
EFF to Supreme Court: The Fourth Amendment Covers DNA Collection - DiabloD3
https://www.eff.org/press/releases/eff-supreme-court-fourth-amendment-covers-dna-collection
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lettergram
Although I agree with the EFF, I question the legal argument, and whether or
not the case will be in their favor.

(1) Although DNA should be protected in the sense the government cannot take
it from you, without a warrant (or claims your a terrorist). It's difficult to
argue that if some hair falls off my head in public, should it not be
considered "fair game"? Picking up papers out of the trash has always been
fair game for law enforcement, so why should the hair be different?

(2) Unreasonable search and seizure is relative, it's not _reasonable_ to
pluck a hair off someones head. The same way you cannot go through someones
office without _reason_. However, if someone disregards the hair, then it does
seem _reasonable_ to take the hair, because it is not invading a persons
time/space/property/anything.

(3) It is a powerful tool to fight illegal activity. I have trouble believing
a judge doesn't/wont (to some point) empathize with this and have a slight
bias.

I find mass DNA collection very scary, but I don't know if this is fully valid
or winnable case.

~~~
parineum
I don't see how this would be different from lifting fingerprints from a
discarded cup. Does that happen in real life or is that just a movie/tv thing?

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MarcScott
The difference is that lifting fingerprints can only tie you to a crime scene.
In this case the DNA evidence tied him to the actual crime.

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aapierce
What about the DNA tied him to the crime as opposed to the just the crime
scene? The article doesn't really go into that.

If they're just comparing the DNA that was left behind at the police station
to DNA they found at a crime scene, I don't see any issue.

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MarcScott
This was a rape case. Leaving fingerprints or even DNA on a bloody knife can
only confirm you picked up the knife, and therefore that you were present at
the scene. In this case the DNA identified him as the perpetrator of the
crime.

IMHO the EFF have chosen the wrong case to fight here.

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SoftwareMaven
You can't choose what cases will set precedence, and, once set, it is very
difficult to "unset".

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bmelton
Lawyers can and do choose which cases will be set for precedent all the time.
It's somewhat difficult to ensure that your case is the only one going after
the said precedent at the right time, but just about any time a new law is
passed that people object to, lawyers begin shopping for ideal candidates and
then determining the best ways for them to break the law in the least damaging
way, and in the best possible district to get the law deemed unconstitutional.

This typically happens with civil rights cases, and it's worth noting that
there are certain legal groups that are better at it than others -- the Second
Amendment Foundation is exceptional, and it's a large part of why their win
record is so good.

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TeMPOraL
Genetic material is funny. On the one hand, it's as personal and private as
things can get. Your DNA is basically _you_. But on the other hand, it's also
the most public thing about you. It's a biological equivalent of an open,
unencrypted radio broadcast. You leave it absolutely everywhere all the time -
you can actually imagine a mist of your genetic material floating behind you
as you walk around. Dead skin cells, hair, whatever you excreted through sweat
- you leave it on everything you touch or otherwise interact with, be it
public or private property, or other people.

I'm having trouble reconciling those two views and developing intuitions
around how we should handle it.

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SoftwareMaven
I've been listening to Alastair Reynolds _Blue Remembered Earth_ and _On the
Steel Breeze_. The notion of ubiquitous surveillance is an underlying concept,
affecting how characters can behave as the plot moves forward. While it is an
underlying concept, I'd love pointers to books where this concept is taken
head-on.

So far, I don't see how we can avoid ending up with a "surveilled world",
though it scares me to death (we don't have the benevolent AI overseer to
watch it). With the progress of technology coupled with ubiquity of networks,
it is going to be hard to avoid.

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JoeAltmaier
Other considerations aside, DNA analysis is so easy and getting so cheap, its
inevitable it will be used in every facet of our lives. So learn to live with
it. Or become a luddite hiding in a cave.

~~~
patcon
Even though you're at the bottom of the comments, I'm inclined to agree. In
case you're interested, here's an discussion of how this trend might at least
be amenable to creating unique cryptographic IDs without the need for central
governance.

[https://github.com/MrChrisJ/World-
Citizenship/issues/22#issu...](https://github.com/MrChrisJ/World-
Citizenship/issues/22#issuecomment-62255242)

~~~
JoeAltmaier
As a password, biometrics are notoriously inappropriate (have to use the same
one for everything; can't change at will; leave it in the open all over the
place). But maybe as a sort of username?

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Roy78
Ancient daily reader/lurker here (even far before my registration date). I
want to chime in because this is my area of expertise.

Disclaimer: I stand neutral in this issue; however, DNA/law is what I
currently do for a living.

While it is true on the most basic level that law enforcement do 'collect' and
'store' information about 'who we are,' 'where we come from,' and 'who we will
be.' It is only true because crime labs are typically required to store
samples long term (mostly because of an idea that in the future, technology in
the future will provide better discriminatory power, and for quality control
testing/confirmations).

Law enforcement does not process DNA samples in the way that the article
suggests, in fact, the vast majority of the time (and legally, this varies
state by state), crime labs only use DNA typing technologies that produce
information that is limited to "identifying an individual." What this means is
in the most elementary way, is that the data generated from DNA samples used
in law enforcement today, only contains information equivalent to a
fingerprint. DNA samples processed in crime labs (the vast majority of the
time) is based on STR technologies and (again, most of the time) it is
unlawful for crime labs or law enforcement agencies to use this identifying
information any further than the capacity to identify the "who" which is most
of the time only searched in a database of convicted offenders, detainees, sex
offenders, and/or arrestees.

So no, law enforcement agencies aren't generating/processing information
different in capacity to that of a fingerprint.

Is it lawful to collect a fingerprint (or in this case a STR DNA profile)
without a warrant or probable cause? I think so, but in their minds searching
"forensic unknowns" to a database such as CODIS (you'll have to google this)
to generate investigative leads is paramount to finding unconvinced offenders.

Example: Bob is arrested in 2015 for burglary and has a history of
misdemeanors the past 10 years. DNA is collected for forensic evidence of this
burglary to build a case to convict him of this crime. His DNA profile is
searched in CODIS and happens to hit to an unsolved rape case in 1998. His DNA
profile matches that found on a vaginal swab of the rape victim. Bob will now
be charged with rape in 1998, but who would have otherwise gotten off scott
free for the rape if it weren't for CODIS.

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arthurcolle
I'm really not trying to stir the pot and get any vitriol but I'm genuinely
curious: do organizations like the ACLU, EFF actually get things done?

There has been pretty much no change in the state of affairs with regard to
NSA mass surveillance, and the same can be said for RIAA DRM technologies
continually pushed forth in the mass market. Everytime I see an EFF related
article here or on reddit, I just get the sense that it accomplishes nothing
real. Maybe things would be different if the big tech giants started suing the
agencies and the US federal government for various abuses, but even then, it
wouldn't make sense for them to attempt this because of legal backlash from
the US (or other more insidious forms of backlash...) All in all, it feels
like quite an unwinnable struggle.

~~~
adventured
The serious answer is: very rarely they win important victories. It does
happen though. Most of the time they spend their very limited resources
fighting uphill battles against a government with nearly unlimited resources
(and an ever expanding legal basis for their increasingly vast powers). While
the EFF is trying to check the government over here, the government is over
there expanding laws in their favor.

The government system of the US is now the size of Japan's entire economy
fiscally. I don't see how that is ever going to be contained. There's no way
to pass enough controls or restrictions to hold something that massive in
place, and there's no way to afford to monitor all the restrictions even if
you got them into place.

The other problem I rarely see addressed is culture. No two governments are
the same. The US is an aggressive government, that is its culture (at least
since WW2 or so), and that will be very, very difficult to change. Some people
naively think you can trust a large government like the US Govt., as you might
Sweden's government - but that ignores the fact that their cultures are
drastically different.

Orgs like the ACLU and the EFF are very valuable institutions, and they're
trying to do what few others are. The odds are severely stacked against them,
but given the context is so extraordinarily important, it remains worth
fighting for. Maybe all they can accomplish is to slow the process of rights
erosion down, that too is valuable (some of course argue it'd be better to
accelerate the implosion instead, rather than have a long slow erosion).

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bayesianhorse
Protection from DNA collection is impossible, for the same reason the EFF
wants to forbid it: We shed DNA all the time.

Currently, DNA does not contain "vast amounts of private information", and
even the little amount we can get from it requires serious science and
hundreds if not thousands of Dollars per sample to retrieve it. Currently it
is more effective to prohibit specific abuses, like insurance tests.

In the future, DNA data will be as cheap and obvious as fingerprints, gender
or body height. DNA sequencers will pick up human DNA all the time even by
accident. Therefore, DNA and its information will be in plain sight, if we
like it or not.

Fighting DNA collection will be a lot like fighting copyright piracy. The
information is copied and distributed so easily, no way we can keep our DNA
private.

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IvyMike
Presumably we have the fourth amendment in the first place because we saw the
dangers of living in a surveillance state.

Now that technology has given us multiple end-runs around the fourth
amendment, it would be to our benefit to look how to preserve that original
intent.

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SquidMagnet
How do we ensure a proper association between the samples taken and the person
in question, in particular as described in the case from the article,
especially without some sort of formal framework and authorization before
hand?

~~~
pdabbadabba
tl;dr - It would be a huge coincidence if you found DNA that matched the
actual perpetrator despite the fact that you collected it in the course of
following the wrong guy, or canvassing for DNA at random.

Usually this happens by way of other non-DNA evidence. Imagine: you pick up a
hair (or swab a coffee cup, whatever) in public that you believe (but, to your
point, do not _know_ ) to be from your suspect. You take it back to the lab
and, sure enough, it matches your sample from the crime scene.

Now, if you know nothing about the people in the vicinity of there you picked
up your test hair, and were just randomly canvassing for DNA, this might not
prove much. But presumably you were following a particular person, whose hair
you tried to collect because you also have other evidence against him (though
probably none so strong as DNA identification). This puts you in a very
different epistemic situation with respect to that hair. Now you know that you
picked up a hair in an environment full of people, only one of whom was a
suspect in your investigation. It so happens that this hair matches a hair
from the crime scene. It is, of course, _possible_ that you picked up an
unknown person's hair, and that person just happened to be your culprit -- but
it is far far more likely that the hair you got is from your suspect, since
he's the only one in the area believed to have any relationship at all to the
crime.

(Of course, there could be situations that confound this analysis, for example
if you collect hair at the end of the day from an interview room that's been
used to question a bunch of suspects in the same crime. But law enforcement
will not usually be this sloppy. They are well aware of the need to positively
associate a hair with a particular person.)

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spacemanmatt
Advantage: Identical twins.

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artenix
I don't live on USA. But having watched Law & Order, C.S.I., et. al. I thought
this use of DNA was very common.

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sigzero
I don't think it does if you leave it in a public place like a restaurant.

