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Lawsuit targets California's demand for citizens' DNA

The state of California collects DNA from people accused of crimes even if the charges against are dismissed or the accused is acquitted.

A privacy group contends that policy violates citizens’ “strong privacy interest in their DNA.”

The state has moved for dismissal, but a new brief filed by the Electronic Frontier Foundation points out DNA “can reveal a vast array of highly private information, including family relationships, ethnicity, physical characteristics, illnesses, and genetic traits.”

“People have a right to expect that this information will remain private and out of the hands of law enforcement,” EFF argued.

“Yet, a person arrested for a felony in California must submit to the collection of their DNA, which is then sent to a state lab for analysis and generation of the individual’s genetic profile – whether they were released without charge, or the charges were dismissed.

“Once the profile is created, the state puts it into a California DNA database and automatically shares it with law enforcement agencies all over the country through an FBI-managed DNA database. It stays in the national database indefinitely and is regularly accessed and searched by thousands of other agencies.”

Of those arrested in California in 2017, more than one-third were released and never charged. But their DNA remains in police database files alongside those who were convicted, the filing explains.

And police nationwide regularly are accessing the personal information.

“These Orwellian practices must end,” EFF said.

“There’s simply no legitimate governmental purpose for keeping and continually searching the DNA profiles of people who are not convicted of any felony crime. We told the court that it must stop law enforcement from violating people’s right to privacy over their own biometric data. Arrestees who are cleared shouldn’t be marked for the rest of their lives with their genetic information being made available for any law enforcement agency to examine. They have the same privacy rights and protections as every Californian.”

The case is on behalf of the Center for Genetics and Society, the Equal Justice society and writer Pete Shanks.

The state’s lawyers told the court that there’s no basis for the concerns and the case should be dismissed.

“This is simply wrong,” the EFF explained.

The new filing states “the chemical analysis of samples taken from people who are arrested, but not charged with or convicted of a crime, reveals information that is not otherwise accessible about that person – including personal information.”

“This makes it a search and an intrusion upon the arrestee’s privacy that the state must justify under … the California Constitution.”

And the brief argues the state has no legitimate interest in DNA from those who are not charged or have had charges dropped.

Further, the retention of that DNA profile “violates the right to privacy.”

“California’s right to privacy is broader than the constitutional right against unlawful search and seizures. … The privacy provision prohibits not just unreasonable search and seizures but also any action that leads to ‘stockpiling unnecessary information,'” said the filing.