DNA Database Privacy Issues

Information & Communications Technology Law
ISSN: 1360-0834 (Print) 1469-8404 (Online) Journal homepage: https://www.tandfonline.com/loi/cict20
Privacy issues with DNA databases and

retention of individuals' DNA information by
law enforcement agencies: the holding of the
European Court of Human Rights case S and
Marper v. United Kingdom should be adapted to
American Fourth Amendment jurisprudence
Michael Lwin
To cite this article: Michael Lwin (2010) Privacy issues with DNA databases and retention of
individuals' DNA information by law enforcement agencies: the holding of the European Court
of Human Rights case S and Marper v. United Kingdom should be adapted to American Fourth
Amendment jurisprudence, Information & Communications Technology Law, 19:2, 189-222,
DOI: 10.1080/13600834.2010.494061
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Published online: 20 Aug 2010.
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Information & Communications Technology Law
Vol. 19, No. 2, June 2010, 189–222
Privacy issues with DNA databases and retention of individuals’ DNA

information by law enforcement agencies: the holding of the European
Court of Human Rights case S and Marper v. United Kingdom should be
adapted to American Fourth Amendment jurisprudence
Michael Lwin*
Arnold & Porter LLP, Washington, DC, USA and Georgetown University, Berkley Center for
Religion, Peace, and World Affairs, Washington, DC, USA
When law enforcement agencies collect, retain, and use individuals’ DNA
information in DNA databases for crime prevention purposes the presumption of
innocence is reduced for those individuals. Collection and use of DNA
information has benefits, greatly assisting law enforcement agencies in their
criminal investigations. However, problems arise when DNA information is
retained and used for individuals who have been acquitted, have had the charges
pressed against them dropped, have been arrested for crimes short of violent or
sexual felonies, or have served out the term of their sentence. While federal law
has expungement provisions for individuals who are ultimately not convicted,
state laws on expungement are often silent or inadequate. In order to prevent the
presumption of innocence from being significantly eroded by the improper use of
DNA information, US courts should adopt the test elaborated in the European
Court of Human Rights case S and Marper v. UK, which may require law
enforcement agencies to expunge their databases of DNA information of
individuals depending on the individuals’ statuses as arrestees, non-convicts,
convicts, or ex-convicts, and in consideration of the severity of the offense alleged
which provided the law enforcement rationale to extract the individuals’ DNA.
Adoption of the Marper test will allow US courts to balance the interests of the
government in crime prevention and criminal investigation against the privacy
interests of the individual citizen with a degree of far greater nuance than the
sledgehammer alternative, namely, the universal DNA database proposed by
Yale Law School Professor Akhil Amar and Paul Monteleoni.
Keywords: comparative law; privacy; constitutional law; DNA; DNA databases;
fourth amendment; criminal procedure; European Court of Human Rights
1. Introduction
A New York Times article published on 18 April 2009 noted
law enforcement officials are vastly expanding their collection of DNA to include
millions more people who have been arrested or detained but not yet convicted . . . .
Until now, the federal government genetically tracked only convicts. But starting this
month, the Federal Bureau of Investigation will join 15 states that collect DNA samples
*Email: mlwin823@gmail.com
ISSN 1360-0834 print/ISSN 1469-8404 online

Ó 2010 Taylor & Francis
DOI: 10.1080/13600834.2010.494061
http://www.informaworld.com
190 M. Lwin
from those awaiting trial and will collect DNA from detained immigrants – the
vanguard of a growing class of genetic registrants. (Moore, 2009)
Supposedly, the FBI’s actions are ‘intended to help solve more crimes’, but they are
also ‘raising concerns about the privacy of petty offenders and people who are
presumed innocent’ (Moore, 2009). While there is a rationale for retaining DNA
information for those individuals who have been convicted of crimes – ‘courts have
generally upheld laws authorizing compulsory collection of DNA from convicts and
ex-convicts under supervised release, on the grounds that criminal acts diminish
privacy rights’ (Moore, 2009) – privacy interests are not similarly diminished for
individuals who are ultimately not convicted of any crime (Henning, 2009, p. 2).
Federal law takes into consideration non-convicted individuals’ privacy interests,
requiring the FBI to expunge DNA profiles from its DNA database for people who
receive acquittals, have had pending charges dismissed, or whose convictions are
overturned. (42 U.S.C. x14132(d)). However, many state laws do not provide
expungement provisions or have inadequate expungement provisions (Coolidge,
2009; Richmond, 2009) (‘The American Civil Liberties Union of Ohio opposes the
measure, saying it poses a ‘‘myriad of civil liberty risks’’ including violating a
person’s constitutional protections against illegal search and seizure, is ripe for abuse
and is an invasion of privacy’). As of 2008, Colorado, Florida, Kansas, Mississippi,
Ohio, Tennessee and Washington have no expungement provisions (The American
Society of Law, Medicine, and Ethics, 2006). Alabama, Arizona, Maine,
Massachusetts, Montana, Nevada, Texas, and Wyoming only expunge the record
and do not or are silent on the issue of expunging the DNA sample. While states that
access data from the FBI’s DNA database must also comply with the expungement
provisions of federal law, the expungement provisions do not apply to those state
DNA databases that do not. Furthermore, expungement is not mandatory for non-
convicted individuals for state databases, but is only imposed on those state DNA
databases falling under the federal law upon request or order (42 U.S.C.
x14132(d)(A)–(B)). Due to the spotty enforcement of expungement by the states,
this paper recommends that states pass laws closing this gap and that the courts
speed up this process by judicially prevent indefinite retention of DNA records for
certain offenses and non-convicted individuals.
Over time, federal and state DNA collection laws have expanded to allow DNA
collection for crimes less severe than serious felonies and have allowed indefinite
retention of DNA information for arrests alone (Axelrad, 2008, p. 3). Federal law
and most states authorize compulsory collection of DNA samples from individuals
convicted for specified criminal offenses, including all felonies in most jurisdictions
and extending to misdemeanors, such as failure to register as a sex offender or crimes
for which a sentence greater than 6 months applies, in some jurisdictions (Henning,
2009). The DNA Analysis Backlog Elimination Act 2000 authorizes compulsory
DNA collection from individuals in federal custody, including those detained,
arrested, and from individuals on release, parole, or probation (42 U.S.C. x14135a).
A growing number of states authorize compulsory collection from arrestees
(National Conference of State Legislatures, 2010). The problem with this trend is
that DNA information poses a severe infringement of an individual’s privacy
interest, which demands that the seriousness of the alleged offense be great in order
to justify DNA collection. Yet collection of DNA is allowed for a range of offenses
lesser than serious felonies.
Information & Communications Technology Law 191
The United States Supreme Court has recognized a presumption of innocence

for criminal defendants since at least 1895. The presumption of innocence places
the burden of proof on the prosecution to produce sufficient evidence such that a
jury or judge can infer from the evidence adduced that the defendant is guilty of
the offense in question beyond a reasonable doubt. US courts have long assumed
the constitutionality of the presumption of innocence and the beyond a reasonable
doubt standard. However, the advent, use and expansion of DNA databases by
law enforcement agencies threaten both the presumption of innocence and the
beyond a reasonable doubt standard. Retention of DNA profiles amounts to a
reduction of the presumption of innocence. DNA information can be very
accurate and extremely probative as to a defendant’s guilt. DNA profiles can be
used by law enforcement agencies to reduce the presumption of innocence in two
ways: (1) by lessening the fact-finding burden, where authorities collect evidence
prior to knowing the identities of any potential suspects; and (2) a scrutiny
burden, where authorities must collect evidence and interview witnesses in order to
decide which persons to label as suspects. The presence of DNA profiles greatly
lessen these two burdens, because the ability of law enforcement agencies to cross-
reference DNA evidence collected at a crime scene against their own DNA
databases provides the possibility for law enforcement agencies to receive
extremely probative evidence with relatively little effort. While economically
such searches may reduce the cost of law enforcement, trading off the social cost
of the loss of privacy for individuals whose DNA information is on file outweighs
the monetary savings, particularly when the burden is on the government and its
law enforcement agencies to meet its production burden. The individual has no
responsibility to aid them in meeting that burden. If an individual has been
acquitted of a crime or the charges have been dropped against her, the
prosecution’s burden of production should not be made easier for the next
possible instance, and federal law rightly has expungement provisions that codify
this idea. State law should follow suit.
Where individuals have been acquitted or have had charges dropped against
them, the extraction and continued retention of their DNA information amounts to
an involuntary intrusion of their privacy and a circumventing of the presumption of
innocence. Even regarding DNA profiles of individuals who have been successfully
convicted, retention of DNA information may be inappropriate, depending on the
offense for which the individual was ultimately convicted. Some jurisdictions allow
DNA retention for less serious felonies, including misdemeanors.1 It cannot be said
that indefinite retention of very sensitive personal information can be justified on the
grounds of commission of a relatively minor offense. Some courts have explained
such continued retentions on the grounds of a ‘diminished privacy interest’ of an
individual after conviction, but this judicial doctrine is flawed because the
‘diminished privacy interest’ only has one layer: once an individual is in
the ‘diminished privacy interest’ box, indefinite DNA retention is allowed. The
‘diminished privacy interest’ and ‘special need’ tests currently used by US circuit
courts and discussed further in Section 4 lack sophistication and require the addition
of a sliding scale, i.e. privacy interests diminish incrementally depending on the
severity of the offense. This paper recommends that the Supreme Court adopt the
rule put forth in the European Court of Human Rights case S and Marper v. UK,
which may demand expungement of DNA information depending on the status
of the individual – acquitted; charges dropped; convicted; the seriousness of the
192 M. Lwin
crime – in effect, adding incremental degrees to the retention and possible

expungement of DNA information.
This paper will address the privacy issues that arise in the collection, retention
and use of DNA information by law enforcement agencies. Section 2 maps a brief
history of the presumption of innocence and the beyond a reasonable doubt
standard, and looks to the history of fingerprinting and fingerprint records for
possible guidance with DNA databases. Section 3 features an analysis of the Marper
decision of the European Court of Human Rights and argues that underlying the
Court’s holding in Marper is the idea that retention and use of DNA information
lowers the presumption of innocence for the class of persons whose DNA has been
collected by law enforcement agencies, and for eventually non-convicted individuals
and for some convicted individuals as well such retention and use is an improper
infringement of their privacy interests. Section 4 advocates for application of the
Marper test to the tests currently used by US circuit courts in handling DNA
database issues and details how the Marper test can be adapted to the US context.
Section 5 discusses whether a proposal by Yale Law School professor Akhil Amar to
have compulsory universal DNA extraction by every US citizen is an appropriate
solution to the problem of lowering the presumption of innocence. This paper argues
that while Amar’s proposal works to eliminate the presumption of innocence
problem distinguishing those whose genetic information is in the DNA database and
those whose genetic information is not, it creates a greater threat to the US citizens’
privacy by presumptively lowering the presumption of innocence for all citizens. The
Marper test as adapted to US jurisprudence is a preferable solution than taking the
drastic step of creating a universal DNA database.
2. The presumption of innocence and the beyond a reasonable doubt standard

2.1. Overview of the presumption of innocence and the beyond a reasonable doubt
standard
The United States Supreme Court first addressed the presumption of innocence in
1895 in Coffin v. United States. The Court drew on Athenian and Spartan law and
commented, ‘the principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its enforcement lies at
the foundation of the administration of our criminal law’ (p. 453). In defining the
presumption of innocence, Coffin distinguished it from the standard of ‘beyond a
reasonable doubt’, saying the presumption of innocence
is an instrument of proof created by the law in favor of one accused, whereby his
innocence is established until sufficient evidence is introduced to overcome the proof
which the law has created. This presumption on the one hand, supplemented by any
other evidence he may adduce, and the evidence against him on the other, constitute the
elements from which the legal conclusion of his guilt or innocence is to be drawn.
(p. 459)
Concluding that the presumption of innocence ‘is evidence in favor of the accused
introduced by the law in his behalf’ (p. 460), the Court then turned to the definition
of a ‘reasonable doubt’. The Court found that while the presumption of innocence
places a burden on the state to produce evidence, a reasonable doubt is, by contrast,
‘the condition of mind produced by the proof resulting from the evidence in the
cause’ (p. 460).
The Supreme Court revisited standard-of-proof issues in 1970 in the landmark

case In re Winship. The Court in In re Winship found that it was long assumed that
‘proof of a criminal charge beyond a reasonable doubt is constitutionally required’
(p. 362). Justice Harlan’s concurrence in In re Winship contains a famous passage
where he declares ‘I view the requirement of proof beyond a reasonable doubt in a
criminal case as bottomed on a fundamental value determination of our society
that it is far worse to convict an innocent man than to let a guilty man go free’
(p. 380).
The presumption of innocence is an essential component of the administration
of US criminal law. The prosecution’s production burden is a legal rule rather than
a rule of perception, as an average citizen is likely to infer that the defendant in
question has committed the crime from the facts that he or she has been arrested,
charged with an offense and is before a judge and jury in a court of law. The legal
rule of the presumption of innocence is a safeguard against the expected inferences
of the average citizen by relying on the assumption that it is more likely that a
given citizen has not committed a crime than has committed a crime, and since the
state is asserting the power to potentially limit the individual’s freedom of
movement and brand him or her with the stigma of criminal sanction, then the
state should have the sole burden of producing enough evidence from which a jury
can infer legal guilt. The question in the context of DNA information, then, is
whether the evidentiary production burden the presumption demands can be made
easier for the government by allowing it to retain samples of individuals’ personal
information in order to streamline the fact-finding and scrutiny processes of
criminal investigation. A starting point for such an inquiry is in the fingerprinting
context, a piece of forensic evidence that has been a hallmark of criminal
investigation for many years.
2.2. Comparing and contrasting fingerprints and DNA

2.2.1. Fingerprints and DNA and other biometrics overview
Both fingerprints and DNA are types of biometrics. Biometrics is the measurement
of human characteristics thought to be unique and thus is seen as a trustworthy
way of identifying people (Dwyer, 2008). Biometric data currently includes digital
images of faces, fingerprints, palm patterns, iris scans, face-shape data, scars
(Nakashima, 2007) and DNA (Jain, Ross & Prabhakar, 2004, pp. 4–20). The
technology will only continue to evolve over time and may perhaps include the
unique ways people walk and talk (Nakashima, 2007). The FBI has awarded a
US$1 billion dollar, 10-year contact to aerospace and defense technology company
Northrop Grumman to develop an extensive database that will collect biometrics
data sent by local, state and federal authorities (O’Harrow & Nakashima, 2008).
Advocates for the database argue that in this post-9/11 world a centralized
database from a wide variety of sources will make it easier for law enforcement
agencies to quickly and efficiently retrieve unique information that will increase the
chances of catching criminals (Nakashima, 2007). For example, in 2006 and 2007
the Defense Department has been collecting biometric data including images of the
fingerprints, irises, and facial structures of more than 1.5 million Iraqi and Afghan
detainees, which in turn have been matched against the FBI’s criminal fingerprint
database (Nakashima, 2007).
194 M. Lwin
Biometric data is becoming more and more accepted by the US public and more
and more encouraged by law enforcement agencies and politicians. Early state laws
governing forensic databases limited collection and retention of DNA samples, for
example, to sexual offenders (Simoncelli, 2006, p. 309). However, the ACLU notes
that today 43 states collect DNA from all felons, 28 states from juvenile offenders,
and 38 states from violators of certain categories of misdemeanors (Simoncelli,
2006). Virginia, Louisiana and Texas have authorized or are in the process of
authorizing DNA retention merely for arrests for certain offenses. At the federal
level, the DNA Fingerprint Act of 2005 was signed into law as Title X of the
Violence Against Women Act (VAWA). The bill rider was not the focus of a single
hearing (Simoncelli, 2006).
As a companion database of sorts to the biometrics repository, the Department
of Justice is building upon a fledging system called the National Data Exchange, or
N-DEx. (O’Harrow and Nakashima, 2008). N-DEx will consolidate enormous
caches of local and state records for fast and automatic retrieval upon need by law
enforcement authorities. It will probably resemble a preexisting commercial data-
mining system that nearly 1600 law enforcement agencies currently use. Dubbed
Coplink, the system allows police investigators to browse nicknames, height, weight,
color of hair and type and placement of tattoos, relationships among suspects, and
connections among people, places and events, among other things.
One of the major advantages of both databases is the speed and efficacy by which
law enforcement officials can obtain information on suspects and criminals. Before,
police investigators were forced to follow an obscure paper trail in search for a
relevant lead. Communicating with other jurisdictions took several phone calls and
sometimes required a wait for a shipment of records to arrive, or a lengthy travel to
another jurisdiction to search their records. Now, what took weeks can now
take minutes, with the quick search capabilities of the Internet and electronic
databases.
Pushing back against this law enforcement rationale are concerns by privacy and
civil liberties organizations such as the American Civil Liberties Union (ACLU).
There is a concern that the information may be incorrectly entered into the database,
leading to wrongful accusations of otherwise innocent people. Tania Simoncelli,
ACLU science advisor, notes ‘in the last few years we have entered into a whole new
era of forensic DNA, one where scores of innocent people are getting roped into the
criminal justice system by way of their DNA’ (Williams, 2007). Without
transparency, there is also a potential of abuse and misuse of the information by
those authorities in control over it (O’Harrow and Nakashima, 2008). One example
of this potential for abuse is a Coplink product called Intel Lead, which enables
certain people with the ‘proper authority’ to enter new information, tips or
observations into data warehouses. According to Robert Griffin, CEO of Knowledge
Computing, this becomes ‘de facto intelligence that’s actionable’ (O’Harrow &
Nakashima, 2008). Some police agencies have already responded to these concerns
under the Coplink system by segregating general law enforcement information from
data collected on gangs, drug dealers, and other forms of organized crime, so as to
prevent accidental or incidental spillover between the two sources of data (O’Harrow
& Nakashima, 2008). However, without a transparent protocol for managing the
data, this creates a presumption of trustworthiness for law enforcement agencies to
properly manage their data that may not be tenable given the extensive breadth of
information being stored in these databases.
2.2.2. Fingerprints overview

Fingerprints have long been used for crime prevention and criminal investigative
purposes. The FBI has been collecting fingerprint cards since 1924, resulting in a
total of over 200 million fingerprint cards today (Brislawn, 2002). Fingerprinting
measures the ridge patterns of the fingertips by mapping the points where individual
ridges start, stop or branch off. Fingerprints have the advantage of a long-standing
history and working procedure that has been refined over time. A set of 10 prints
yields highly accurate results. Fingerprinting requires physical contact with a sensor.
The act of being fingerprinted may have a negative stigma because of its association
with arrest, crime and law enforcement. Also, digitization of fingerprints proves to
require much disk space and may bog down law enforcement intranets (Brislawn,
2002). The Department of Homeland Security has recently begun collecting
fingerprint data from international visitors at Washington Dulles International
Airport (Office of the Press Secretary, 2007).
The limits under which fingerprints may be extracted were set forth in the case
Davis v. Mississippi. In that case, a rape victim described her assailant as an African-
American youth. The defendant along with several other young African-Americans
was taken to a police station without a warrant where he was questioned,
fingerprinted, and released. The police rearrested the defendant and took his
fingerprints again. The defendant’s second set of prints matched fingerprint evidence
taken from the rape victim’s window and were subsequently admitted into evidence
at trial. The defendant argued that the exclusionary rule in the Fourth Amendment,
stating that all evidence obtained by searches and seizures in violation of the
Constitution is constitutionally inadmissible (p. 724), applied to the fingerprint
evidence and further that both arrests were unreasonable seizures. On final appeal
the Supreme Court agreed with the defendant, holding that since the defendant’s
detention by the police was unlawful, his fingerprints were obtained in violation of
the Fourth and Fourteenth Amendments and were inadmissible at trial. The Court
stated that the Fourth Amendment was ‘meant to prevent wholesale intrusions upon
the personal security of our citizenry, whether these intrusions be termed ‘‘arrests’’ or
‘‘investigatory detentions’’’ (pp. 726–727). The Court further stated that ‘[d]etentions
for the sole purpose of obtaining fingerprints are no less subject to the constraints of
the Fourth Amendment’ (p. 727).
2.2.3. DNA overview

Deoxyribonucleic acid (‘DNA’) is an organic chemical of complex molecular
structure that is found in all organisms (Encyclopædia Britannica Online, 2010). The
information in DNA contains genetic information for the transmission of inherited
traits. Each person has DNA expressing a unique genetic code in every cell nucleus
and mitochondria in his or her body. (Monteleoni, 2007, p. 250). DNA can be
obtained, for example, from a person’s blood, saliva, hair, skin flakes, or other body
tissue or fluids (Monteleoni, 2007, p. 251).
Forensic law enforcement authorities analyze each DNA sample at thirteen
locations on the DNA molecule. The number of repeating chemical bases at each
location contributes to a DNA profile. This method, called Short Tandem Repeats
(STRs), is meant to keep anonymous or unknown the person’s genetic traits. The
assumption supporting this conclusion is that the locations analyzed are believed to
196 M. Lwin
be ‘junk DNA’, containing no genetic information of significance, e.g. evidence of

congenital disease or defect. (Monteleoni, 2007, p. 251). However, the status of ‘junk
DNA’ as junk is debated; proponents assume that future scientific research will not
reveal junk DNA to contain significant information, an assumption that is likely to
prove false, given more and more reports that junk DNA is being revealed as
materially significant DNA as more time passes and scientific research advances.2
Additionally, some DNA profiles do contain information regarding materially
significant DNA and DNA previously thought to be merely junk DNA,
(Monteleoni, 2007, p. 251) supporting the inference that future scientific research
will be able to uncover even more essential information in formerly ‘junk DNA’.
All fifty US states mandate DNA collection for certain criminal convictions for
storage on a DNA database (Monteleoni, 2007, p. 252). The federal Combined DNA
Index System (CODIS) is a network allowing the sharing of DNA profiles from state
to federal law enforcement agencies (Williams, 2007). CODIS has a 4.7 million
convicted offender index and a forensic index with 183,000 profiles. On the state
level, what is put into the CODIS database largely depends on jurisdiction. For
example, some states enter only the DNA of persons convicted of certain felonies,
some enter convicted felons, and some include some misdemeanors (Williams, 2007).
2.2.4. Fingerprints and DNA: a comparison

Retention of DNA information presents a much greater intrusion of privacy than
retention of fingerprints. Fingerprints only have one dimension of information,
whereas DNA can reveal information of the individual’s race, gender, and some
aspects of his or her genetic disposition. DNA evidence is also considered to be much
more probative than fingerprint evidence. While fingerprints can only be used to
identify an individual, DNA profiles can be used to determine blood relations,
gender, race, and some congenital diseases (Nussbaum, 2001). Contrary to some
commentators,3 this amounts to more than a ‘light’ burden on privacy. While courts
have accepted fingerprinting and retention of fingerprint records, retention of DNA
information is distinguishable from fingerprint records. Whereas fingerprint records
contain only one dimension of benign data, DNA profiles contain significantly more
personal information. Furthermore, DNA profiles can be used to pick up a wide
range of information: blood, tissue, hair, sweat, skin flakes, any kind of organic
material intrinsic to the human body. Fingerprint records are only useful in
comparing a valid fingerprint taken from a crime scene. The potential for reduction
of the presumption of innocence for those individuals who have DNA information
held by law enforcement agencies is much greater. This problem is exacerbated by
the fact that law enforcement agencies are increasingly retaining DNA information
of people who have not been convicted of any crime, but have only been arrested.
Additionally, all states but Wisconsin’s criminal statutes (Wis. Stat. x165.77(3))
allow retention of the DNA cell samples themselves – these samples self-evidently are
not limited in content as the DNA profiles are, containing all of an individual’s
DNA. Indefinite retention of DNA information on this ground alone is insufficient
to warrant the reduction in the presumption of innocence vis-à-vis the general
population who have not submitted their DNA for retention to law enforcement
agencies, violating the Fourteenth Amendment, as will be further elaborated below.
An individual’s privacy interests are necessarily wrapped up with the presump-
tion of innocence. Retention of fingerprints and DNA information by law
enforcement agencies results in a reduction of an individuals’ privacy interests, as

public authorities are retaining sensitive personal information. These authorities use
the biometrics data to lower the presumption of innocence by relaxing their fact-
finding and scrutiny burdens for any criminal investigation. The problem is that
while fingerprints contain only one dimension of personal data, DNA contains
multiple dimensions including dimensions that are currently unknown and subsumed
under the misnomer ‘junk DNA’. The vast quantity of sensitive personal
information currently and potentially available from DNA presents a far more
serious threat to individuals’ privacy interests than fingerprints, and as such more
stringent regulation of DNA databases and the records therein is required.
3. The Marper Decision of the European Court of Human Rights

The European Convention on Human Rights (the ‘Convention’) is a treaty created
in 1950 by the Council of Europe (Greer, 2006, p. 1). Its purpose is to ensure the
protection of fundamental civil and political liberties in its European member states.
Every state in Europe except Belarus (46 in total) is a signatory (Greer, 2006, p. 1).
The European Court of Human Rights (the ‘Court’) interprets the Convention and
adjudicates individual applications alleging violation of Convention rights. The
Court is located in Strasbourg, France (The European Court of Human Rights,
Frequently Asked Questions, 2010). Forty-seven judges sit on the Court, equal to the
number of member states of the Council of Europe that have ratified the
Convention. The judges sit in their individual capacity and do not represent any
state. Seventeen of the 47 judges sit on the Grand Chamber, the highest body within
the Court’s system (European Court of Human Rights, Case-processing flow chart,
2010). The Grand Chamber, similarly to the United States Supreme Court, generally
limits itself to taking on cases that raise serious questions of interpretation or
application or serious issues of general importance.4
On 4 December 2008, the Grand Chamber of the European Court of Human
Rights handed down S and Marper v. United Kingdom. In Marper, two British
applicants complained that the fact British public authorities retained their
fingerprints, cellular samples, and DNA profiles after the criminal proceedings
against them had ended with an acquittal or had been discontinued violated Article 8
of the European Convention of Human Rights and Article 8 in conjunction with
Article 14 (S and Marper v. UK, 2008, para. 3).
The first applicant, S, was arrested at the age of 11 in 2001 and charged with
attempted robbery (para. 10). Authorities took samples of his fingerprints and DNA.
The DNA profile consisted of a sequence of numbers placed in a DNA database. A
technician, using crime scene material, could search a DNA database containing
multiple DNA profiles (para. 65). A person could be identified in the DNA database
only if and to the extent that a match was obtained against the crime scene sample.
Fingerprints, DNA profiles and samples were not vulnerable to any subjective
commentary nor provided any information about a person’s activities and thus
presented no risk to affect the perception of an individual or affect his or her
reputation (para. 65). S was acquitted (para. 10).
Marper was arrested in 2001 and charged with harassment of his partner (para.
11). Marper reconciled with his partner before a pretrial review took place and his
partner dropped the charges. In June 2001, the Crown Prosecution Service formally
discontinued the case (para. 11).
198 M. Lwin
Both S and Marper asked the police to remove and destroy their fingerprints and
DNA samples, but the police refused (para. 12). The Convention requires that
applicants first exhaust all domestic remedies before petitioning the Court,5 so
applicants first applied for judicial review of the police decisions not to destroy the
fingerprints and samples to the British Administrative Court. The Administrative
Court rejected the application for judicial review and so the applicants appealed to
the domestic appellate court, the Court of Appeal. The Court of Appeal upheld the
Administrative Court’s decision (S and Marper v. UK, 2008, para. 13). Finally, the
applicants took their application to the highest domestic court, the House of Lords,
which dismissed the appeal (para. 15). The House of Lords examined the legislative
history of the Police and Criminal Evidence Act 1984 (‘the PACE’), the law that
allowed retention of DNA profiles and other biometric data (para. 15). The House of
Lords took note of two cases before the PACE had been passed that utilized
‘compelling evidence’ linking one suspect to a rape and another to a murder. The
‘compelling evidence’ could not be used in both cases because the respective suspects
had either been acquitted or the charges were dropped, and the law at the time
demanded the expungement of the biometric data from law enforcement databases.
PACE was enacted, in part, to prevent the expungement or withholding of
fingerprint and DNA data in future cases. Lord Steyn of the House of Lords took
this legislative history as recognition of the considerable value of the fingerprints and
DNA samples, and upheld the provisions of PACE and the decisions of British
public authorities to indefinitely retain the fingerprint and DNA information of both
S and Marper (para. 16).
Having exhausted domestic remedies as required by the Convention, the
applicants petitioned the European Court of Human Rights, alleging violations of
Article 8 and Article 8 taken in conjunction with Article 14. Article 8 of the
Convention states in relevant part, ‘[e]veryone has the right to respect for his
private . . . life’. Article 8, as is shown in the text of 8(2), is a proportional right that
can be legitimately infringed in certain circumstances: ‘There shall be no interference
by a public authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society . . . for the prevention of
disorder or crime.’
The Court began by noting that a majority of the Council of Europe member
states allow the compulsory taking of fingerprints and cellular samples in the context
of criminal proceedings (para. 45). The Court found that at least 20 member states
have legal provisions allowing for the taking of DNA information and storing it
either in a national database or some other form, and the number of member states
having such legal provisions is increasing (para. 45). In Austria, Belgium, Finland,
France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Norway,
Poland, Spain and Sweden, the taking of DNA information is not automatic, but
rather whether or not to take a suspect’s DNA information depends on certain
circumstances and the seriousness of the crime (‘seriousness’ of the crime largely
determined by the existence of and the duration of the possibility of imprisonment)
(para. 46). The Court noted that the UK is the only member state ‘expressly to
permit the systematic and indefinite retention of DNA profiles and cellular samples
of persons who have been acquitted or in respect of whom criminal proceedings have
been discontinued’ (para. 47).
The Court applied Article 8, finding that the ‘mere storing of data relating to the
private life of an individual amounts to an interference within the meaning of Article
8’ (para. 67) noting the ‘individual’s concern about the possible future use of private
information retained by the authorities is legitimate and relevant’ (para. 71).
Importantly, the Court acknowledged what is perhaps the most pressing problem
with the law in the biometrics and privacy context: the technology is progressing
much faster than the law is able to anticipate. Thus, a problem of prediction
dominates biometrics databases, as the Court describes:
Indeed, bearing in mind the rapid pace of developments in the field of genetics and
information technology, the Court cannot discount the possibility that in the future the
private-life interests bound up with genetic information may be adversely affected in
novel ways or in a manner which cannot be anticipated with precision today. (para. 71)
The Court found another pressing concern of biometrics data other than its
‘conceivable use of cellular material in the future’ (para. 72). ‘Cellular samples’ are
cellular materials taken from an individual, such as a mouth swab, from which a
DNA profile is constructed (Van Der Velden v. Netherlands, 2007). The Court noted
that the ‘highly personal’ cellular samples ‘contain much sensitive information about
an individual, including information about his or her health’ (S and Marper v. UK,
2008, para. 72).
The UK government submitted that the DNA profiles contain a limited amount
of personal information extracted from the cellular samples as part of an argument
that the interference with the applicants’ Article 8 rights is not overly intrusive (para.
74). This information was coded as a sequence of numbers or a barcode ‘containing
information of a purely objective and irrefutable character and that the identification
of a subject only occurs in case of a match with another profile in the database’
(para. 74). Since the personal information is encoded, the UK government argued
that ‘computer technology’ is required to read the information and that only a
limited number of people with special training would be able to interpret it (para.
74). The Court dismissed the ‘computer technology’ argument and considered the
fact that even though the subject of personal information in the DNA database
could be identified only in the event of a match it believed that the DNA profiles
could ‘provide a means of identifying genetic relationships between individuals’
(para. 75). The Court also believed that inferences could be drawn from the DNA
profiles as to the subjects’ ethnic origins. Perhaps implicit in both of the Court’s
conclusions is the aforementioned problem of prediction argument – current
technology cannot interpret all of the qualities of DNA, but it is a plausible
assumption that future technology will be able to perform unanticipated and overly
intrusive interpretations of DNA.
The Court then commenced its Article 8 doctrinal analysis, plugging in the facts
of the case into specific enumerated rules. The Court looked to see whether or not
there was actually in existence a domestic law that allowed the retention of DNA and
fingerprint information by law enforcement authorities. The Court said the law must
be ‘adequately accessible and foreseeable, that is, formulated with sufficient precision
to enable the individual – if need be with appropriate advice – to regulate his
conduct’ (para. 95). The domestic law satisfied the first prong of Article 8, the Court
finding that Section 64 of PACE provides that biometric data ‘taken from a person
in connection with the investigation of an offence may be retained after they have
fulfilled the purposes for which they were taken’ (para. 97).
The Court moved on to the second prong of Article 8, the issue of whether the
government has a ‘legitimate aim’ for its conduct. The Court found that the UK
200 M. Lwin
government had satisfied this prong as well, saying, ‘the retention of fingerprint and
DNA information pursues the legitimate purpose of the detection, and therefore,
prevention of crime’ and such retention ‘pursues the broader purpose of assisting in
the identification of future offenders’ (para. 100).
The Court then moved on to the third prong, whether or not the interference by the
UK government, though it had a legitimate aim, was ‘necessary in a democratic
society’. An interference will be considered by the Court to be ‘necessary in a
democratic society’ if the interference answers (1) a ‘pressing social need’; (2) the
interference is proportionate to the legitimate aim pursued; and (3) if the reasons
adduced by the national authorities to justify the interference are ‘relevant and
sufficient’ (para. 101, emphasis added). The Court also uses a ‘margin of appreciation’,
a form of judicial deference to national authorities. In other words, the Court will
defer to the state’s policy or give it weight depending on the circumstances.
The Court then made an important declaration on the nature of biometrics data:
‘the protection of personal data is of fundamental importance to a person’s
enjoyment of his or her right to respect for private and family life, as guaranteed by
Article 8 of the Convention’ (para. 103). The Court cited concern with ‘automatic
processing’ of personal biometrics data, putting a duty on domestic law to ‘ensure
that such data are relevant and not excessive in relation to the purposes for which
they are stored; and preserved in a form which permits identification of the data
subjects for no longer than is required for the purpose for which those data are
stored’ (para. 103). The Court also noted that there must be regulations and controls
in place, also outlined in domestic law, that ‘afford adequate guarantees that retained
personal data was efficiently protected from misuse and abuse’ (para. 103). The
Court held DNA information, particularly the cellular samples, expressly apart from
other biometric data, distinguishing it on the grounds that it, in implicit comparison
to other biometric data, ‘contains the person’s genetic make-up of great importance
to both the person concerned and his or her family’ and is possibly vulnerable to
future developments in technology, i.e. the cellular samples can be mined later on for
sensitive information not contemplated by public authorities and private individuals
at present.
Thus far the European Court of Human Rights has set up a template that can be
used in all future adjudications: balancing the public policies of crime prevention and
law enforcement against the protection of personal biometrics data. But it is not a
nebulous balancing test like those of the US courts, discussed below in Section 4–
rather, the balancing test is further defined by its proportionality: the biometrics data
must be ‘relevant’ and ‘not excessive’ as compared to the purposes for which they are
stored. As the Court shows later, relevancy and excessiveness will be defined both by
the type of offense and the status of the individual whose biometrics data is being
retained by the state.
The Court has also imposed a positive obligation on the UK to ensure that the
retained biometrics data is sufficiently protected from misuse and abuse. The
sensitive nature of the biometrics data implies that the Court feels that on a prima
facie level the privacy interests are stronger and the Court has an elevated, ‘careful
scrutiny’ of any domestic law authorizing retention and use of biometrics
information.6 This ‘careful scrutiny’ can be applied to US jurisprudence, whose
tests (discussed in Section 4) of ‘special need’ and ‘diminished privacy interest’ are
insufficiently protective of individuals’ privacy interests and interface poorly with the
technological aspects of DNA information and databases.
What does ‘careful scrutiny’ mean? How is it applied to a given set of facts? The
Court took into account the broad landscape of biometrics, noting the technological
advancement that has made biometrics collection and storage possible, and
elaborated on the proportionality principle outlined in its ‘necessary in a democratic
society’ analysis: the length of retention of the biometrics data, both the physical
samples and the objective profiles, should be proportionate to the severity of the
crime alleged.7 Scotland (part of the UK but with separate domestic laws on the
matter than Northern Ireland, England and Wales) is a notable example of a
member state of which the Court finds has acceptable biometrics regulations:
the Scottish Parliament voted to allow retention of the DNA of unconvicted persons
only in the case of adults charged with violent or sexual offences and even then, for three
years only, with the possibility of an extension to keep the DNA sample and data for a
further two years with the consent of a sheriff. (S and Marper v. UK, 2008, para. 109)
Said another way, this principle of proportionality in the biometrics retention

context should discriminate between different kinds of crimes – indefiniteness is
unacceptable, even for serious crimes.8
Another problem is the inability of the applicants to have their biometrics data
removed from the law enforcement databases. The Court took account of several
problems:
retention is not time-limited; the material is retained indefinitely whatever the nature or
seriousness of the offence of which the person was suspected. Moreover, there exist only
limited possibilities for an acquitted individual to have the data removed from the
nationwide database or the materials destroyed (see paragraph 35 above); in particular,
there is no provision for independent review of the justification for the retention
according to defined criteria, including such factors as the seriousness of the offence,
previous arrests, the strength of the suspicion against the person and any other special
circumstances’ (S and Marper v. UK, 2008, para. 119)
A couple things should occur: (1) proportionality between the crime committed and
the length of time of retention of biometrics data; and (2) provision in domestic law
for individuals to petition an administrative or judicial (‘independent’) body to
review the public justification for retention of biometrics data in compliance to open
and available criteria to the applicants, such as strength of suspicion and previous
criminal records. The first criterion considers the status of the individual whose
DNA profile the public authorities retain: whether they have been convicted, the
seriousness of the crime they have been charged with or convicted of, whether they
have been acquitted, or whether the charges filed against them have been retained or
dropped. The second criterion calls for the creation of a kind of privacy court, an
acknowledgment that the attainment of DNA information from citizens is a
development that should be vigilantly monitored, lest the slope of sliding privacy
rights become slippery.
Importantly, the Court observed the problem of stigmatization, which, in the
Court’s words, stems ‘from the fact that persons in the position of the applicants,
who have not been convicted of any offence and are entitled to the presumption of
innocence, are treated in the same way as convicted persons’ (para. 122). The Court
here is arguing that retention of the applicants’ personal biometrics data is akin to
treating them the same as convicted persons, whose personal biometrics data is also
retained.9 In other words, the state, by choosing to retain the personal biometrics
202 M. Lwin
data of convicted and arrested persons and to not retain the personal biometrics data
of most other citizens, is specifically choosing to treat persons differently depending
on their status. The Court is applying its non-discrimination principle, i.e. member
states must treat similarly situated persons alike and differently situated persons
differently. The non-discrimination principle is a form of equality interpreted by the
Court in its reading of Article 14, the anti-discrimination provision of the
Convention. As applied here, the non-discrimination principle holds that it is unjust
to treat similarly two different classes of individuals, convicted persons and arrested
but ultimately non-convicted persons. It is implicit in the Court’s analysis that
convicted persons surrender some of their freedom by cause of their being convicted
of a crime. This is in accordance with US jurisprudence as explained in Section 4
under the ‘diminished privacy interest’ test used by some US circuit courts,10 but the
Court’s analysis is much more nuanced than that of the US circuit courts, since the
Court is very aware that the kind of crime committed – whether it is a serious, violent
or sexual felony v. a non-violent misdemeanor – influences the degree of diminution
of the individual’s privacy interest.
The Court’s logic here raises some concerns, however. The Court itself says ‘it is
true that the retention of the applicants’ private data cannot be equated with the
voicing of suspicions’ (S and Marper v. UK, 2008, para. 122). This makes sense, if the
presumption of innocence is to hold – for convicted criminals are also entitled to a
presumption of innocence for any new charges for new crimes brought after they
have been convicted for a crime. By accepting the public policy argument by the UK
government that retention of personal biometrics data is necessary for ‘crime
prevention’ at least for convicted persons, however, the Court is implicitly lowering
the presumption of innocence for convicted persons. After all, the UK government is
treating differentially two classes of persons, assuming arguendo that the UK
government was in compliance with the Court’s eventual holding: it is storing the
personal biometrics data of convicted persons while not storing the personal
biometrics data of non-convicted persons.11 The reason behind the UK govern-
ment’s retention of this information is to enhance ‘crime prevention’. In other words,
law enforcement is saved some evidentiary fact-finding by having a ready database of
convicted persons’ personal biometric data that they can attempt to match profiles in
that database against forensic evidence found at a given crime scene or in pursuance
of the resolution of a criminal investigation. The people in the database are
presumed to be more likely to commit a crime as compared to those individuals who
have not yet been entered into the system (again, assuming arguendo the UK
government is following the Court’s eventual holding) because they have been
previously convicted of a criminal offense.12
So the Court’s statement that ‘the retention of the applicants’ private data cannot
be equated with the voicing of suspicions’ is false. The presence of the applicants’
private data in the UK government’s database alongside convicted criminals’ private
data supports the Court’s argument that the UK government is in fact lumping two
different classes of persons together. There is a lowering of the presumption of
innocence for such persons in the UK database because the government treats these
individuals differently from the rest of the population (whose profiles are not present
in the database) for the express purpose of ‘crime prevention’, i.e. these people are
more likely to commit crime than those persons whose personal biometrics data is
not in the database. This is what the Court really means when it says the applicants’
‘perception that they are not being treated as innocent is heightened by the fact that
their DNA profiles are retained indefinitely, just the same as the data of convicted
persons (S and Marper v. UK, 2008, para. 122).
The presumption of innocence and the burdens that flow from it are implicated
here. One is the presumption of innocence that requires the government to meet an
evidentiary burden of production from which a jury or judge infers that the applicants
have committed the crime in question beyond a reasonable doubt. Furthermore, the
process the government takes in meeting the presumption of innocence requires it to
take steps both in deciding which persons to scrutinize and what inferences regarding
potential suspects to make from the evidence gathered in the criminal investigation in
question. To illuminate these assertions, take the example of the non-convicted, non-
arrested citizen who has no personal biometrics data stored and accessible on the
UK government’s database. This person, named Sam, has in fact committed a
murder. Law enforcement authorities have recovered forensic evidence, which
includes some of Sam’s DNA, from the scene of the murder. The authorities run a
check of the forensic evidence against the UK database, and come up with no
matches. So, law enforcement authorities face two higher burdens in catching Sam:
(1) a fact-finding burden, where they must collect additional evidence without the
benefit of the ability to draw conclusive inferences as to whether or not Sam
committed the crime from Sam’s DNA evidence that they already have on hand, but
do not know it is his DNA; and (2) a scrutiny burden, where they will have to figure
out by collecting evidence and interviews which person(s) to focus on, where to
concentrate their resources. Note that the fact-finding burden may also require that
the authorities attain enough evidence to request a sample of Sam’s DNA, so they
can then match it against the crime scene forensic evidence found.
These two burdens would be significantly reduced if Sam’s DNA were already in
the UK government’s database. Upon running the search against the UK
government biometrics database, a hit would come up for Sam. The authorities
will then have both much lighter fact-finding and scrutiny burdens: they will have
evidence that can be employed not only to arrest Sam on suspicion of the crime, but
they will also be able to use the crime scene evidence in a court of law to meet the
burden of guilt. The authorities will also know whom to concentrate their efforts on,
whom to scrutinize. This is a more nuanced view than the Court takes. The Court
assumes that the UK government’s argument that ‘the power of retention applies to
all fingerprints and samples taken from a person in connection with the investigation
of an offence and does not depend on innocence or guilt’ (para. 123) looks only to
the literal provisions of the domestic law, i.e. the Court looked to Section 64(3) of the
PACE allowing volunteers to the database to request that the government destroy
their personal biometrics data upon request (para. 123). The Court took Section
64(3) of the PACE to require ‘weighty reasons’ to be asserted by the government
‘before the Court could regard as justified such a difference in treatment of the
applicants’ private data compared to that of other unconvicted people’ (para. 123).
The Court does not contemplate the presumption of innocence problem,
unfortunately, though it is an implicit part of the Court’s holding.
The Court ultimately concluded on stigmatization grounds that it was unjust to
treat the non-convicted applicants the same as convicted persons by retaining
indefinitely their personal biometrics data in the government database (para. 125).
The Court, instead of elaborating a substantive principle of privacy under Article 8
in the biometrics context instead decided to adjudicate on the ground that there is a
distinction between the applicants and convicted persons and thus the applicants
204 M. Lwin
must be treated differently because of this distinction. Fortunately, the non-

articulation of a substantive principle of privacy helps the Court’s holding map well
onto US jurisprudence in the DNA database context, as will be shown below in
Section 4. It is notable that the Court’s conclusion, i.e. that the ‘blanket and
indiscriminate nature of the powers of retention of the fingerprints, cellular samples
and DNA profiles of persons suspected but not convicted of offences, as applied in
the case of the present applicants, fails to strike a fair balance between the competing
public and private interests’ leads to the ex post result that a member state must take
it upon itself to differentiate between convicted and non-convicted persons by
allowing under domestic law to place the former’s personal biometrics data into a
comprehensive database and not the latter’s, and to expunge the data of those
members of the latter who are arrested and later are acquitted or have the charges
dropped. Furthermore, the seriousness of the offense must be taken into account
under the Court’s analysis in determining whether or not to collect DNA
information, and for how long to retain that DNA information.
The upside of the Court’s limiting its holding to the situation where a state does
not have a universal DNA database is that it will work effectively in the USA, where
there is currently a lack of a universal DNA database. What if a given country were
to implement a domestic law requiring compulsory submission of personal biometrics
data for all citizens, not just those who have been convicted of a crime? This question
will be explored further below in Section 5.
The Court’s conclusion and structural framework is sound and should be
adopted by US courts in adjudicating matters of biometrics and privacy: a
proportionality test predicated on the status of the person whose biometrics data is
in question. The Court’s framework of non-convicted, arrested but non-convicted,
convicted and the factor of the seriousness of the offense is helpful in creating bright
lines of distinction in how to differently handle these cases, as well as the Court’s
clear balancing test between the public interest in ‘crime prevention’ and the private
interest in safeguarding their personal intrinsic information. For those individuals
who are not convicted, it should be impermissible for law enforcement agencies to
retain their DNA information indefinitely. For such individuals an expungement rule
should apply, mandating expungement of DNA information from law enforcement
databases within a reasonable time after the charges have been dropped or the
individual has been acquitted of the alleged offenses. The Court’s ‘careful scrutiny’ is
more useful than the US courts’ ‘special need’ and ‘diminished privacy interest’ tests
discussed in Section 4.
The reasoning and the conclusions of the European Court of Human Rights
should be adopted and applied by US courts of law in controlling the rapidly
expanding field of DNA law enforcement databases.
4. The Marper proportionality test should be applied to US DNA database

jurisprudence
4.1. Fourth Amendment and DNA databases overview
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . . (The Fourth Amendment)
The Fourth Amendment of the United States Constitution prohibits unreasonable

searches and seizures by the government. Fourth Amendment issues focus on
whether or not a given search or seizure is reasonable or unreasonable. US

jurisprudence in this context has largely not contemplated the rise of technology,
thereby interfacing poorly with DNA databases. Most plaintiffs who have had their
DNA taken have alleged Fourth Amendment violations: that DNA collection by law
enforcement authorities is an unreasonable search or seizure.
All of the circuit courts agree that the extraction of DNA without consent is a
‘search’ under the Fourth Amendment.13 The issue then becomes whether or not the
‘search’ is ‘unreasonable’ under the Fourth Amendment. Warrantless searches are
‘presumptively unreasonable’ (Monteleoni, 2007, p. 261) but DNA searches have been
upheld by circuit courts because, inter alia, they have been incident to a lawful arrest.14
While the Supreme Court has not yet heard a case directly on DNA database
searches, US circuit courts have applied two different tests in assessing the
constitutional validity of DNA databases and their retention of DNA information,
the ‘special need’ test and the ‘diminished privacy interest’/general reasonableness/
totality of the circumstances test (Monteleoni, 2007, p. 248). All tests have uniformly
upheld DNA databases and retention of DNA information, in fact, ‘the only
disagreement among the circuits is what analytical approach to use in upholding the
statutes’.15 These tests are poorly constructed and are inadequately equipped to deal
with the sophisticated and difficult issues regarding the retention and use of DNA
information by law enforcement agencies.
4.2. The ‘special need’ test

A minority of courts have said that DNA searches are legitimate under the ‘special
need’ exception crafted in Justice Blackmun’s concurrence in the 1985 Supreme
Court case New Jersey v. T.L.O. If the ‘special need’ exception is engaged,
warrantless searches that would ordinarily be unauthorized are held reasonable by
US courts. The ‘special need’ exception weighs a state interest in conducting a search
against the individual’s interest in being left alone.16 A search cannot fall under the
‘special need’ exception only by serving ‘the general interest in crime control’.17 The
Second, Seventh, and Tenth Circuits have held that the use of a DNA database
serves a special need, allowing DNA databases to be constructed and to operate
without requiring warrants.18 These circuits have held that the state interests
outweigh the individuals’ interests, without examining the status of the individual as
arrestee, arrestee facing charges, convicted, acquitted, or arrestee with charges
dropped, distinctions that have important implications for the individual’s privacy
interests: DNA information is stored indefinitely and DNA samples contain all of an
individual’s genetic information. Such storage, coupled with the ongoing risk of
exploitation, misuse, and abuse of DNA information, is a consideration that US
courts have not examined with much scrutiny.
The Second, Seventh and Tenth Circuits cite crime prevention as the
governmental and public interest.19 The Second Circuit in Nicholas v. Goord has
found that the nature of DNA collection – not contemplating a particular crime in
question, but rather for purposes of future crime prevention, and that DNA
information only goes to identity and does not presumptively incriminate anyone20 –
is substantially different from general law enforcement activity such that DNA
collection is a ‘special need’.
Similarly, the Seventh Circuit in Green v. Berge held that DNA collection and
retention in DNA databases fall under the ‘special need’ rubric because ‘the desire to
206 M. Lwin
build a DNA database goes beyond the ordinary law enforcement need’ (p. 677).
This is circular reasoning, simply saying without support that DNA databases are a
special need because such databases go beyond the ordinary law enforcement need.
The Green court, corroborating the view of this paper in Section 2, found that ‘DNA
is the most reliable evidence of identification – stronger even than fingerprints or
photographs’ (p. 679). The Green court never examines why DNA is the ‘most
reliable evidence of information’: because the intrinsic nature of DNA contains
significantly more private, sensitive personal information of an individual. The
Seventh Circuit, like all the other courts, fails to properly find an enhanced privacy
interest for the individual because of this special quality of DNA.
Paul Monteleoni in an article published in the New York University Law Review
in 2007 points out that the reasoning in Nicholas is flawed because the Second Circuit
presumes evidence only going to identity is distinguishable from other kinds of
evidence and therefore can be obtained without a warrant (Monteleoni, 2007,
p. 265). Monteleoni uses the example of a bright yellow shirt – in order for police to
obtain the bright yellow shirt (which is located in a house) they must obtain a
warrant. The bright yellow shirt is only useful for identity, and yet a warrant is
required to obtain it (p. 265). Monteleoni’s analysis is sound but Nicholas can be
attacked on further grounds. As has been shown above, DNA information can be
used not only for identity, but also as a means of profiling and by potentially
extracting genetically sensitive information about an individual.
Importantly, as Monteleoni (2007, p. 266) points out, DNA collection is
performed on the premise that law enforcement authorities are contemplating a
particular crime in question. In fact, it can be said that the ‘special need’ test relies on
this assumption: the special need for DNA collection by law enforcement authorities
is that such authorities are investigating an individual’s potential commission of a
particular crime. What is the rationale, then, for retaining the DNA information
once the assumption made by law enforcement authorities falls apart, i.e. the
individual whose DNA has been collected under the assumption that he or she may
have committed the crime in question has been later acquitted or the charges have
been dropped against him or her? Circuits adopting the ‘special need’ test in fact
have not even considered that whether or not an individual is ultimately convicted of
the alleged offenses should impact the length of retention of his or her DNA
information by law enforcement agencies. Left unconsidered by these circuits is the
fact that retention of DNA information amounts to a reduction of the presumption
of innocence, that the ‘special need’ ceases when it has been found that the individual
in question no longer has any charges pending against him or her that were necessary
conditions to extraction of his or her DNA information. Otherwise, these circuits
would have to accept the proposition that there is a special need in allowing
continued operation of DNA databases without requiring warrants for the entire
population, as there is no distinction between a non-convicted individual who has
had their DNA information extracted and a non-convicted individual who has not
had their DNA information extracted save for the unfortunate added occurrence of
the former encountering law enforcement authorities. Such a proposition is self-
evidently unacceptable under the Fourth Amendment, as it would elide the warrant
requirement altogether. The ‘special need’ ends when the but-for condition for DNA
collection in the first place – the premise that law enforcement authorities are
investigating a specific individual’s involvement in a specific crime – has lapsed, i.e.
the crime has been solved, and/or charges have been dismissed against the individual
whose DNA was collected or the individual was acquitted. The specialness of the
‘special need’ test falls apart, collapsing into the ‘general law enforcement need’ the
latter of which the Supreme Court itself has said is an insufficient interest to qualify
as a ‘special need’ (City of Indianapolis v. Edmond, 2000, p. 42). It follows then that
states should uniformly adopt the position of the federal law in requiring
expungement of DNA information from state databases of individuals who are
later acquitted or have the charges against them dismissed.
The ‘special need’ government interest may also end even for convicted offenders,
depending on the crime committed. It does not make sense for law enforcement
agencies to retain in their databases forever DNA information that, as has been
discussed in above in the junk DNA debate, contains very sensitive personal
information that is vulnerable to misuse and abuse simply because the individual has
committed a misdemeanor. Clearly in this instance there is an improper unbalance
between the government interest in crime prevention and the individual’s privacy
interest because it is dubious to assume a person who has committed a non-violent
misdemeanor is therefore more likely to commit a crime where DNA evidence would
be important and highly valued by society – a violent or sexual crime – to warrant a
permanent and significant reduction of the presumption of innocence for that
person. Scottish law is aware of this unbalancing, limiting retention of the DNA of
unconvicted persons only to the case of adults charged with violent or sexual offences
and even then allowing retention for only three years (S and Marper v. UK, 2007,
para. 109). US circuit courts using the ‘special need’ test therefore need a more
sophisticated test that takes into account the type of offense committed in
determining the length of retention of DNA information, even or convicted persons.
The Marper test provides such sophistication.
4.3. The ‘diminished privacy interest’/totality of the circumstances/general

reasonableness test
Other circuit courts not applying the ‘special need’ test apply a general reason-
ableness test (often called a totality of the circumstances test in the same breath) that
always winds up implicating the ‘diminished privacy interest’ of the individual. The
First, Tenth, Eighth, Tenth and Eleventh Circuits have applied a general reason-
ableness test in assessing the validity of DNA databases.21 The version of this test
was articulated by the Supreme Court in United States v. Knights, not in the context
of DNA databases but rather parolees: the court in using the test balances ‘the
degree to which [the search and seizure] intrudes upon an individual’s privacy’ with
‘the degree to which [the search and seizure] is needed for the promotion of
legitimate governmental interests’ (pp. 119–120). The analysis in the general
reasonableness test, however, tends to collapse into a ‘diminished privacy interest’
analysis, because courts always label the petitioner’s privacy interest as diminished in
general reasonableness test cases as a rationale for upholding the retention and use
of petitioner’s DNA information.
In United States v. Weikert, the First Circuit selected a general reasonableness
test over the special needs test. However, in its reasonableness analysis, it mentioned
a ‘substantially diminished expectation of privacy’ (p. 8) for individuals on
conditional release. The Weikert court acknowledged the problem of junk DNA,
that ‘[s]hould the uses to which ‘‘junk DNA’’ can be put be shown in the future to be
significantly greater than the record before us today suggests, a reconsideration of
208 M. Lwin
the reasonableness balance struck would be necessary’ (pp. 32–33). In light of the
advances in finding that junk DNA is in fact not all junk today, the ‘reconsideration’
Weikert contemplates appears to be in order. The government in Weikert asserted
interests as mentioned above in this paper: that DNA databases help to solve crimes
more efficiently, that people who have committed crimes are more likely to commit
crimes in the future (pp. 33–34). The Weikert court concluded its balancing analysis
by finding that retention of DNA information for supervised releases like the
petitioner was appropriate, a conclusion this paper does not dispute. The court went
on to importantly note, however, that it
express[es] no opinion on the constitutionality of the retention and searching by the

government of the DNA profiles of individuals who have completed their terms of
conditional release, which is its standard practice . . . [a]lthough it might seem counter-
intuitive to law enforcement that a record once gleaned might be lost, there is a
substantial privacy interest at stake. (pp. 38–39)
Thus the view in Weikert reflects the view of this paper that for certain ex-convicts,
depending on the crime committed, permanent DNA retention by law enforcement
agencies may be unacceptable.
Despite the clear-headed writing in Weikert on the issues of junk DNA and
retention of DNA information for ex-convicts, the Weikert general reasonableness
test suffers from ambiguity. The court does not articulate with precision how it
balances all the interests raised; it only says
after careful consideration, we conclude that the government’s important interests in

monitoring and rehabilitating supervised releasees, solving crimes, and exonerating
innocent individuals outweigh Weikert’s privacy interests, given his status as a
supervised releasee, the relatively minimal inconvenience occasioned by a blood draw,
and the coding of genetic information that, by statute, may be used only for purposes of
identification.
This ambiguity, as Monteleoni rightly points out, is unacceptable as it features a

startling lack of transparency. This ambiguity problem is endemic to all cases that
apply a general reasonableness test to DNA databases.22
The Tenth Circuit in Banks v. United States applied a general reasonableness test
and concluded that the collection and retention of DNA for convicted persons is no
different than collecting fingerprints (pp. 1187–1188) an assertion refuted in Section 2
of this paper. As in Weikert, the Banks general reasonableness test collapses into a
‘diminished privacy interest’ test as the court noted that being on parole diminished
the petitioner’s privacy interests (p. 1193). The Banks court makes no mention of the
presumption of innocence problems outlined in this paper, instead focusing on the
procedural safeguards instituted by the DNA Analysis Backlog Elimination Act
2000,23 safeguards that this paper has noted are not always safe.
Other courts are more upfront about using the ‘diminished privacy interest’ test.
The Third, Fourth, Fifth, Eighth, Ninth and Eleventh Circuits do not use the ‘special
need’ test, instead holding DNA databases as legally acceptable under the Fourth
Amendment under the ‘diminished privacy interest’ test.24 The ‘diminished privacy
interest’ test balances the state interest in crime prevention against the individual’s
privacy interest and holding warrantless and suspicionless searches as reasonable ‘so
long as the individual’s privacy interest is judicially determined to be diminished’
(Monteleoni, 2007, p. 267).
In United States v. Kraklio, the court concluded that
Given probationers’ diminished privacy rights, the minimal intrusion involved in

obtaining DNA samples, and the legitimate governmental interest in using DNA as a
crime investigating tool . . . the collection of DNA under the DNA Act for inclusion in
the CODIS database does not constitute an unreasonable search and seizure in violation
of the Fourth Amendment. (United States v. Kraklio, 2006, pp. 924–925)
The Kraklio court called the intrusion in obtaining DNA samples ‘minimal’ without
explaining how it was minimal, similar to the cases mentioned above.
Courts using the ‘diminished privacy interest’/general reasonableness/totality of
the circumstances test come out the same way as courts using the ‘special need’ test,
with the same interests balanced. Facially, the ‘diminished privacy interest’ test
would create a good opportunity for US courts to adopt the European Court of
Human Rights’ Marper reasoning in balancing the status of the individual (e.g.
arrestee, convict, acquitted person) against the state interest in crime prevention and
creating ‘tiers of expectations of privacy’, namely, a lower privacy interest for
convicted felons as compared to a privacy interest equal to citizens who have not had
their DNA information extracted for arrested persons who later are acquitted of all
charges filed against them. Unfortunately, in practice the ‘diminished privacy
interest’ test has been applied in an ad hoc manner (Monteleoni, 2007, p. 269), courts
not articulating exactly when or how an individual’s privacy interests are diminished,
not being transparent in applying the balancing test, or not applying the balancing
test at all, instead using a categorical rule (Monteleoni, 2007, pp. 269–270).
Monteleoni argues that ‘a diminished privacy interest is a conclusory finding, and its
use to justify an exception to the warrant requirement is thus circular’ (pp. 269–270,
emphasis added). As Monteleoni notes,
criminal DNA database statutes authorize retention of DNA profiles and samples long
after the search target has left the criminal justice system and had her full privacy interest
restored. Since the burden on privacy endures as long as the record is maintained in the
government’s database, there is no reason for the government to be able to ‘tag’
someone while he is subject to a diminished privacy interest and use this temporary
diminution to burden his privacy for life. (Monteleoni, 2007, p. 270, emphasis added)
This is precisely the problem, and reveals the fatal flaws in the ‘diminished privacy
interest’ test. The test neither contemplates the contents of DNA samples (i.e. the full
genetic information of an individual, including both essential and junk DNA that
can reveal race, gender, and congenital disease and defect), nor the status of the
individual (e.g. arrested and acquitted, convicted felon), nor the seriousness of the
crime committed, nor the duration that the DNA sample or profile is kept
(conceivably forever). There is no reason why an individual whose DNA information
has been extracted and yet is ultimately not convicted of the crime should be
judicially determined to have a diminished privacy interest. While certainly some
such individuals may have in fact committed the crime but gotten off on a
technicality or because the victim decided to drop charges, the state still has not
carried its burden of proving the individual guilty of the crime. Therefore these
conclusions are mere conjecture. The presumption is that the individual has not
committed the crime unless the state has proven otherwise. It does not, follow, then,
that an individual’s privacy interest should be permanently diminished when he or
she has not by law been determined to commit the crime. Thus, the same solution is
210 M. Lwin
proposed for the ‘diminished privacy test’ as for the ‘special need’ test, in that state
law should follow federal law in requiring expungement of records of non-convicted
individuals.
Nor does it follow that for convicted persons their privacy interests should be
uniformly diminished by the same value regardless of the crime committed. Courts
using the ‘diminished privacy interest’ test do adjust the diminution of the privacy
interest depending on whether the individual is convicted or non-convicted, but
courts have not taken into account the actual nature of the offense committed for
convicted individuals, only focusing on the convicted/non-convicted distinction. The
‘diminished privacy interest’ test, then, has only one increment of diminution – a
convicted individual, whatever the offense, has his or her privacy interest diminished
by the same amount, allowing indefinite retention of his or her DNA information.
The test instead should have different degrees of diminution of the privacy interest
depending on the seriousness of the offense for convicted individuals for the same
reasons articulated for the ‘special need’ test above.
As with the ‘special need’ test adopted by the Second, Seventh and Tenth
Circuits, if the proposed modifications to the ‘diminished privacy interest’ test are
appropriated applied, the ‘diminished privacy interest’ test would take on the color
of the Marper test.
4.4. US circuit courts should adopt the Marper test

A crucial problem with the US circuit courts’ ‘diminished privacy interest’ and the
‘special need’ tests is that DNA databases ‘do not fit neatly into any existing
Fourth Amendment category’ (Monteleoni, 2007, p. 248). Therefore, ‘the best
response the judiciary can muster is to engage in some form of balancing
test . . . crafting a doctrine that distinguishes between reasonable and unreasonable
searches’ (p. 270).
Marper represents precisely such a balancing test, a doctrine that distinguishes
between reasonable and unreasonable searches and takes careful consideration of the
unique, technological nature of DNA databases. Compare both the ‘special need’
test and the ‘diminished privacy interest’ test to the Marper holding. The hole in the
‘special need’ test is that it the specialness of DNA collection, retention and use falls
apart the moment the individual is not convicted or has served the length of his or
her term. The problem with the ‘diminished privacy interest’ test is that it provides
no degree of nuance regarding the seriousness of the offense alleged or committed.
The problem with both tests is that they overcount the government interests and
undercount the individuals’ privacy interests, by equating the infringement of
privacy from DNA collection to fingerprint collection or saying that DNA collection
is a ‘minimal’ intrusion, by being unaware of the dangers of junk DNA, by not
taking into account the added dimensions of DNA information vis-à-vis fingerprints,
by not contemplating the problematic issue of retaining an individual’s DNA
forever, and by short-circuiting balancing analysis by deferring greatly to the
government interests of criminal investigation and crime prevention without any
consideration of the great reduction of the presumption of innocence that results.
Underlying the circuit courts’ presumption that government interests outweigh
individuals’ privacy interests is the circuit courts’ failure to realize the problem of the
reduction of the presumption of innocence and that privacy interests are necessarily
tied up in the reduction of the presumption of innocence.
The holding in Marper contemplates both the status of the individual and
recognizes the importance of the duration that the DNA material is retained by law
enforcement authorities. Importantly, Marper goes on to define the individual’s
privacy interest by the relationship between the individual’s status and the duration
the DNA material is retained: the European Court of Human Rights demands that
individuals who are arrested and either have the charges dropped or are acquitted are
entitled to have their DNA samples and profiles expunged from the DNA database.
Some convicted persons may also have their DNA information eventually expunged
depending on the seriousness of the offense committed. Marper thus takes serious
measure of the problem of the presumption of innocence, and embeds a nuanced
balancing analysis that is deferential to the privacy interests of the individual out of
implicit consideration, in the opinion of this paper, for the presumption.
Marper can be adapted to US Fourth Amendment jurisprudence. The fact that
Article 8 of the European Convention on Human Rights is a ‘proportional right’
maps well with the US Circuit court tests, the ‘special need’ test and the ‘diminished
privacy interest’ tests, which are themselves balancing tests. The public interest the
UK government presented to the European Court of Human Rights and that the
Strasbourg court accepted models the public interest accepted by the US circuit
courts: that DNA databases are useful for crime prevention (and, as Monteleoni
points out, for the implicit resolution of past and present crimes). Since the
Strasbourg court did not rely on nor articulate a principle of substantive equality in
defense of its holding, a principle of vigorous dispute in the USA, there are no issues
with the ‘right to privacy’ as understood in US jurisprudence. The Marper holding is
rather an empirical test, looking to the status of the individual and the nature of the
offense, and therefore can simply be applied to existing Fourth Amendment law.
The European Court of Human Rights took notice of the fact that in the
countries Austria, Belgium, Finland, France, Germany, Hungary, Ireland, Italy,
Luxembourg, the Netherlands, Norway, Poland, Spain and Sweden, the retention of
DNA information is not automatic, but rather whether or not to retain a suspect’s
DNA information depends on certain circumstances and the seriousness of the crime
(‘seriousness’ of the crime largely determined by the existence of and the duration of
the possibility of imprisonment) (S and Marper v. UK, 2008, para. 46). There is no
reason why the DNA database laws of these countries cannot be applied to US
states’ laws. The Court rebuked the UK, noting that it was the only member state
‘expressly to permit the systematic and indefinite retention of DNA profiles and
cellular samples of persons who have been acquitted or in respect of whom criminal
proceedings have been discontinued’ (para. 47).
The Court, unlike the US courts, was acutely aware of the problem of prediction:
bearing in mind the rapid pace of developments in the field of genetics and information
technology, the Court cannot discount the possibility that in the future the private-life
interests bound up with genetic information may be adversely affected in novel ways or
in a manner which cannot be anticipated with precision today. (para. 71)
The Court was also aware of the problem of the contents of the DNA cellular
samples, which contained a person’s entire genetic code (para. 72).
The Court also anticipated Monteleoni’s argument that the DNA profiles are
rendered into anonymous computer code. The Court answered that inferences as to
the subject’s ethnic identities could be drawn from the DNA profiles (para. 74).
Hank Greely, a Stanford Law School professor, has made similar claims regarding
212 M. Lwin
racial discrimination and Fourteenth Amendment issues for DNA profiles retained
in US databases.25 This ties into the broader theme of legal scholars and US circuit
courts assuming the sanctity and anonymity of information simply because it is
presented with the veneer of science, when future scientific developments or research
methods can expose individuals’ private information.
The proportionality test formulated and applied in Marper is much more
coherent than the ‘special need’ and ‘diminished privacy interest’ tests currently used
by US circuit courts (and that Monteleoni rightly labels ambiguous and conclusive).
The Marper test also maps well with the existing US jurisprudence on Fourth
Amendment searches. The Marper proportionality test for DNA databases entails
three steps: (1) whether there a domestic law authorizing the privacy interference by
the government; (2) whether there a legitimate aim for the interference permitted by
law; (3) whether the interference is proportionate to the legitimate aim pursued, a
useful expansion and modification of the language in Monteleoni’s proposed statute
reading ‘produced by a well-functioning democratic political process’ (Monteleoni,
2007, p. 274). The first prong self-evidently asks whether there is an US law on the
books allowing for collection and retention of DNA information. The second prong
asks whether the DNA information was collected in furtherance of a resolution of a
criminal investigation, also allowing flexibility for other categories such as
immigration and national security interests. The ‘careful scrutiny’ language used
by the European Court of Human Rights can be applied here, to make sure the
government is not collecting DNA for specious or pretextual purposes (S and
Marper v. UK, 2008, para. 104). The last prong, proportionality, is not ambiguous
but rather is quite descriptive, dictating that courts must adjust the length of
retention or require expungement of the DNA information depending on the status
of the individual as convicted or non-convicted, and also requiring that the
seriousness and nature of the crime be taken into account. All US courts would have
to do is to perform the elements of this test.
The Marper proportionality test is superior to the ‘special need’ and ‘diminished
privacy interest’ tests because it is clear in its structure, so judges cannot hide the
reasons for their conclusions behind unarticulated rationales or embedded in weasel
words, and the proportionality prong of the Marper test broadens or narrows the
scope of possible government infringement according to the status of the individual,
e.g. arrestee, convicted, person acquitted of all charges, the seriousness of the crime
alleged or committed. Being an empirical test relying on the well-defined categories
of non-convicted and convicted individuals, the Marper test solves Monteleoni’s
concern of the problem of ambiguity in applying a balancing test in the DNA
database context. A judge will have clear categories to match against the status of the
individual before him, and will have clear rules as to how to treat that individual’s
DNA information depending on the category he or she is placed in.
5. Will a universal DNA database solve the burden problem?

5.1. Akhil Amar’s arguments for a universal DNA database
‘We think science is going to be the solution to all our problems.’ – Tim Sparapani, senior
legislative counsel for the ACLU. (Roddy, 2008, November 30)
A possible solution to the problem of the presumption of innocence outlined above is

the policy proposal of a universal DNA database. The government could pass a law
making it mandatory for all US citizens to submit a sample of their DNA for
retention by law enforcement agencies in DNA databases. This would eliminate
differential treatment problems by treating all citizens alike. In a 2002 New York
Times Op-Ed, Yale Law School professor Akhil Reed Amar advocated for the
creation of a national, ‘truly comprehensive’, universal DNA database:
rapists typically leave behind semen, or blood and skin cells under victims’ fingernails,
police could solve [by cross-referencing such forensic evidence against a universal DNA
database] and so further deter many types of rape. Genetic material is often found at the
scenes of other crimes and could be used to solve them as well. If linked to birth
certificates and drivers’ licenses, the database could foil various kinds of identity fraud,
benefiting both law enforcement and crime victims. (Amar, 2002)
Amar also advocates use of the system for periodic auditing: ‘audits based on proven
cases of past error would show whether there were patterns to these mistakes –
specific dishonest cops, faulty police practices or bad rules of evidence. Reforms
based on these audits would benefit the entire criminal justice system’ (Amar, 2002).
Amar does cite some ‘serious privacy concerns’, but his list does not contemplate
many of the potential privacy issues: criminals planting DNA evidence at the crime
scene in order to frame other or to cast attention away from themselves, the ability to
fabricate DNA,26 the accuracy and fallibility of the DNA profiles, the security
concerns in database integrity and the misuse and abuse of DNA profiles by law
enforcement authorities. Amar does, however, think that there should be severe
penalties for misuse of DNA data. In order to mitigate the ‘serious privacy
concerns’,27 Amar argues that ‘a DNA statute should limit testing to so-called junk
DNA – parts of the DNA code that identify individuals without revealing other
medical facts’. Amar has maintained his support for junk DNA extraction through
2008.28
Amar’s arguments underestimate the potential for DNA database misuse and
abuse. His argument for limiting testing to ‘junk DNA’ is flawed, because it assumes
that junk DNA will never reveal other medical facts about individuals.
Unfortunately, today’s junk DNA may be tomorrow’s essential DNA. For example,
some kinds of junk DNA have been found to ‘stray’ into functional DNA, resulting
in such maladies as hemophilia and muscular dystrophy (Flam, 2008). In other
words, the presence of certain kinds of junk DNA that some have called
‘transposable elements’ can indicate whether or not a person has a particular
genetic disorder. This may lead to the kind of eugenic-esque fears that Amar’s Op-Ed
New York Times article overlooks.
Other scientists have suggested that some junk DNA that is shared and nearly
identical among humans, chickens, rodents and fish indicate that the junk DNA is
not junk at all. In fact, in a 2004 BBC article scientists suggested that some junk
DNA may have a ‘role in regulating the process of development and differentiation’
for human embryos, self-evidently an important role (Kettlewell, 2004). Professor
Chris Ponting from the UK Medical Research Council’s Functional Genetics Unit
has said ‘I think other bits of ‘‘junk’’ DNA will turn out not to be junk. I think this is
the tip of the iceberg, and that there will be many more similar findings’ (Kettlewell,
2004). In fact, ‘many more similar findings’ indicating that junk DNA is in fact
materially significant DNA since 2004 have been found.29 The Congressional
Research Service (CRS), an entity that serves as shared staff to congressional
committees and members of Congress, took notice of the growing evidence showing
214 M. Lwin
that junk DNA is not actually junk: the CRS cited an October 2008 University of
Iowa study finding that junk DNA has the potential to ‘evolve into exons, which are
the building blocks for protein-coding genes’ (Henning, 2010).
Therefore, Amar’s assumption that junk DNA is actually junk is, with scientific
progress, turning out not to be true. So his argument that the state can avoid or
substantially mitigate serious privacy concerns by limiting DNA extraction to only
junk DNA fails. Cast more dangerously, it is a predictive failure – the state is unsure
exactly what science will uncover regarding junk DNA. The European Court of
Human Rights, as explained in Section 3, was acutely aware of the problem of
prediction. Even assuming that some junk DNA will ultimately remain junk, it will
likely be far more difficult to remove those parts of junk DNA ex post, i.e. already
incorporated into a national database, that scientists have discovered to be material
while retaining that junk DNA that remains immaterial.
Furthermore, assuming arguendo Amar’s national DNA database suggestion is
valid, Amar fails to elaborate upon many other privacy concerns that will arise and
have already arisen. First, while database searches will be useful in determining the
existence of police fraud in the collection of evidence, there may be police fraud and
expert error in the use of the database itself. In fact, there are a few stories already
detailing such fraud and error in pre-existing DNA databases.
DNA database proponents appear to believe that DNA evidence is a silver bullet;
able to indisputably declare whether or not an individual committed a given crime.
However, in reality the DNA evidence itself may be inconclusive or misleading as to
whether the suspect (whose DNA is being used) committed the crime in question.
Take, for example, the fact that in 2008 Baltimore police detectives instructed lab
technicians not to follow up on convicted criminals’ DNA obtained at crime scenes
in at least nine homicide, sexual assault, and burglary cases because the detectives
determined such DNA evidence was not relevant to their investigations (Fenton,
2008). Contrary to the beliefs of universal DNA advocates, sometimes DNA
evidence can provide more red herrings than the ability to more efficiently and
effectively solve crimes. As Baltimore police spokesman Sterling Clifford said
regarding the nine cases,
Very often those crime scenes are enormous, sometimes covering entire city blocks. You
can imagine that a great deal of material gets picked up that’s later determined to be too
old or just not connected to the crime where it was picked up. In a city where close to
100,000 people were arrested in one single year, the chances that you’re going to turn up
evidence of somebody with a criminal history being at or near a crime scene are pretty
good. (Fenton, 2008)
Error with biometrics evidence can arise in the operation of biometrics databases
themselves. In 2008, the Baltimore city police laboratory director Edgar Koch was
fired because it was discovered that a dozen unknown genetic samples found in
evidence actually turned out to be the DNA of lab employees (Fenton, 2008).
Defense attorneys and forensic experts said flaws that allowed such contamination to
occur likely indicated more widespread problems at the laboratory (Fenton, 2008).
Donna Birks was a latent-print examiner for the Florida Department of Law
Enforcement (FDLE). The Orlando Sentinel reported that the FDLE had found six
instances where Birks had identified suspects even though the fingerprints were
inconclusive, and a seventh instance where Birks had pegged the prints to the wrong
person (Stutzman, 2007). Another print examiner, who had in fact reported Birks’
suspect behavior to managers, was also found to have made errors in fingerprint
identification and had verified some of Birks’ erroneous judgments (Stutzman, 2007).
Surprisingly, Birks did not appear to have acted fraudulently or maliciously in her
errors; FDLE Sheriff Don Eslinger said ‘from what we’ve been able to gather, she
just thought she was right’ (Stutzman, 2007). This last point is illuminating and goes
to Tim Sparapani’s quote at the beginning of this section: ‘We think science is going
to be the solution to all our problems’. While the forensic biometrics data itself may
be physically inalienable (which itself is a debatable proposition), it is humans who
still analyze, interpret, and make decisions as to whether it accurately ‘matches up’
with a given suspect in a criminal investigation. Science is seen to be a ‘silver bullet’,
a kind of framing that acts to short-circuit analytical scrutiny of the methods and
procedures employed in the operation of biometrics databases. Birks had worked
1500 cases, 300 of which the FDLE is reworking in order to discern any further
errors (Stutzman, 2007). Criminal justice should not become any less rigorous simply
because science is involved.
5.2. Paul Monteleoni’s arguments for a universal DNA database

As stated in Section 3, one of the major problems with indefinite retention of DNA
information is the fact that for those individuals whose DNA information is
retained, the presumption of innocence in any criminal investigation for those
individuals is greatly reduced as compared to the presumption of innocence for a
member of the general population whose DNA information is not retained by law
enforcement agencies. In the USA, the lowering of the presumption of innocence
creates serious issues for individuals whose DNA information has been extracted
because the judicial doctrines in place are poorly equipped to handle the nuances of
the different status of individuals and their resultant different privacy interests. Since
DNA information is being retained more and more, and retained indefinitely by law
enforcement agencies,30 individuals who have their DNA information collected are
unfairly subject to the differential treatment of a greatly reduced presumption of
innocence. One way to solve this problem is for the US Supreme Court to adopt the
proportionality rule articulated in S and Marper v. UK as proposed in Section 4. An
alternative would be for a smoothing of the presumption of innocence by placing the
rest of the population on equal footing as these individuals by making universal
DNA extraction compulsory. However, it is the position of this paper that such
compulsory universal DNA extraction results in an unacceptable infringement on
individuals’ privacy.
Monteleoni in his article in the New York University Law Review, like Amar, also
argues for a universal DNA database. He first considers a ‘general balancing test’:
‘why not evaluate a search’s reasonableness simply by weighing the state’s interest [in
crime prevention] against the intrusion on individual privacy?’ (Monteleoni, 2007,
p. 271). He then dismisses a general balancing test, and balancing tests as a group, as
being ‘too subjective, and too vulnerable to slippery slopes, to undergird the type of
privacy that the Fourth Amendment requires’.31 Monteleoni goes on to suggest ‘it
would be best to create a category for reasonable criminal DNA databases as a new
exception to the warrant requirement’ (Monteleoni, 2007, p. 272).
Part of Monteleoni’s reasoning why a balancing test would not work is that it is
too nebulous, giving less than competent judges no guidance as to how to determine
whether a search using a DNA database is reasonable.32 Monteleoni’s solution is to
216 M. Lwin
have database statutes impose ‘the same privacy burden on every member of society’,
since ‘a well-functioning democratic legislature could be more competent than the
judiciary in determining whether searches or seizures authorized by the statute are
reasonable’ (Monteleoni, 2007, p. 274). Monteleoni aims to evade the issue of
privacy by using the principle of popular delegation of authority to democratic
legislatures to label DNA database searches as ‘reasonable’ within the meaning of
the Fourth Amendment. By rightly pointing out that legislatures have little incentive
to respect the privacy rights of convicts and arrestees, since criminal defendants are
typically ‘not politically well-represented constituencies’ (pp. 273–274) Monteleoni
comes to the conclusion that a universal DNA database would be more effective
because legislatures ‘have tremendous incentive to respect the privacy of their
constituencies as a whole’ and therefore legislatures would heavily scrutinize the
operations of DNA databases for abuse and misuse and implement legislative
safeguards protecting citizens’ privacy interests. Monteleoni goes so far as to say that
a universal DNA database,
one requiring sample collection from the entire population . . . would not be enacted, or
if enacted would not long survive, if most of the populace was materially dissatisfied
with the privacy burdens it imposed. As a result, any statute that passes through such a
process is likely to have substantial privacy safeguards, and thus the passage of such a
statute can be seen as prima facie evidence of the statute’s reasonableness under the
Fourth Amendment.’ (p. 274)
Monteleoni’s argument is too deferential towards national and state legislatures. The
UK, as is shown in Marper, has a set of statutes that were too intrusive on
individuals’ privacy rights, which is why the European Court of Human Rights
found against the UK government. The UK statutes are similar to some US statutes
in that the UK statutes allowed for indefinite retention of DNA information by law
enforcement agencies simply because of an arrest, without qualifying retention by
looking to see whether the individual was actually convicted of the crime he or she
was arrested for or looking at the seriousness and nature of the crime in question.33
Monteleoni assumes that the US population will be highly motivated and attuned to
privacy issues, when recent reporting has indicated the opposite.34 The lack of
response to the UK’s sweeping DNA database law by its citizens is an empirical
example of just how little most people care about privacy issues regarding DNA
databases. Monteleoni articulates a ‘universality exception’ to the Fourth Amend-
ment’s warrant requirement, which short-circuits the role of courts, effectively
creating a presumption of a reasonable search if the DNA database search was
performed (1) ‘pursuant to a statute requiring exactly the same search or seizure to
be performed on every member of the public to the same degree and on the same terms,
and (2) the statute was produced by a well functioning democratic political process’
(Monteleoni, 2007, p. 274. Emphasis added). Monteleoni is willing to sweepingly
lower all the privacy interests of all US citizens indiscriminately in exchange for the
tenuous prediction that those privacy interests will be more rigorously policed by
legislatures because more valued constituents than the typical convict or arrestee are
implicated. Monteleoni’s proposed solution amounts to taking a sledgehammer to
the clunky ‘special need’ and ‘diminished privacy interest’ tests currently employed
by US Circuit Courts when only the Marper scalpel is needed.
The major danger of Monteleoni’s ‘universality exception,’ similar to Amar’s
optimism for junk DNA, is that it is wholly predictive: it relies on the future
benevolence of government, tempered by public opinion and oversight, to

successfully limit the scope of DNA databases. Asserting that ‘not all chain
reactions are evil’, Monteleoni acknowledges that he is engaging in ‘pure speculation’
when he suggests that a universal DNA database will reduce crime and increase
public respect for government and law enforcement (p. 279). He supports his
speculations only by saying that the other way, i.e. ‘the fear that accurate law
enforcement, achieved without revealing private details of people’s lives, would lead
to totalitarianism’ (p. 279), is also as much speculation. Unfortunately, simply
pointing out that two wildly differing predictions are possible does not make an
argument for one of those two predictions more persuasive, particularly when the
argument advocates for an overwhelming diminution of everyone’s personal privacy.
One would think that when faced with uncertainty in the decision between two
choices, the more drastic, sweeping choice should be declined for the incremental,
careful option. If it turns out that adoption of the Marper proportionality test has
severely unsatisfactory effects, however unlikely, the US government and its courts
are still free to consider Monteleoni’s solution. By contrast, to take up Monteleoni’s
sledghammer at the initial tension point makes it difficult to return to a more
moderated approach. This is especially so given the US population’s indifference
regarding complex issues of privacy. Instead of the universal infringement on the
privacy of all US citizens Monteleoni supports, the more measured, careful approach
of Marper is recommended.
US jurisprudence, as Monteleoni advocates, should create a new exception for
the unique nature of DNA databases. However, the test to be applied by judges in
this situation should not be a ‘universality exception’, but the holding of the
European Court of Human Rights in Marper. Citizens’ privacy interests should
fluctuate depending on their status as arrestees, acquitted persons, persons whose
charges were dropped against them, convicted persons and the seriousness of the
crime. Courts should require states to craft their DNA database statutes to
differentially treat persons according to these categories (and any materially new
ones that may arise), looking to expunge their sensitive DNA cellular samples and
profiles for those individuals who are ultimately not convicted of a crime, and retain
DNA information for those individuals who are convicted of a crime.
Monteleoni’s proposal is over-predictive and overbroad. It would be more
prudent, especially considering the unknown results from the progress of
technological vis-à-vis ‘junk DNA’, to be risk averse regarding predictions and
underbroad regarding the general population.
6. Conclusion
DNA and other biometrics advances and their databases will always likely be a little
ahead of the law: the law is a poor predictor of the future developments of
technology. This is why the sweeping advocacy for universal and compulsory DNA
databases by Akhil Amar and Paul Monteleoni are overbroad and dangerous: they
are too optimistic about the future dangers of technology. Since technology is always
at least one, and more often than not, two or three figurative steps ahead of the law,
it is better for predictive legal doctrines to be underbroad and risk averse, weighing
privacy interests greater, than to have legal doctrines be overbroad and risk
deferential, assuming that the risk will more likely have positive rather than negative
results.
218 M. Lwin
US circuit courts should adopt the Marper proportionality test in handling

privacy issues with DNA databases instead of using the current ‘special need’ and
‘diminished privacy interest’ tests. The Marper test is more nuanced, in that it adjusts
the amount of privacy infringement allowed to the government according to the
status of the individual as arrestee, acquitted person, person against whom the
charges have been dropped, convicted person, and also factoring in the seriousness
of the crime. The Marper test is also more transparent, as it clearly articulates the
public interest and the private interests involved. It is structured, weighing the status
of the individual against the nature of the biometrics information at hand. It can also
be adapted well to Fourth Amendment jurisprudence. Adoption of the Marper test
by US courts would do well to streamline and provide a coherent legal framework
for the varied or non-existent expungement provisions in state laws.
State law should follow federal law in adopting expungement provisions that
require expungement of DNA information from state law enforcement agencies’
DNA databases when the individual in question has the conviction pending against
him or her dropped, dismissed, or the individual is acquitted of the crime. Both
federal and state laws should make their expungement provisions sophisticated,
taking into account the seriousness of the offense and adjusting the duration of
retention of DNA information appropriately. Many states as of this writing either do
not have expungement provisions for DNA information at all, or have expungement
provisions for the criminal records and are spotty in their expungement of DNA
records and/or DNA samples.
Notes
1. See National Conference of State Legislatures (2010), ‘As of July 2008, the federal
government and all states except Idaho, Nebraska, New Hampshire, and Pennsylvania
authorized DNA collection from people convicted of any felony. In addition, 16 states
authorized DNA collection from people convicted of some misdemeanors.’
2. See e.g. ScienceDaily (2007, October 26). Not ‘junk DNA’ after all: Tiny RNAs play big
role controlling genes. Retrieved April 25, 2010 from ScienceDaily: http://www.
sciencedaily.com/releases/2007/10/071025112059.htm; Callaway (2008); ScienceDaily.
(2005, October 25). UCSD study shows ‘junk’ DNA has evolutionary importance.
Retrieved April 25, 2010 from ScienceDaily: http://www.sciencedaily.com/releases/2005/
10/051020090946.htm; Walsh and Salleh (2004); PhysOrg.com. (2008, November 4).
‘Junk’ DNA proves functional. PhysOrg.com. Retrieved April 25, 2010 from PhysOrg.
com: http://www.physorg.com/news145038245.html
3. See Monteleoni (2007, p. 254): ‘DNA collection also resembles fingerprinting in that it
imposes a light but ongoing burden on privacy’. Paradoxically, the author goes on to say on
p. 256 that DNA collection can reveal ‘much more personal information than can
fingerprinting’.
4. See The European Court of Human Rights. (2010). The Court: Basic information on
procedures. Retrieved April 25, 2010 from http://www.echr.coe.int/ECHR/EN/Header/
TheþCourt/HowþtheþCourtþworks/ProcedureþbeforeþtheþCourt/ (‘any party may
request that the case be referred to the Grand Chamber if it raises a serious question of
interpretation or application or a serious issue of general importance’).
5. See The European Court of Human Rights, The Court: Basic information on
procedures. ‘You must have used all the remedies in the State concerned that might
have been able to redress the situation you are complaining about (usually, this will mean
an application to the appropriate court, followed by an appeal, where applicable, and
even a further appeal to a higher court such as the supreme court or constitutional court, if
there is one)’.
6. Cf. S and Marper v. UK, 2008, para. 104 (‘However, the intrinsically private character of
this information calls for the Court to exercise careful scrutiny of any State measure
authorising its retention and use by the authorities without the consent of the person
concerned’).
7. See S and Marper v. UK, 2008, para 107. (‘The core principles of data protection require
the retention of data to be proportionate in relation to the purpose of collection and insist
on limited periods of storage’) (emphasis added).
8. S and Marper v. UK, 2008, para 110 (‘This position is notably consistent with Committee
of Ministers’ Recommendation R(92)1, which stresses the need for an approach which
discriminates between different kinds of cases and for the application of strictly defined
storage periods for data, even in more serious cases (see paragraphs 43–44 above).
Against this background, England, Wales and Northern Ireland appear to be the only
jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint
and DNA material of any person of any age suspected of any recordable offence’).
9. S and Marper v. UK, 2008, para 110 (‘It is true that the retention of the applicants’
private data cannot be equated with the voicing of suspicions. Nonetheless, their
perception that they are not being treated as innocent is heightened by the fact that their
data are retained indefinitely in the same way as the data of convicted persons, while the
data of those who have never been suspected of an offence are required to be destroyed’).
10. See e.g. Samson v. California, 126 S. Ct. 2193, 2197 (2006) (convicts have a diminished
expectation of privacy).
11. Ignore the collection of personal biometrics data for government personnel and other
employees who work certain high-security professions, like airport personnel.
12. This is an assumption: just because a particular individual has committed and been
convicted of a crime in the past does not necessarily mean he has committed the present
crime in question. The presence of his personal biometrics data in the UK government’s
database is one manifestation of this assumption, by treating convicted persons differently
from non-convicted persons by having their biometrics data stored and searchable.
13. See e.g. Kraklio, 451 F.3d at 923 (Eighth Circuit); Nicholas, 430 F.3d at 658 (Second
Circuit); Sczubelek, 402 F.3d at 182 (Third Circuit); Padgett, 401 F.3d at 1277 (Eleventh
Circuit); Kincade, 379 F.3d at 821 n.15 (Ninth Circuit); Green, 354 F.3d at 676
(Seventh Circuit); Groceman, 354 F.3d at 413 (Fifth Circuit); Boling, 101 F.3d at 1340
(Tenth Circuit); Jones, 962 F.2d at 306 (Fourth Circuit).
14. See e.g. Agnello v. United States, 269 U.S. 20, 30 (1925) (law enforcement authorities’
right to conduct a warrantless search incident to arrest is ‘not to be doubted’).
15. Kraklio, 451 F.3d at 924.
16. See Monteleoni (2007, pp. 263–263) (citing Nat’l Treasury Employees Union v. Von Raab,
489 U.S. 656, 665–666 (1989) (‘Where a Fourth Amendment intrusion serves special
governmental needs, beyond the normal need for law enforcement, it is necessary to
balance the individual’s privacy expectations against the Government’s interests to
determine whether it is impractical to require a warrant or some level of individualized
suspicion in the particular context’).
17. City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000).
18. Nicholas v. Goord, 430 F.3d 652, 655 (2d Cir. 2005), cert. denied, 127 S. Ct. 384 (US Oct.
10, 2006); Green v. Berge, 354 F.3d 675, 677–678 (7th Cir. 2004) (citing Shelton v.
Gudmanson, 934 F. Supp. 1048, 1050–551 (W.D. Wis. 1996)); United States v. Kimler, 335
F.3d 1132, 1146 (10th Cir. 2003) (citing Miller v. U.S. Parole Comm’n, 259 F. Supp. 2d
1166, 1176 (D. Kan. 2003)).
19. Nicholas, 430 F.3d at 668; Green, 354 F.3d at 678 (citing Shelton, 934 F. Supp. at 1050–
1051); Kimler, 335 F.3d at 1146 (citing Miller, 259 F. Supp. 2d at 1176).
20. Monteleoni (2007, p. 265) citing Nicholas, 430 F.3d at 669 (DNA samples ‘in fact provide
no evidence in and of themselves of criminal wrongdoing’).
21. See e.g. United States v. Weikert, 504 F.3d 1, 7 (1st Cir. Aug. 9, 2007); United States v.
Banks, 490 F.3d 1178, 1183 (10th Cir. 2007); United States v. Kraklio, 451 F.3d 922, 924
(8th Cir. 2006); United States v. Castillo-Lagos, 147 Fed, App’x 71 (11th Cir. 2005).
22. See e.g. United States v. Weikert, op. cit., note 21; United States v. Banks, op. cit., note 21;
United States v. Kraklio, op. cit., note 21; United States v. Castillo-Lagos, op. cit., note 21.
23. United States v. Weikert, at 1191–1192 (‘The Act also expressly limits the Government’s
right to use a DNA sample: it may be used only (1) for law enforcement identification
purposes; (2) in judicial proceedings if otherwise admissible; (3) for criminal-defense
220 M. Lwin
purposes; and (4) for a population-statistic database for identification research, or for
quality-control purposes, if personally-identifiable information is removed’).
24. United States v. Kraklio, 451 F.3d 922, 924–925 (8th Cir. 2006); United States v. Sczubelek,
402 F.3d 175, 184 (3d Cir. 2005), cert. denied, 126 S. Ct. 2930 (2006); Padgett v. Donald,
401 F.3d 1273, 1280 (11th Cir. 2005), cert. denied sub nom. Boulineau v. Donald, 126 S. Ct.
352 (2005); United States v. Kincade, 379 F.3d 813, 832 (9th Cir. 2004) (en banc), cert.
denied, 544 U.S. 924 (2005); Groceman v. Dep’t of Justice, 354 F.3d 411, 413 (5th Cir.
2004); Jones v. Murray, 962 F.2d 302, 306–307 (4th Cir. 1992), cert. denied, 506 U.S. 977
(1992).
25. See Moore, S. (2009, April 18). F.B.I. and states vastly expand DNA databases. New
York Times. Retrieved from http://www.nytimes.com/2009/04/19/us/19DNA.html?hp
(‘As in Britain, expanding genetic sampling in the United States could exacerbate racial
disparities in the criminal justice system, according to Hank Greely, a Stanford
University Law School professor who studies the intersection of genetics, policing and
race. Mr. Greely estimated that African-Americans, who are about 12 per cent of the
national population, make up 40 per cent of the DNA profiles in the federal database,
reflective of their prison population. He also expects Latinos, who are about 13 per cent
of the population and committed 40 per cent of last year’s federal offenses – nearly half
of them immigration crimes – to dominate DNA databases’).
26. See Pollack (2009).
27. See Amar (2002) (‘Of course, such a database raises serious privacy concerns: our DNA
code contains much information that could be used in sinister ways. Information about
medical predispositions could threaten a person’s health insurance, for example.
Information about paternity could be used for purposes of embarrassment or blackmail’).
28. Cf. Roddy (2008, 30 November) (‘Mr. Amar’s proposal would require strict limits on the
use of that data and that the information taken from the DNA is only so-called ‘‘junk
DNA’’ coding – enough to identify the person, but not enough to give up information
such as a person’s genetic predispositions to various diseases that could affect their
employment or insurability’).
29. See, e.g. ScienceDaily. (2007, 26 October). Not ‘junk DNA’ after all: Tiny RNAs play big
role controlling genes. Retrieved April 25, 2010 from ScienceDaily http://www.science-
daily.com/releases/2007/10/071025112059.htm; Calloway (2008)
30. See F.B.I. and states vastly expand DNA databases. New York Times (2009, 18 April),
available at http://www.nytimes.com/2009/04/19/us/19DNA.html?hp (‘Law enforcement
officials are vastly expanding their collection of DNA to include millions more people
who have been arrested or detained but not yet convicted’).
31. Monteleoni (2007) citing Strossen, Nadine. (1988). The Fourth Amendment in the
balance: Accurately setting the scales through the least intrusive alternative analysis. New
York University Law Review 63 (1173): 1184–1207 (arguing that Fourth Amendment
balancing tests are subjective and inappropriately favor government).
32. See Monteleoni (2007) at 270–271 (‘If judges were competent simply to weigh the
competing interests for each search and determine whether that search was reasonable
there would be no need for a uniform warrant requirement in the first place’).
33. See, e.g. Moore, S. (2009, 18 April). F.B.I. and states vastly expand DNA databases. New
York Times. Retrieved from http://www.nytimes.com/2009/04/19/us/19DNA.html?hp
(California law: ‘The system will search for matches between Mr. Roberts’s DNA and
other profiles every Monday, from now into the indeterminate future – until one day,
perhaps decades hence, Mr. Roberts might leave a drop of blood or semen at some crime
scene’).
34. See, e.g. Sullivan (2006) (‘Only a tiny fraction of Americans – 7 per cent, according to a
recent survey by The Ponemon Institute – change any behaviors in an effort to preserve
their privacy. Few people turn down a discount at toll booths to avoid using the EZ-Pass
system that can track automobile movements’).
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ISSN: 1360-0834 (Print) 1469-8404 (Online) Journal homepage: https://www.tandfonline.com/loi/cict20

Privacy issues with DNA databases and

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Privacy issues with DNA databases and retention of individuals’ DNA

ISSN 1360-0834 print/ISSN 1469-8404 online

The United States Supreme Court has recognized a presumption of innocence

crime – in eﬀect, adding incremental degrees to the retention and possible

2. The presumption of innocence and the beyond a reasonable doubt standard

The Supreme Court revisited standard-of-proof issues in 1970 in the landmark

2.2. Comparing and contrasting ﬁngerprints and DNA

2.2.2. Fingerprints overview

2.2.3. DNA overview

be ‘junk DNA’, containing no genetic information of signiﬁcance, e.g. evidence of

2.2.4. Fingerprints and DNA: a comparison

enforcement agencies results in a reduction of an individuals’ privacy interests, as

3. The Marper Decision of the European Court of Human Rights

Said another way, this principle of proportionality in the biometrics retention

must be treated diﬀerently because of this distinction. Fortunately, the non-

4. The Marper proportionality test should be applied to US DNA database

The Fourth Amendment of the United States Constitution prohibits unreasonable

whether or not a given search or seizure is reasonable or unreasonable. US

4.2. The ‘special need’ test

4.3. The ‘diminished privacy interest’/totality of the circumstances/general

express[es] no opinion on the constitutionality of the retention and searching by the

after careful consideration, we conclude that the government’s important interests in

This ambiguity, as Monteleoni rightly points out, is unacceptable as it features a

In United States v. Kraklio, the court concluded that

Given probationers’ diminished privacy rights, the minimal intrusion involved in

4.4. US circuit courts should adopt the Marper test

5. Will a universal DNA database solve the burden problem?

A possible solution to the problem of the presumption of innocence outlined above is

5.2. Paul Monteleoni’s arguments for a universal DNA database

benevolence of government, tempered by public opinion and oversight, to

US circuit courts should adopt the Marper proportionality test in handling

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