California is being sued for maintaining the DNA of people who are arrested but never convicted of a crime.
The Electronic Frontier Foundation is representing the Center for Genetics and Society and the Equal Justice Society along with one individual, Pete Shanks, in the case.
“One-third of people arrested for felonies in California are never convicted,” explained Marcy Darnovsky of the Center for Genetics.
“The government has no legitimate interest in retaining DNA samples and profiles from people who have no felony convictions, and it’s unconstitutional for the state to hold on to such sensitive material without any finding of guilt,” she said.
California long has collected DNA from people convicted of felonies. In 2009, the state began requiring DNA collection for anyone charged with a felony, including those later determined to be innocent.
Giving a DNA sample is not optional. Refusal can be punished by a year in prison, and officers are authorized to use “physical force” to obtain a sample.
“The intimate details that can be revealed by a person’s DNA only increases as technology develops, exposing plaintiffs to ever heightening degrees of intrusiveness,” EFF said. “After collection, the DNA is analyzed and uploaded to the nationwide Combined DNA Index System, or ‘CODIS,’ which is shared with law enforcement across the U.S.”
One problem is that cases have shown DNA samples can implicate innocent people for crimes, “ranging from crime-lab sample mix-ups and sample contamination by forensic collectors, to subjective misreading of complex mixtures containing genetic material from multiple donors, to selective presentation of the evidence to juries.”
Racial profiling is another problem, the critics say.
“The failure to promptly expunge profiles of innocent arrestees exploits and reinforces systemic racial and socio-economic biases,” said Lisa Holder of the Equal Justice Society. “We want the court to recognize that California’s DNA collection and retention practices are unfairly putting already vulnerable poor communities and people of color at even greater risk of racial profiling and law enforcement abuse.”
While the state allows people who are not convicted to request that their records be expunged, it is a lengthy process with uncertain results.
An estimated 750,000 people qualify for that program, but only about 1,300 have been successful with their requests, EFF said.
“The indefinite retention of thousands of DNA profiles from people who are acquitted or never charged violates the California Constitution, which affords both a right to privacy and a right against unlawful searches and seizures that are specifically aimed at protecting people from the government’s overbroad retention of personal information,” said EFF.
“Our DNA contains our entire genetic makeup – private and intensely personal information that maps who we are and where we come from,” noted EFF lawyer Jamie Lee Williams. “It’s time for the state to start honoring the privacy rights guaranteed to all Californians.”