

US Supreme Court: Cops can take a routine DNA swab at time of arrest - Cadsby
http://arstechnica.com/tech-policy/2013/06/supreme-court-cops-can-take-a-routine-dna-swab-at-time-of-arrest/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+arstechnica%2Findex+%28Ars+Technica+-+All+content%29

======
rayiner
You don't have to love his politics to admit that Scalia's reasoning is,
usually,[1] a beacon of clarity: "I cannot imagine what principle could
possibly justify this limitation, and the Court does not attempt to suggest
any. If one believes that DNA will 'identify' someone arrested for assault, he
must believe that it will 'identify' someone arrested for a traffic offense.
This Court does not base its judgments on senseless distinctions. At the end
of the day, logic will [win] out. When there comes before us the taking of DNA
from an arrestee for a traffic violation, the Court will predictably (and
quite rightly) say, 'We can find no significant difference between this case
and King.' Make no mistake about it: As an entirely predictable consequence of
today’s decision, your DNA can be taken and entered into a national DNA
database if you are ever arrested, rightly or wrongly, and for whatever
reason."

Even in Lawrence v. Texas, when he was wrong (in the macro sense), he was
right in pointing out that, despite the Court's maneuvering, its opinion left
no room in the future to find gay marriage bans anything other than
unconstitutional.

That being said, I'll go ahead and be a little contrarian. Kennedy isn't
really wrong: if you accept that routine fingerprinting is okay, there is
precious little you can invoke to say that routine DNA swabbing is not okay,
other than the fact that DNA swabbing is far more effective.

The precision and effectiveness of DNA makes it scary to people, but look at
the flip side. We might actually want a world where DNA is the go-to tool for
convictions, because everything else is so much worse:
<http://lst.law.asu.edu/FS09/pdfs/Koehler4_3.pdf>. If routine DNA swabs lead
to the use of DNA evidence being routine, then juries might come to demand DNA
evidence to deliver guilty verdicts, which would marginalize the other, highly
unreliable, forensics techniques.

There is also an important fairness aspect: unlike eyewitnesses, DNA evidence
is not subject to cross-race identification bias:
[https://en.wikipedia.org/wiki/Cross-
race_identification_bias...](https://en.wikipedia.org/wiki/Cross-
race_identification_bias#Cross-Race_Identification_Bias).

[1] As long as the topic isn't drugs or homosexuals.

~~~
pyre
It's scary because while DNA is more accurate, it's not 100%. Nobody wants to
be the one that is thrown under the bus by a bad DNA result that is given more
weight than it should because, "well it's DNA, it's a fact."

~~~
rayiner
It's true that people think DNA evidence is more accurate than it is.[1] That
said, juries think all "scientific" forensic evidence is more accurate than it
is. The difference is that DNA evidence is actually pretty accurate, while
things like hair analysis are wildly inaccurate. And eyewitness testimony
tends to be insanely persuasive, even though its also insanely inaccurate.

[1] Generally, juries are instructed about random-match probabilities, but
aren't usually allowed to be told about lab error rates, which totally
dominate the random-match error rates (1-2% error in typical scenarios).

~~~
venomsnake
Why does then the defenders not attack the eye witness testimony on these
grounds - that people and memory are unreliable, so what this guy remembers
even if honestly believe so is not to be trusted? They could also throw some
Bayesian math in the mix.

~~~
jlgreco
They can attack the eye witness testimony on those grounds.

Of course if the witness is a cop (community hero!) or god forbid a girl scout
delivering cookies, then legitimately attacking the credibility of eye-witness
accounts can put you in a _very_ unsympathetic light before the jury. An
attack on the poor recall abilities of homo-sapiens becomes warped into an
attack on the character of a _plainly_ honorable witness.

Public understanding of even the basics of Bayesian thinking is _abysmal_.

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ChuckMcM
Its an interesting (if controversial) theory, that your DNA is no more private
to you than your fingerprints, and they already fingerprint you when you are
arrested and put those fingerprints into a national database.

The sticky thing for me though is that DNA not only identifies an individual,
it also identifies their parents and possibly their siblings. So now we've got
more than just our poor arrestee's id we've got some 'known acquaintences' and
it gets worse if people start getting arrested for misdemeanors just so that
the cops can take a swab to check.

No doubt there will be more to this debate before the dust settles.

~~~
npsimons
The fact that they take fingerprints and put them in a national database,
without even a _conviction_ (you can be arrested for _anything_ , and never
convicted), should worry some folks, but I suppose we gave that battle up long
ago.

~~~
grecy
> _you can be arrested for anything_

My favorite is being arrested for resisting arrest...for that arrest.

~~~
wl
You can't be arrested for resisting arrest alone. You can be charged with
resisting arrest and nothing else. This is an important distinction.

Imagine someone is suspected of murder. There is probable cause that this
person has committed a crime so a judge issues an arrest warrant. A police
officer finds this murder suspect and arrests him. The suspect resists but is
ultimately taken into custody. Under interrogation, the suspect gives an alibi
that ultimately checks out. This person isn't charged with murder because it's
apparent he didn't commit the murder. However, the arrest was legal and
resisting it was a crime. So the suspect is charged with resisting arrest with
no other charges.

~~~
mindcrime
It's all a matter of perspective. If you come to arrest me for a crime I know
I didn't commit, then no, the arrest is not "legal" per my definition of
"legal". The government might, indeed, be following it's own rules (and
getting to that on a consistent basis would be a slight improvement over where
we are now) but my rights have still been violated.

~~~
tg3
There is only one definition of "legal": allowable under the law.

The constitution and the laws of your state outline your rights (if you live
in the US). Part of the deal is that sometimes you can be arrested for crimes
you didn't commit. But that's why we make sure that people who are arrested
are guaranteed a speedy trial from a jury of their peers, etc.

~~~
jlgreco
> _The constitution and the laws of your state outline your rights (if you
> live in the US)._

It seems fairly uncontroversial that the constitution and laws are merely
_imperfect_ encodings of your rights. The encoding is necessary, since our
legal system runs on it, but due to its imperfect nature it cannot be
considered the master copy. Pre-1960s, many of our laws did not reflect what
we expect of them and as a consequence of this the rights of countless were
'legally' trampled.

Lectures about the law are rarely of comfort to those that are a victim of it.

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leeoniya
there should be a requirement to destroy the DNA if no conviction is attained.
the fact that the gov't can store your fingerprints forever simply because
someone accused you of something is insane to begin with. using this as
further justification for DNA storage is misguided.

your DNA is more private than your medical records, because much of the latter
and a whole lot more can be decoded from your DNA, maybe not now, but it will
most certainly be done in the future.

"just give us the keys to your house, we'll only use them when we (or our
associates) deem necessary"

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ctdonath
I'm a grudging holder of a view I deem the "rag doll" theory of identity &
evidence gathering: if they can get it from your limp body without coercion or
harm (needles & "intimate" contact included), they can have it. Facial photos,
fingerprints, DNA ... things which can on the whole be obtained by just
following you around (touched surfaces, fallen detritus), and which
circumstances may dictate a more manipulated form of acquisition (hold face up
for frontal photo, manipulate fingers for prints, mouth swab for DNA).
Anything involving jabbing, yanking, or threats - no. This view does presume
the existence of enough evidence for warrantable arrest in the first place,
which should entail a high legal barrier: a judicially signed warrant should
be required prior to arrest if possible, and acquired promptly thereafter if
impractical; failure to obtain one (before or after, independent of
information acquired during holding) should require immediate disposal of
anything gathered including arrest record.

~~~
chrsstrm
This might be a simplistic view, but my fingerprint is a symbol of me which
can be used to identify me. My DNA _is_ me, just the smallest piece of me that
is in fact, me. What makes taking DNA any different than taking blood, or one
of my fingers? If I were to leave DNA behind somewhere at a crime scene, I
would expect it to be gathered, but removing it from my body "routinely" rubs
me the wrong way.

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JunkDNA
As I say in a comment elsewhere in this thread, I find the dissent on this
extremely illuminating and tend to agree with it. One thing the court can't
consider right now (since it's a hypothetical future and that's rightly not
their business) is that some day, DNA sequencing is going to be dirt cheap and
super fast. It is only a matter of time. When that happens, what will the
court think about the police driving around hoovering up all the hair and
cells you shed every day? You know, just to solve those cold cases to see if
anyone turns up?

People get all worked up over automated license plate readers but the thought
of the above happening makes GATTACA
(<http://www.imdb.com/title/tt0119177/?ref_=fn_al_tt_1>) look like Disneyland.

~~~
rayiner
> When that happens, what will the court think about the police driving around
> hoovering up all the hair and cells you shed every day? You know, just to
> solve those cold cases to see if anyone turns up?

What, in itself, would be wrong with that, as long as the police were catching
people who were actually guilty?

This is kind of the same thing as the fear of self-driving cars. Why would it
be better to depend on things like eyewitness testimony (which is hugely
unreliable, especially for cross-race identifications), when we have much less
fallible DNA evidence?

~~~
JunkDNA
Well let's make it super-easy and nip this in the bud: let's just store a DNA
sequence of everyone when they are born. That way, we can skip the whole
hoovering up business and for sure identify people. Are you ok with that?

~~~
rayiner
Sure. I can easily imagine it doing more good than harm. The fact is that
police and juries, in the absence of very precise evidence, don't just go
"geez, guess we gotta leave this one unsolved." Not with families and
communities devastated by rapes, murders, etc. If they don't have precise
evidence, like DNA, they will depend on less precise evidence, like finger
prints or hair samples, or god forbid eyewitness testimony.

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malgorithms
Did anyone else here get fingerprinted in elementary school, when the cops
stopped by to say hi and talk about safety? We all were. This was in the mid
80's in Maine. I thought it was cool at the time, but I feel violated now. And
I'm pretty sure my parents weren't asked.

More to the point: how would this generation feel about the police coming to
school and taking DNA samples?

~~~
jlgreco
> _Did anyone else here get fingerprinted in elementary school, when the cops
> stopped by to say hi and talk about safety?_

Boyscout "fingerprinting merit badge". Interestingly they had us do none of
the actual requirements (well, at least from the 2003 requirements, I don't
know what they were at the time); the only thing we did was get fingerprinted
by the police.

Were it not for that, I would remain un-fingerprinted to this day. I am
somewhat upset about that.

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olympus
I think it should be pointed out that the information the police get back from
a DNA sample is NOT a fully sequenced genome. It contains enough information
to find high confidence matches, but they can't go through the information and
start looking for pepole that have rare genetic diseases or anything like
that. I still view it as a privacy issue by taking DNA from people who are
never convicted (they should delete the info of innocent people). However, DNA
samples from the police do not contain much 'confidential' beyond a
fingerprint other than determining parents/siblings/cousings.

Source:
[http://www.ornl.gov/sci/techresources/Human_Genome/elsi/fore...](http://www.ornl.gov/sci/techresources/Human_Genome/elsi/forensics.shtml)

~~~
jlgreco
You forgot the word "Currently."

------
georgehaake
Gattaca!

------
maeon3
And all politicians and senators must have their DNA samples taken and posted
online, with photo and name, as a show of good faith that it's not a big deal
to let some cancerous arm of the government keep your specific blueprint for
bootstrapping a human.

