ALBANY (Jan. 10, 2023) – A bill filed in the New York Senate would prohibit the use of DNA ‘phenotyping’ is criminal prosecutions and proceedings.
Sen. Michael Gianaris (D-NY12) introduced S226, which prevents law enforcement from contracting for DNA phenotyping services as well as prevents them from making arrests based on evidence that results from the practice. Any such evidence would be inadmissible in court.
Phenotyping is a process by which an individual’s DNA can be used to build a composite of a person’s likeness, and allows authorities to profile potential suspects with clues to hair and eye color, facial shape, skin color, sex, and more.
Getting Federal Courts Out of the Loop
DNA searches are widely viewed as a Fourth Amendment issue. By passing laws to require a warrant at the state level, Maryland and Montana take the issue out of the purview of federal courts.
This is an important step given how the federal judiciary has gutted the Fourth Amendment over the years. Federal courts have created all kinds of exceptions to the privacy protections and the warrant requirement in the amendment and applied them across the entire United States through the dubious “incorporation doctrine.”
This legal doctrine was invented out of thin air by the Supreme Court based on the 14th Amendment and purportedly empowers the federal government to apply the Bill of Rights to the states. Without this made-up court doctrine, this wouldn’t be a federal issue to begin with.
To date, the Supreme Court hasn’t issued an opinion on whether warrantless access to private DNA sites runs afoul of the Fourth Amendment. But in King v. Maryland, the Supreme Court held that forcibly taking DNA samples from individuals after an arrest doesn’t violate the Fourth Amendment even if the person wasn’t convicted of a crime. Given the Court’s track record, it seems likely it will ultimately give police some leeway in warrantlessly accessing DNA databases. When it does, this standard will apply to every state in the U.S.
The Electronic Frontier Foundation (EFF) argues that these DNA database searches violate the Fourth Amendment.
“Through FGGS, Law enforcement regularly accesses this intensely private and sensitive data. Just like consumers, officers take advantage of the genetics companies’ powerful algorithms to try to identify familial relationships between an unknown forensic sample and existing site users. These familial relationships can then lead law enforcement to possible suspects. However, in using FGGS, officers are rifling through the genetic data of millions of Americans who are not suspects in the investigation and have no connection to the crime whatsoever. This is not how criminal investigations are supposed to work. As we have argued before, the language of the Fourth Amendment, which requires probable cause for every search and particularity for every warrant, precludes dragnet warrantless searches like these. A technique’s usefulness for law enforcement does not outweigh people’s privacy interests in their genetic data.”
But the Federalist Society has already argued that a warrantless search of a private DNA database “does not implicate the Fourth Amendment’s prohibition against unreasonable searches and seizures requiring law enforcement to obtain a warrant, even under the most expansive reading of recent Supreme Court precedent.”
Of course, the SCOTUS could issue an opinion in keeping with the intent of the Fourth Amendment. But do you want to take that chance?
If passed, any such information obtained by law enforcement via the practice of DNA phenotyping would be destroyed.
The post New York Bill Would Prohibit Use of DNA ‘Phenotyping’ in Criminal Cases first appeared on Tenth Amendment Center.
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