Page 180 - Privacy in a Cyber Age Policy and Practice

168 PRIVACY IN A CYBER AGE

Moreover, DNA profiling has the potential to counteract racism in
other aspects of the criminal justice system. In July 2014, for example, as
part on an ongoing effort to apply DNA testing to rape evidence, a Texas
man was exonerated for a 1990 rape. He had spent more than a decade in
jail, having pled guilty after “his attorney urged him to accept a plea deal
because a jury likely would not side with a black man accused of raping a
white teenage girl.” Unfortunately, his previous petitions for DNA testing
had been denied. 67
Some have advocated the establishment of a universal DNA database
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as a way to eliminate racial disparities. Advocates argue that a universal
database, also referred to as a national DNA registry, would answer compo-
sitional criticisms of existing databases (that is, the perceived unfairness of
racial disparities, familial search, and arrestee sampling) by treating everyone
equally. At the same time, advocates argue, such a database would deliver major
benefits to law enforcement “in deterring potential offenses, in generating
investigative leads, and in exonerating the innocent,” while removing the
need for additional intrusions (such as fishing expeditions or dragnets).
Critics counter that a universal database would alienate the public,
constitute an unconstitutional intrusion given the absence of individualized
suspicion, and undermine privacy and anonymity of millions of people,
at the risk of radically altering the relationship between the citizen and
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government” to create a nation of suspects. (Such proposals have also
been labeled “prohibitively expensive,” but this is a decreasingly relevant
objection as DNA profiling technology and computer technology lead to
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declines in cost. )
A liberal communitarian response can draw on a “law” formulated by
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the author in a different context. Namely, one can grant more license to
primary data collection (in this case, DNA)—the stronger accountability
is. That is, the balance here is not between individual rights and the com-
mon good, but between the guards (law enforcement authorities) and their
guardians (such as Inspector Generals, Congressional oversight, the courts,
the media, and civil rights advocacy groups). Such accountability must
be robust, prevent mission creep, and compensate for a mindset among
some law enforcement authorities that heavily favors the common good
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over privacy rights, but the fact that there seems to be very little abuse
due to improper use of the data (and much due to insufficient analysis) is
encouraging and favors such data bases as their costs decline. Nor should
one be stopped by the argument that even if current the DNA information
is well guarded, one day a tyrant may come and abuse it. (As a colleague
wrote, “no matter what safeguards are put in place today, is there any real
assurance they will control next year or next decade?”) If the people do not
come together to prevent such a development, much more will be lost than