Saturday, June 6, 2015
Ken Strutin has posted DNA Without Warrant: Decoding Privacy, Probable Cause and Personhood (Richmond Journal of Law and Public Interest, Vol. 18, No. 3, p. 319, 2015) on SSRN. Here is the abstract:
An arrest is not a medical procedure and probable cause is not consent, and yet for purposes of genetic sampling they have become so. The Constitution considers people to be information containers with rights. And for the most part, the confiscation of a person's genome in the stationhouse is a search. But the Supreme Court seems to parse constitutional privacy between data that originates from within (biologics) and data stored without (technology). Relying on the history of identification metrics, the necessity of stationhouse identification and the rationale of custodial control, the Court has lowered the threshold of biological privacy at arrest. In contrast to the low esteem in which privacy interests in the human genome seem to be held, there is a societal, even global, consensus building over the protection of privacy in digital data, such as the right to be forgotten. Today, the right to privacy in ourselves and in our machines are at loggerheads due in large part to the Supreme Court's perceptions of privacy, probable cause and personhood.
In Part I, this article explores the challenges to privacy, personhood and probable cause raised by DNA collection as identification sanctioned in Maryland v. King. Part II considers the presumed infallibility of DNA testing that undergirds the Supreme Court's embracement of genetic identification. Lastly, in Part III, this article will try to decipher the Court's Fourth Amendment logic in denying privacy to the information in human cells but embracing them in cell phones in Riley v. California.