewing doctors and nurses as by matching DNA samples. Additionally, your hypothetical also assumes that the person(s) related to the suppose…

@btilly

Won't let me reply next-in-thread. I never said that what you describe wasn't possible, and I'm indeed aware of those instances you bring up. What I'm saying is that that is out of scope of this argument. EFF is talking about collection capabilities. Immediately jumping to the 1984 senarios hurt the overall grounding of the argument.

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#36
post #29
post #21

Earlier quoted context omitted.

A warrant makes little difference in these cases, so why bring them up?

The point of a warrant is that a judge has decided that the needs of law enforcement override the right to privacy in this case. The point of the lawsuit is to set a precedent saying that the police cannot simply collect and analyze DNA without warrants. Therefore if there is a demonstrable privacy issue to DNA collection and analysis, then requiring warrants is the accepted way in our legal system to balance the nee…

I think this is also a stretch. Fingerprint databases have existed for quite some time, and yet police are not required to get a warrant to check finger prints collected from a recovered weapon against that database, which can reveal quite a lot about the history of the person.

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#37

Although I agree with the EFF, I question the legal argument, and whether or not the case will be in their favor. (1) Although DNA should be protected in the sense the government cannot take it from you, without a warrant (or claims your a terrorist). It's difficult to argue that if some hair falls off my head in public, should it not be considered "fair game"? Picking up papers out of the trash has always been fair…

The difference between shedding of hair and skin and throwing away paper is a question of intention and ability. I could choose to take more care with the paper, but avoiding shedding any DNA is basically impossible. Compare it with new x-ray/radar/EM techniques police can use to eavesdrop from miles away or even view you through walls, or read what you're typing or viewing on your various screens--there's basically…

You can't help revealing your whereabouts in public places by reflecting photons off your face or your license plate, and it is legal for police to photograph and record you in a public place without going to a judge.

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#38
post #30

Other considerations aside, DNA analysis is so easy and getting so cheap, its inevitable it will be used in every facet of our lives. So learn to live with it. Or become a luddite hiding in a cave.

Even though you're at the bottom of the comments, I'm inclined to agree. In case you're interested, here's an discussion of how this trend might at least be amenable to creating unique cryptographic IDs without the need for central governance. https://github.com/MrChrisJ/World-Citizenship/issues/22#issu...

As a password, biometrics are notoriously inappropriate (have to use the same one for everything; can't change at will; leave it in the open all over the place). But maybe as a sort of username?

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#39
post #8

Earlier quoted context omitted.

I think the argument (correct me if I am wrong) is that DNA actually contains encoded information, where a finger print is just a unique pattern.

But law enforcement is not using the encoded information, they are just taking a unique pattern from the information and using it for identification purposes.

I could for sure envision a situation where they use the encoded information. Let's say they find that the sample comes from a person who is predisposed to a heart condition and they already have a description putting him in the 40-50 age range. That's a pretty significant piece of information that can help narrow down a search or canvass, especially if there's any other meta data they can correlate to the crime.

Re: EFF to Supreme Court: The Fourth Amendment Covers DNA Collection

#40

Earlier quoted context omitted.

The difference between shedding of hair and skin and throwing away paper is a question of intention and ability. I could choose to take more care with the paper, but avoiding shedding any DNA is basically impossible. Compare it with new x-ray/radar/EM techniques police can use to eavesdrop from miles away or even view you through walls, or read what you're typing or viewing on your various screens--there's basically…

You can't help revealing your whereabouts in public places by reflecting photons off your face or your license plate, and it is legal for police to photograph and record you in a public place without going to a judge.

Right; but dna reveals more than who you are. It reveals details of your health, abilities and heredity. That can be considered more personal/private than just your name and address.

Personally I regard the issue as moot; dna identification is here and not going away.

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