Tuesday, March 17, 2020
The article explores the issue of warrantless police searches of private genealogy databases after Carpenter v. United States, focusing on whether the Fourth Amendment protects DNA test results — both a person’s own results and those of their biological relatives — and whether the third-party doctrine is viable in that context. It examines the Carpenter decision and analyzes the Court’s new modified approach in this area — including its new multifactor balancing test — and the two rationales it employed in limiting the third-party doctrine.Then, in light of Carpenter — and using both the traditional property-based and modern Katz approaches — my article analyzes whether the Fourth Amendment would protect a criminal subject’s DNA data from the police search of a private genealogy database. Exploring the third-party doctrine, it finds that doctrine likely to defeat a claim of DNA privacy under the Katz approach because the assumption-of-risk rationale would apply. Yet the property-based approach discussed by Justice Neil Gorsuch in his Carpenter dissent might still offer DNA protections under a bailment theory. Finally, my article briefly sets forth the need for legislative action to prevent unfettered police action in this area, and I suggest areas for future research.