An Associated Press (2007) article, published online by NBC news, reports that police authorities covertly followed a suspect in an older homicide investigation for purposes of collecting DNA evidence. Police were successful in the suspect’s apprehension after a sample of spit collected off of the sidewalk pointed to his being the perpetrator (Associated Press, 2007). While unorthodox, the practice of collecting DNA evidence in public places in not all that unusual. The article also cites a similar method employed in the case of the so-called “Bike Path Rapist,” allegedly responsible for three murders and untold numbers of sexual assaults in Buffalo, New York for a period lasting for 20 years. In this case, police managed to collect DNA samples from flatware left on a table at a restaurant where the suspect and his wife had just enjoyed an evening meal (Associated Press, 2007). It is instances such as the two, while seemingly legal under present laws, appears to raise significant ethical concerns as they relate to privacy (Associated Press, 2007).
The practice of collect “abandoned” DNA that has been left in public spaces appears to remain a method by choice when police investigations, especially as they relate to major crimes, come to a standstill. Without such a measure police would not have sufficient reason to obtain a sample by court-order because they lack the evidence to obtain permission. The practice raises concern from University of California law professor Elizabeth Joh, who argues “If we look at this kind of evidence as abandoned, then it really permits the police to collect DNA from anyone—not just cold case issues—from anyone at any time and really for no good reason or any reason at all” (Associated Press, 2007). Professor Joh raises a vital ethical issue, which to this day has yet to be addressed; while there appears to be two instances where police were successful at apprehending the suspects in this manner if the practice become commonplace in criminal investigations then a strong argument could be made that surreptitious DNA collections would become standard operating procedure in this day and age of indiscriminate surveillance of American citizens.
There exists a cadre of methods employed by law enforcement officials when collecting DNA samples. Some of them are quite direct, as in instances where those who are incarcerated must provide a swab of saliva for purposes of being included in both national and state databanks (Rothstein, & Talbott, 2006). But there are other examples where the ethics of collecting DNA samples are not entirely clear, other than harvesting samples in public places there is also the practice of collecting DNA evidence through dragnets or even from the family members of suspects as they too have discarded some article that may contain a sample of their own DNA (Rothstein, & Talbott, 2006).
The Supreme Court has made it clear that, at least in the issue of collecting evidence from abandoned materials or property, there should be no expectation of privacy on the part of suspects apprehended as a result of such investigative methods. In fact, it is relatively easy to understand the legal lengths that law enforcement can take in order to collect evidence in criminal investigations because their exists reams of legal and criminal justice procedure pointing to this fact. But with DNA the issue is not at all clear-cut, especially as it pertains to the issue of privacy, “What law enforcement standard should apply to individuals’ interest in being free from having their DNA analyzed by the police?” (Rothstein, & Talbott, 2006, p. 160).
In cases such as the two cited at the beginning of this paper the final resolution was that both suspects were convicted of their crimes. But such successes should not obscure the issue of privacy as it relates to the collection of DNA samples. Unfortunately, no solution to this dilemma has yet to be forthcoming. As Professor Joh asks, “Is DNA sampling going to be ordinary and uncontroversial for the general population, in which case abandoned DNA may not be so alarming, or does it raise a whole host of privacy questions?” (Associated Press, 2007). The American public has acquiesced on a number of occasions concerning their privacy, which was in direct result of the tragic events that had occurred on September 11, 2001.
But further suborning of privacy, even in something that may be viewed as relatively innocuous as a discarded cigarette butt, is a different matter entirely. If the will of the people includes allowing authorities even more discretion when it comes to peering into lives and, now, bodies, then perhaps it is time to re-evaluate what the founders of this country meant about liberty. Former Supreme Court Justice Louis Brandeis (1856-1941) was quite concerned about the issue of privacy because he believed that citizens must protect themselves from the intrusion of government by any means they see fit, “Justice Brandeis alerted us not to let the exigencies of the day and the beneficent intent of government actions weaken our resolve in defending privacy and safeguarding liberty” (Rothstein, & Talbott, 2006, p. 162).
Again, this issue remains to be resolved. But debates remain waiting on the nature of collecting abandoned DNA sample, and even the entire process of collecting and storing DNA evidence and at the center may be in attempting to differentiate whether genetic material is part of one’s health characteristics making it a privacy concern related to medicine? Or is DNA an exception, “Scientifically, it is questionable whether health information can be meaningfully divided into genetic and non-genetic information; practically, it is unlikely that health information can be segregated to permit the disclosure of only one type of information” (Rothstein, & Talbott, 2006, p. 160). Perhaps the law is not constructed with when considering that science advances each and every day. If not, at least on the issue of collecting DNA evidence it seems clear enough that a rethinking of current legislation needs to take place as soon as possible.
- Associated Press. (2007, March 18). DNA collection raises ethics issues. Retrieved from http://www.nbcnews.com/id/17669936/ns/us_news-crime_and_courts/t/creative-dna-collection-raises-ethical-questions/#.VYg9MyZZ1hs
- Rothstein, M. A., & Talbott, M. K. (2006). The expanding use of DNA in law enforcement:
What role for privacy? The Journal of Law, Medicine & Ethics, 34(2), 153-164. Retrieved from http://beck2.med.harvard.edu