Page 173 - Privacy in a Cyber Age Policy and Practice

DNA SEARCHES: A LIBERAL COMMUNITARIAN APPROACH 161

Some have argued that, to better protect individuals’ privacy, these
samples should be destroyed after DNA profiles have been extracted. Britain
is destroying its DNA samples while retaining profiles of convicted crimi-
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nals. The EU Court of Human Rights, while acknowledging the difference
between samples and profiles, ruled that both should be destroyed for
those not convicted of a crime. 27
The samples ought to be kept in order to provide for reanalysis as technol-
ogies develop, for exoneration, for convicting criminals of additional crimes
of which they have originally not been charged, and for ruling on the guilt
or innocence of arrestees that have been released but new evidence that
implicates them has been established.
Instead of destroying the samples, additional steps should be taken to
prevent unauthorized analysis and sharing of DNA samples. All such mea-
sures that limit secondary usages of genetic information and that ensure
the legality of these usages—as opposed to measures that simply limit
the collection of such genetic information—are measures that enhance
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accountability. (The term accountability is used throughout this article to
refer to institutionalized arrangements that serve to ensure that the mate-
rial at hand is used legally, without undue use, access, or disclosure—and
that proper oversight and enforcements mechanisms are in place, to gener-
ate the incentives to ensure that the various legally set rules and procedures
are observed).
Several accountability measures have already been implemented. CODIS
matches do not reveal identifying information about a person whose DNA
profile is searched, such as name or social security number; instead, each
profile is labeled with a specimen identifier, the originating laboratory’s
identifier, and the initials of the technician who created the profile. The
originating laboratories keep the samples and records of the personal
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information associated with each specimen. If a match is found, the
authorities seeking a match have the information necessary to contact the
appropriate laboratory, which then releases the identifying information
in accordance with applicable federal, state, and local law, often after re-
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testing the retained DNA sample to verify the match. Thus, a “firewall” of
sorts exists between insensitive, searchable profile information and sensitive,
personally-identifiable information and samples.
Moreover, the sensitive information contained in retained DNA samples
is protected by law. Congress enacted laws that impose heavy penalties for
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unauthorized disclosure of DNA profile information and other infor-
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mation that could be derived from analyzing DNA samples. The courts
have provided for the possibility that advances in genetic technology could
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necessitate reconsideration of the sensitivity of “junk” DNA, acknowledg-
ing that if advances in genetic technology find that “junk” DNA, including