Page 169 - Privacy in a Cyber Age Policy and Practice

10

DNA Searches: A Liberal

Communitarian Approach 1

rguments concerning the conditions under which public authorities
Amay collect, analyze, and retain DNA samples and profiles for the
purpose of investigating crimes (“forensic DNA usages”) are often couched
in terms of a familiar debate between individual rights and the common
good. That is, the arguments are framed as a confrontation between those
who champion individual rights, especially privacy, and those concerned
with the common good, especially public safety and national security.
Members of the first camp frequently argue that forensic DNA usages
without “individualized suspicion,” without specific authorization by the
courts, constitute a gross violation of basic rights. Those of the second
camp often argue that these searches significantly curb crime, including
terrorism, and that the interventions involved are limited.
By contrast, the liberal communitarian approach, which this chapter
develops and applies to the issues raised by forensic DNA usages, assumes
that all societies face two fully legitimate normative and legal claims—those
posed by individual rights and by the common good—and that neither a
priori trumps the other. Each society must work out the extent to which it
tilts toward one of these two major claims on a given issue. The author has
previously explored such a balance between individual rights and the com-
mon good as it applies to National Security Agency programs, the Patriot
Act, public health laws, publication of state secrets, Megan’s laws, national
2
identification cards, and medical privacy. These studies revealed that lib-
eral communitarianism favors a distinct balance between individual rights
and the common good for each of these areas of public policy. (For a dis-
cussion of this balance as it applies to privacy and security, see Chapter 7.)
This chapter will show that policies concerning forensic DNA usages
have a profile all their own. The article first briefly reviews the history of
forensic DNA usages, next addresses the criticisms of DNA usage by vari-
ous advocates of individual rights, and then examines the contributions of