taking and analyzing a cheek swab of [an] arrestee’s DNA is, like fingerpringting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
Justices Ginsburg, Sotomayor, and Kagan joined Justice Antonin Scalia’s dissent, focusing on the huge privacy invasion concerns represented by DNA swabbing prior to conviction.
This decision is clearly cause for concern. What's more, it should be viewed as part and parcel of a growing surveillance state, in which everyone’s bodies are cataloged, their movements tracked, and their beliefs recorded. The old idea of the Fourth Amendment, which was created specifically in order to protect us from government tyranny, is nearly dead.
Justice Kennedy, writing for the majority, acknowledged that swabbing for DNA qualifies as a search under the Fourth Amendment. However, he argues, it is a minimal intrusion and requires only a balancing of privacy concerns and legitimate government interests. He focuses on the comparison between taking DNA and fingerprinting, which is done mainly for the purposes of identifying arrestees.
The thrust of questioning and argument during oral argument belies this focus. While the government fell back on the arrestee identification argument, it initially argued that taking DNA samples would help solve unsolved crimes. Questions from several Justices in the majority made it clear that they appreciate the crime-solving aspect of DNA, beyond the identification aspect. Justice Scalia's dissent explains why this matters.
Justice Scalia was joined by three of the Court’s most liberal members in decrying the law and explaining how nonsensical the majority’s opinion is. It matters that DNA is actually being used to solve old crimes because, as Justice Scalia points out:
The Fourth Amendment prohibits searching a person for evidence of a crime when there is no basis for believing that person is guilty of the crime or is in possession of incriminating evidence.
If swabbing a cheek to test for DNA constitutes a search, when that information is then run through genetic databases, it becomes a search for the purpose of solving old crimes. What’s more, the constitutionality of fingerprinting itself has never been decided by the Court, and was not always as widely accepted as it has become over time.
Justice Scalia argued that, while the Court based its opinion on the government’s alternate argument for identification, the goal of DNA collection is ultimately to solve old crimes. Because of the way the national DNA databases are set up, he points out that is the only thing DNA samples can actually be used for.
Justice Scalia ends his scathing dissent by stating:
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.
Justice Scalia rightfully points out why the majority’s opinion is so wrong, but it’s even worse than he knows. The panopticon is here, now.
The last few years of revelations about surveillance in this country make that clear. From surveillance and repression of First Amendment protected activity to massive collection of intelligence information without any suspicion of criminal activity, we are being watched. Finally, for those who thought this only affected activists or people of color, last week's revelations put the lie to that.
For those who missed it, in the same week that the Court decided Maryland v. King, Glenn Greenwald shared a series of shocking leaks, provided by heroic whistleblower Edward Snowden, about the true extent of National Security Agency (NSA) spying in this country. To summarize, the NSA has been issuing orders to get “metadata” about all the phone calls made in this country. That metadata includes number dialed and duration of the call, and could potentially include location data for cell phones as well. Just days later, Greenwald shared documents discussing PRISM, a program that appears to allows the government to obtain information directly from the servers of some of the biggest companies in the U.S., including Google and Facebook. This could include contents of emails, chats, and more.
Finally, discussions about the surveillance state often completely ignore the existence of the Next Generation Initiative (NGI). This is perhaps because the scope of NGI is so huge that it sounds like a conspiracy theory. However, documents disclosed as a result of Freedom of Information Act litigation by the Center for Constitutional Rights, the National Day Laborer Organizing Network and the Cardozo Law School Immigration Justice Clinic show the existence of the Next Generation Initiative, “a large biometric database that far exceeds its current fingerprint collection.” It is unclear how many jurisdictions are already using NGI. The database has the capability to:
hold iris scans, photos searchable with face recognition technology, palm prints, and measures of gait and voice recordings alongside records of fingerprints, scars, and tattoos.
How exactly the Maryland v. King ruling will play out alongside these other surveillance tools is unclear. As ACLU of Northern California attorney Michael Risher notes : "it is important to remember that Maryland’s law is very different from the laws of other states." While the Court's opinion focused on the specifics of the Maryland law, the Court laid out few guidelines for how, exactly, DNA collection needs to be regulated in order to be constitutional under this decision.
Much like any other technology, it is certain that law enforcement will push the constitutionality of this tool as far as they can, regardless of the privacy and civil liberties that are so clearly at stake.
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