Page 170 - Privacy in a Cyber Age Policy and Practice

158 PRIVACY IN A CYBER AGE

this technology to the common good. More attention is devoted to issues
raised by rights advocates than to their contributions to the common good,
because the latter are much less contested. In conclusion we find that these
DNA usages pose a surprisingly distinct liberal communitarian balance.
It cannot be stressed enough that this chapter does not seek nor provide a
comprehensive—let alone exhaustive—review of all the issues raised by forensic
DNA usages concerning intrusions into individual rights or contributions to
the common good. It merely seeks to place these usages in the liberal com-
munitarian context and ask whether—on balance, at this time in history, in
the United States—these usages tilt excessively in one direction or the other.

A. The History of Forensic DNA Usages

The first state DNA database used for forensic purposes was established in
3
the United States, in Virginia in 1989, and was followed in 1990 by a pilot
program of fourteen state and local laboratories linked by specially designed
4
software called CODIS. This pilot program expanded into an FBI-operated
system of state and local DNA profile databases in forty-one states and the
5
District of Columbia beginning in 1991. A National DNA Index System
(NDIS) became operational in October 1998. It contains qualifying DNA
profiles, or DNA profiles that meet NDIS standards according to federal
law, uploaded by participating federal, state, and local forensic laborato-
6
ries. (Note that state and local jurisdictions may have less stringent rules
about which DNA profiles may be included in their DNA databases.) As of
July 2014, NDIS included more than eleven million DNA profiles. 7
Congress has expanded the breadth of the NDIS database over time.
When NDIS was established, it was authorized to contain DNA identi-
fication records for “persons convicted of crimes” as well as “analyses of
DNA samples recovered from crime scenes . . . from unidentified human
remains . . . [and] voluntarily contributed from relatives of missing persons.”
Congress defined a set of crimes that it considered sufficiently serious to
warrant collecting DNA samples from those who commit them, includ-
8
ing murder, sexual abuse, and kidnapping; these crimes are referred to as
“qualifying offenses.” Initially, Congress included in NDIS only the DNA
profiles of individuals who were then in custody for qualifying offenses at
the state level, but eventually it also authorized the inclusion of DNA pro-
files of individuals who were convicted of and incarcerated for qualifying
offenses at the federal level or in the District of Columbia. In 2000, Con-
gress also authorized the inclusion in NDIS of DNA profiles collected from
probationers and parolees who had been previously convicted of qualify-
ing offenses, and it retroactively approved the collection of DNA samples
from individuals then in custody who had been previously convicted of