
California’s DNA Law Violates Privacy Protections Guaranteed by State - pavornyoh
https://www.eff.org/press/releases/eff-court-californias-dna-collection-law-violates-privacy-protections-guaranteed
======
hwstar
Here's another interesting fact.

Once the arrested bit is set, it is immutable in the eyes of the State of
California. Law enforcement knows if you have been arrested in the past even
if the specific reasons are expunged at the request of the arrestee. Also,
there's a very narrow window to request that arrest records be expunged. If
you are arrested and acquitted or the charges are dropped, get in contact with
the court as soon as possible to make sure you are within the window.

~~~
hansjorg
That seems directly opposed to the presumption of innocence.

I guess the lawyers have a way of justifying this by separating different
states of being "in the eyes of the law".

~~~
brownbat
> I guess the lawyers have a way of justifying this...

Lawyers have other safeguards in the courtroom, so that random police habits
don't mess up the entire system. For example, prior arrests are generally
inadmissible. It doesn't mean this is a nonissue for citizens, but it blunts
its ability to corrupt the entire process.

~~~
mkempe
Connecting your statement with the dominating use of "plea deals" one sees
that these "courtroom safeguards" mean pretty much nothing.

~~~
brownbat
> plea deals

There are more violent crimes than can be tried. This is a _hard_ problem. Of
the options, simplified a bit:

a) try fewer crimes and let more suspects free

b) try all crimes and forgo the right to a speedy trial

c) increase the funding of the criminal justice system by a factor of 10-100

d) allow prosecutors and defense attorneys to negotiate settlements in easy
cases, to avoid wasting court resources, and providing a path for leniency for
certain defendants

(d) has flaws, but I'm not surprised our system has opted for it as the least
bad solution.

Legal scholars have struggled to find a better approach for decades. Curious
to hear your recommendation, really interested in novel approaches to this
issue.

~~~
mkempe
The problem in the USA is not violent crime.

The problem is that there are too many arbitrary laws that are applied
capriciously by prosecutors who don't care whether people are innocent or
guilty, that these same prosecutors don't care whether the due process of law
is fact not fiction, and finally that when these prosecutors deliberately
subvert the process or threaten people with horrendous consequences unless
they sign a plea deal (even when they know the accused is innocent), these
people suffer no consequences.

~~~
brownbat
> The problem in the USA is not violent crime.

Just to clarify, I didn't mean "violent crime" is the problem, I was talking
about limited resources in the justice system. It's the ratio of crimes to
trial resources that causes this problem, not the raw number of either alone.
Scarcity / imbalance forces a dilemma, a dilemma that's tempting to ignore,
because it's a hard problem.

Sometimes hard problems look simple to people who have never worked in the
profession. It's like how people who've never written code ask, "Why don't
programmers just write software without any bugs / that can't be hacked?"

On the other hand, sometimes an outsider has a fresh perspective that can
point out flaws in old habits.

Could be either here, but let me explain why I think it's the former.

I worked in the criminal justice system in a major metro area. Most the people
I knew in the profession swapped between defense and prosecution every few
years, because they were interested in the process, not in scoring points for
one side.

I strongly suspect that's because people who don't have that mixed
perspective, the people who are just overzealous to one extreme or the other,
they are worse at connecting with judges, who pride themselves on
impartiality. Their crusader bias makes them bad at their job, so eventually
they get burnt out and leave.

That's not to say there aren't obstacles to fairness in the US justice system.
Real problems. There are a ton, some on each side. For example: Public
defenders are vastly under-resourced. Prosecutors have resource dilemmas, but
defenders are just fucked. Juries have zero sympathy for victims that aren't
like them. Jurisdictions that are right next door to each other can approach
low level crimes way differently, because of uneven resources, so walking a
block can turn a no jail time misdemeanor into a ten year offense. Those with
psychological problems or mental disabilities should basically never be put in
front of a jury, as either a victim or as a defendant. Also, the mentally ill
need solutions that aren't jail, but they're often shoehorned into a system
that only makes their situation worse.

Having seen all that on a day to day basis, the problem you described, where
prosecutors just love framing innocents because fuck justice? That doesn't
line up with my experience at all. I mean, I'm all for safeguards, but there
are some other issues too, some of which seemed slightly more common to me.

------
mc32
Doesn't the state collect DNA from all newborns by law as well?

Now, I do see in principle why one would want one's DNA profile removed if an
arrest doesn't result in conviction, but if the state already collects DNA at
birth by law, would that not supercede these cases? Alternatively, the state
could simply pass laws making retention from this input stream legal.

~~~
mcherm
Does it? I was not aware of that. I know that my state, Pennsylvania, does no
such collection -- or at least it did not a decade ago when my children were
being born.

~~~
gojomo
My impression is that the collection is so routine and automatic that most
parents don't even notice it's happening, and would need to assert themselves
in advance in writing to exercise their religious opt-out.

This site suggests Pennsylvania's policies for sample retention (8 months) and
use of results (by subject and their medical provider only) are more
restrictive than "save indefinitely" states like California:

[http://www.babysfirsttest.org/newborn-
screening/states/penns...](http://www.babysfirsttest.org/newborn-
screening/states/pennsylvania)

~~~
mc32
Yeah, during newborn delivery there is so much going on, most parents will not
notice that this happens at all.

So my question is what leg does the EFF stand on when making this complaint?

~~~
bmelton
> So my question is what leg does the EFF stand on when making this complaint?

The honorable Carol Yaggy, trial judge for the superior court of San
Francisco.
[http://www.courts.ca.gov/opinions/revpub/A125542M.PDF](http://www.courts.ca.gov/opinions/revpub/A125542M.PDF)

If indeed DNA is being collected at birth, without consent, the EFF would have
similar grounds to object to that. If an act is against the law, it doesn't
matter that the state is breaking that same law in another instance. Breaking
the law twice doesn't validate it, or, as my first grade teacher Mrs. Thompson
might have said, two wrongs don't make a right.

~~~
mc32
It does and people are aware. It's offered as screening for diseases, etc. Few
parents opt out. Fingerprints are also collected at DMV, they should look into
that, afaik, there is no opt out, except not getting an ID.

------
dlandis
> California officials argue that the court should follow the lead of the U.S.
> Supreme Court, which ruled in Maryland v. King that citizens’ privacy rights
> are outweighed by the government’s need to use DNA to identify arrestees,
> just as it uses fingerprints.

The article makes it sounds like the Supreme Court has already ruled on this
issue. Wouldn't that make this California case moot?

~~~
detaro
In Maryland v. King the crucial difference is that according to the Maryland
law in question the DNA sample has to be destroyed if there is no conviction
and it can't be processed before the arrestee has been charged. (according to
wikipedia:
[https://en.wikipedia.org/wiki/Maryland_v._King](https://en.wikipedia.org/wiki/Maryland_v._King))

------
avmich
> Hundreds of thousands of Californians who were once in custody but never
> charged still have their DNA stored in law enforcement databases

Can those databases be cleaned from this information? By a judge request
maybe?

------
eggie
I have a lot of faith in the EFF but in this case I think they are confused.
Our DNA is one of the least private aspects of ourselves. We share the vast
majority of it with our family and even neighbors. The idea of hiding it is
absurdly impossible. We leave it everywhere we go in quantities that are more
than sufficient to completely reconstruct our genome. We would literally need
to wear full body latex suits with filtered respirators to keep it private. In
the medium term, the idea of having private DNA while living in a public
environment is as incredible as desiring to have a public social experience
while keeping your face completely hidden. DNA sampling arrestees is no more
invasive than taking their photo. It is only our current technical capacity
that makes us see the two as different.

~~~
Lawtonfogle
This is kinda like saying that because our bodies constantly emit
electromagnetic radiation that could be used to construct a detailed nude
image, using a camera with the tools needed to do such isn't invasive.

What happens when we have the technology to read internal monologues? What
happens when the police are able to hear the lawyer talking to their client
because they are talking too loud for the new technology... if they didn't
want to be heard should they whisper... and what happens when even that is too
loud? Under this reasoning, most all privacy is as good as dead and we are
just waiting for the technology to get here.

~~~
eggie
When it comes to DNA we are already nude. You will have better luck keeping
your face private and going about a normal life than hiding your genome from
the world. The former can be accomplished with a mask. The latter requires
living in a plastic bubble and never sharing the genomic information of
anyone.

I do not want to live in a world where everyone must be masked, and although
the utility of sharing information about DNA is of a different kind I will
also be profoundly sad if we are too afraid of the bogeyman to let other
people know what we are made of.

Perhaps I feel so strongly about this because there is literally not one case
where DNA information alone has resulted in harm. I challenge you to provide
an example. Digitized DNA sequence information from tens of millions of people
is floating around in the world. If this were as dangerous as some people make
it out to be I would expect there to have been many problems already.

(The example that I have heard is when someone learns their biological parents
are not who they think they are. Although this may be troubling I find it
absurd that someone should have the right to delude or be deluded about their
genetic background. At worst it can pose a dangerous liability as someone
lacks information about diseases that may affect them or their offspring.)

~~~
tzs
> Perhaps I feel so strongly about this because there is literally not one
> case where DNA information alone has resulted in harm

Wrong:

[http://www.theatlantic.com/science/archive/2015/10/the-
dark-...](http://www.theatlantic.com/science/archive/2015/10/the-dark-side-of-
dna-databases/408709/)

~~~
eggie
Unfortunately you are mistaken. The problem here is not the sharing of DNA
information, but the incredibly poor resolution of the standard tests that are
used in forensics.

> Two seemingly unrelated individuals—one white and one black—shared the same
> two markers at nine of the 13 places in the standard DNA profile.

Forensic standards of identity are based on a few _hundred_ base pairs of the
three billion in each of our genomes. It is scientifically dishonest to
represent this as a conclusive test of identity. The markers are not
distributed randomly and large numbers of false positive matches against
microsattelite databases are the norm.

If the full genome sequence of an individual were the standard of truth this
would not be an issue. It would resolve the problem of mistaken DNA identity
entirely! This is the problem the EFF should seek to solve.

Try again.

~~~
Lawtonfogle
>The problem here is not the sharing of DNA information, but the incredibly
poor resolution of the standard tests that are used in forensics.

This seems like a goal post shift from 'DNA information alone cannot cause
harm' to 'sharing of DNA information alone cannot cause harm', with the alone
excluding all uses of DNA information. To me would be like arguing that giving
everyone a nuclear bomb is not harmful, it is their use of the nuclear bomb
that will cause harm. Or to generalize further, the harm is always the fault
of the last event in a chain of events, and all events leading up to it cannot
be blamed.

To make another extreme comparison, violations of the 4th amendment related to
searches aren't harmful, it is only the (mis)use of that information that is
harmful. That isn't an argument I'm buying.

