Page 178 - Privacy in a Cyber Age Policy and Practice

166 PRIVACY IN A CYBER AGE

Critics argue that the collection of abandoned DNA centers represents
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“the uncritical surrender of important civil liberties.” Elizabeth Joh holds
that police that use abandoned DNA bypass “criminal procedure rules that
normally apply to searches and seizures” as well as restrictions on adding
DNA profiles to CODIS, and she disputes the idea that California v. Green-
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wood, a ruling about garbage, justifies the practice. And, collecting DNA
in this way, critics, believe, violates the expectation of privacy of people
who are often unaware that they leave their DNA behind. (This last con-
cern would hold only as long as this police practice, often featured in TV
shows, does not become more widely known). Despite the Greenwood rul-
ing, the collection of abandoned DNA has not been unanimously accepted
by judicial and legislative authorities. The Oregon Appeals Court excluded
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abandoned DNA evidence in State v. Galloway and Hoesly (though with a
property rather than privacy-based argument), and lower courts in a num-
ber of states have established higher standards for state and local police on
police use of abandoned property more generally. 61
In response, one notes that if police were not be entitled to collect
abandoned DNA (without a warrant), they would logically also have to
be banned from collecting abandoned hair or finger prints, or examine
trash, on the same grounds. Such limitations would greatly hamper the
police’s work and greatly tilt the liberal communitarian balance away from
public safety.

4. Racial Profiling

Forensic DNA usages have also been challenged on the grounds that
they discriminate against people of color in the United States, especially
Black and Latino men. Critics argue that at all stages of DNA usages—
arrestee sample collection, convicted offender sample collection, database
searches, and partial match searches—people of color are disproportion-
ately affected. This is due to institutional racism in the American criminal
justice system, which has many sources, including that the laws are harsher
on street crime (more likely to be committed by minorities and those of
low income) than white collar crime, despite the fact that the latter imposes
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greater economic harm; harsher penalties for the use of crack cocaine
(more often used by minorities) than for the use of cocaine (more often
used by white people); biases build into the composition and attitudes of
many local police forces as well as socio economic conditions that predis-
pose some groups to commit more crimes that others.
One aspect of racial profiling relates to the ways DNA samples are
collected. In cases where police have a loose physical description of a crime