Page 177 - Privacy in a Cyber Age Policy and Practice

DNA SEARCHES: A LIBERAL COMMUNITARIAN APPROACH 165

database offender was released to the Los Angeles Police Department as
an investigative lead. 50
A third category of criticism targets “dragnets,” which, with respect to
DNA sampling, entail the DNA testing of large numbers of individuals whom
authorities have neither probable cause nor reasonable suspicion to believe
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perpetrated a crime, but who live or work near a crime scene. (That is,
unlike random fishing expeditions, dragnets are targeted, if broadly so).
Some dragnets included collections of hundreds or even thousands of
DNA samples—one 1998 dragnet in Germany took DNA samples from
some 16,500 people. 52
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Critics raised a number of concerns about dragnets. First, they point
out that “DNA profiles of dragnet volunteers are generally not destroyed
after it is determined that the volunteer is innocent, but rather] are often
retained in law enforcement databases, as most state laws “do not address
the retention or expungement of genetic information obtained from sus-
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pects or samples given “voluntarily.” To address this concern, DNA samples
and profiles of innocents collected through dragnets should be destroyed or
sequestered following the conclusion of the investigation.
Second, critics contend that dragnets suffer from cost and effectiveness
concerns: Of 292 DNA dragnets in England and Wales since 1995, about
20 percent produced meaningful leads, but only 1 out of the 18 dragnets
conducted in the United States since 1990 leading to a viable suspect, a
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success rate of less than 6 percent. This is not a principled objection; as
costs decline, dragnets would seem more justified. Even 6 percent is far
from a poor ratio especially if dragnets are limited, as most seem to be, to
very serious crimes.
In short, although at first blush the difference between fishing expedi-
tions and dragnets may seem to be small, fishing expeditions constitute a
much greater violation of individual rights than dragnets. Even dragnets
should be limited merely to seeking to solve major crimes.

3. Abandoned DNA

When police seek a DNA sample from a suspect, and cannot secure that
suspect’s consent or a warrant for DNA testing, they often obtain a DNA
sample surreptitiously, using what legal scholars refer to as “abandoned
DNA.” In a 2003 case, for example, police posed as a fictitious law firm in
order to convince a suspect to send them a letter—from which they then
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extracted the suspect’s DNA. The legal basis for this practice comes from
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the Supreme Court ruling in California v. Greenwood (1988) that the
Fourth Amendment does not prohibit the search of discarded garbage.