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Can the Government Collect Your DNA Without a Warrant? SCOTUS Will Decide.

The Supreme Court will review a decision that says officials can't collect warrantless DNA samples from arrestees pre-conviction.
 
 
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Later this month, the Supreme Court will review a case determining whether government officials have the right to take warrantless DNA samples from people they arrest pre-conviction. In the weeks leading up to the hearing, parties on both sides of the case have made arguments weighing the importance the of law enforcement power with Americans’ privacy rights. 

In a filing, the Electronic Privacy Information Center (EPIC) argued that collecting and retaining DNA samples from arrestees “constitutes an unreasonable search and seizure under the Fourth Amendment because it poses unnecessary and ongoing risks to privacy without serving any legitimate government interest.

The Obama administration disagrees with that assessment. It filed a statement arguing that mandatory DNA swabbing, and the information obtained from DNA profiles represents a “minimal incursion on an arrestee’s privacy interests,” downplaying the swaths of personal information the government gathers when it takes DNA samples. The administration is appealing to a previous prosecutor’s argument that DNA swabbing is no more intrusive than routine fingerprinting.

But EPIC notes the extraordinary amount of personal information the government gets from collecting an arrestee’s saliva. The filing cites a Human Genome Project report that says that, whereas fingerprints merely reveal an individual’s identity, DNA samples “can provide insights into a person’s family, susceptibility to particular diseases, legitimacy of birth, and perhaps predispositions to certain behaviors and sexual orientation.”

The Supreme Court’s hearing will focus on Maryland Court of Appeals decision that said arrestees have a “weighty and reasonable expectation of privacy against warrantless, suspicionless searches.”

A Maryland man named Alonzo King brought the Maryland case to light. Officials collected DNA from King on assault charges in 2009, and law enforcement later used the sample to tie him to an unsolved rape case from 2003. Maryland’s state court said officers violated King’s Fourth Amendment rights, but that decision could be overturned by the Supreme Court of the United States.

Either decision would have a huge impact on genetic privacy in this country. As Wired’s David Kravets points out, at least 27 states require law enforcement take DNA samples after arrests, even if the arrestee isn’t convicted.

In a January 2012 privacy case, the Supreme Court ruled that police must get a warrant to plant GPS tracking devices on a person’s car. But the justices split on whether GPS tracking represented an “unreasonable search,” and therefore a Fourth Amendment violation.

Deciding whether to review the case, Chief Justice John Roberts appealed to law enforcement’s argument for mandatory, pre-conviction DNA collection, calling it “a valuable tool for investigating unsolved crimes.”

The hearing is set for February 26.

Steven Hsieh is an editorial assistant at AlterNet and writer based in Brooklyn. Follow him on Twitter @stevenjhsieh.