Page 175 - Privacy in a Cyber Age Policy and Practice

DNA SEARCHES: A LIBERAL COMMUNITARIAN APPROACH 163

on the ground that all human beings are likely to have committed some
kind of offense at one point or another, and hence if fishing expeditions
are allowed, very large parts of the populations would find itself in court if
not incarcerated, and all would live in constant fear of being convicted. In
the terms employed here, fishing expeditions would greatly undermine the
liberal communitarian balance, by grossly violating rights.
Such DNA fishing expeditions are rare and should be avoided. They
become more of a concern the greater the range of DNA included in the
evidentiary databases. These expeditions are less troubling if the databases
include only DNA from the scenes of serious crime, such as murder and
rape, and very troubling –if they would include DNA collected from litter
left by people in public spaces or other misdemeanors.
The second category of criticism targets methods of investigation
whereby the police conduct partial match searches, mainly familial searches.
In such searches, when DNA collected from a crime scene partially
matches a profile in the police database, the individual from the data-
base is excluded from suspicion, but it is more likely that a closely related
rather than unrelated person is the source of crime-scene DNA, which
leads police to investigate the partially matching individual’s family. Such
searches have been used relatively often in the United Kingdom, solv-
ing several high-profile cases, but to date are less common in the United
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States. Police argue that such “partial matches” are a useful investigative
tool that helps investigators solve difficult cases and deters crimes (because
potential criminals fear both they are more likely to be caught, and that
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their families may come under surveillance ), and New York recently
passed a new law to allow for such searches despite objection by the
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ACLU. Critics warn that in addition to exacerbating privacy concerns
associated with expanding the DNA database generally, familial searches
“effectively include individuals based on genetic association, rather than
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suspicion or even conviction of crimes,” risk revealing private family
associations (such as marital infidelity), and “expose innocent relatives to
life-long surveillance and possible surreptitious collection of DNA simply
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because they are related to someone in the national database.” In this
sense, restricting access to and disclosure of such personal information
is especially important for partial match searches. Critics also allege the
partial match searching exacerbates the racial inequities characteristic of
forensic DNA usages more generally (see below). 43
A more general cause for concern is that such partial match searching,
can generate false positives, exposing unrelated innocents to unwarranted
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police intrusion. Consider the case of Raymond Easton. Easton was a
forty-eight-year-old man who was arrested for a burglary that was com-
mitted two hundred miles from his home on the basis of a partial match