Page 174 - Privacy in a Cyber Age Policy and Practice

162 PRIVACY IN A CYBER AGE

that found in DNA profiles, contains meaningful information, this infor-
mation would be have to be accorded additional protections. Likewise,
the Supreme Court’s permissive attitude towards police DNA usage may
change if that usage changes in character: “If in the future police analyze
samples to determine [. . .] hereditary factors not relevant to identity, that
case would present additional privacy concerns not present here.” 34
In this area, as in so many others, attention focuses on “Big Brother,”
on the government. Americans tend to fear and distrust the government
while assuming that the private sector will promote liberty rather than
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undermine it. However, as we have seen elsewhere, private corporations
increasingly act in ways that violate individual rights, in particular privacy.
A full review of DNA usages, well beyond the purview of this paper, would
have to examine the growing role private companies play in the analysis of
DNA and their marketing of this information to other private actors—and
to the government.
Finally, abuse of DNA information is much less widespread than critics
assume. A 2009 report by the Department of Justice Office of the Inspector
General found one rare example of such outright abuse; it reported that
a forensic laboratory in Texas had given CODIS access to one individual
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that the FBI had failed to authorize. Even in this case, the unauthorized
access appears to have occurred as a result of oversight rather than mali-
cious attempts to gain genetic information about specific individuals in the
database.
In short, critics’ concerns about the exposure of sensitive informa-
tion contained in DNA samples are valid, but they are not relevant to the
DNA profiles included in the national databases used by law enforcement
authorities. Samples are and ought to be kept in local storage, to allow
retesting (if there evidence of error or abuse in the first round of analysis)
and to provide for opportunities for more analysis as technologies are fur-
ther developed. Samples are already reasonably well protected, although
more such protection could be improved. There is little evidence that pri-
vacy is violated in the ways anticipated by critics; most of the criticisms
levied against forensic DNA usages are hypothetical rather than based on
evidence.

2. Fishing Expeditions and Dragnets

Another cause for concern relating to forensic DNA usages is that they
could encourage unwarranted intrusions by the police into the lives of inno-
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cent individuals. “Fishing expeditions,” in which the police examine in
details the lives of people not suspected of having committed any crime, are
a major category of such intrusions. These are opposed by civil libertarians