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By Noam Biale, Advocacy Coordinator, ACLU Technology and Liberty Program

I blogged here last month about new rules from the Department of Justice that would allow the government to collect and permanently retain DNA samples from anyone arrested for a federal crime. That’s right, we’re not talking convicted felons here, but anyone merely arrested for a minor crime like trespassing on federal property during a peaceful protest.  This issue has reared its ugly head in the states as well, most spectacularly in Maryland where the Legislative Black Caucus walked out of a floor debate on an expansion bill that would have subjected Maryland’s minority community to genetic racial profiling.

Now I know we’ve all become a little desensitized to the latest Bush administration assault on Americans’ privacy.  But if you think these kinds of invasive, Big Brother-style expansions of federal databases are unique to the Republican appointees currently in charge at DOJ, think again.  Yesterday, two Democrats in Congress proposed amendments to the Debbie Smith Reauthorization Act of 2008 that would dramatically expand the FBI’s Combined DNA Index System, or CODIS, which merges DNA profiles collected by the federal government with all the state DNA databases.

An amendment proposed by Rep. Anthony Weiner, Democrat of New York, would require states to collect and permanently retain DNA from all felons in state prisons.  Many states already do this, but just last week the New Hampshire legislature killed an effort to expand its DNA database from murderers and sex offenders to all felons.  This limitation on the state’s DNA collection makes good sense, since those are the kinds of crimes where DNA is usually found and where it is most useful as an investigation tool.  

In addition to being unnecessary, the Weiner amendment may violate the 10th Amendment, as understood by the US Supreme Court in Printz v. United States.  In that case, Justice Scalia wrote for the majority:

"The Framers rejected the concept of a central government that would act upon and through the States...The Federal Government’s power would be augmented immeasurably and impermissibly if it were able to impress into its service – and at no cost to itself – the police officers of the 50 States."

I’m not a lawyer, but the federal government telling a state how to run a state law enforcement database for the purpose of building the federal database that it feeds seems damn well impermissible in the determination of Justice Scalia (hardly a champion of civil liberties, though certainly liberal with the obscene hand gestures).

Even worse though is an amendment offered by Rep. Adam Schiff, again a Democrat, this time from California.  Schiff’s amendment would give states cash incentives to begin collecting DNA from anyone arrested for a violent or sex crime, including misdemeanor sex offenses.  As the ACLU has argued time and again, innocent people do not belong in a criminal database.  Currently, most states do not take DNA from people who have yet to be convicted of a crime, unless that DNA sample is required for an investigation, in which case you can easily get a warrant or court order to obtain it.  Including arrestees would dramatically expand the state and federal DNA databases to include vast numbers of innocent people, and would necessarily exacerbate racial disparities that already exist in these databases.  

The bottom line is: the federal government should not be spending taxpayer dollars to induce the states to invade their citizens’ privacy and put minority communities under greater genetic surveillance.

Unfortunately both these amendments passed the House Judiciary Committee.   The Judiciary Committee, you say?  The one that’s been under Democratic control since 2006?  The very same.

Ironically, both of these amendments will undermine the bill they were attached to, which aims to cut down on the massive rape-kit backlog that has made the CODIS system an inefficient and ineffective law enforcement tool.  If we are serious about using DNA to catch criminals, let’s fix the system we have now rather than flooding it with DNA samples from people who have not been convicted of any crime.

And, please, we realize it may make the Democrats in Congress a bit squeamish to push back against Bush administration assaults on civil liberties, but could they at least abide by some form of the Hippocratic oath – "First, do no harm?"

Originally posted to ACLU on Thu Jun 12, 2008 at 02:48 PM PDT.

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