Experts question growing practice of DNA dragnets: Coercive test may violate rights
One fine day, I get a knock on my door:
Me: Hello; can I help you?
Agent: Hi, I'm Special Agent Ima Doofus from the Federal Bureau of Civil Liberties Curtailment, and I'm wondering if we can get a DNA sample from you?
Me: And why would you be needing that?
Agent: Well, your neighbor, Alma Spurgeon, reported that one of her lawn gnomes was stolen last weekend, so we're canvassing the neighborhood collecting DNA samples so we can identify the thief and bring him or her to justice.
Me: But I was at a Raelians convention in Fargo last weekend, so I couldn't possibly be the one you're looking for.
Agent: Well, perhaps that is true, sir, but we thought you'd still want to cooperate. All the rest of your neighbors have.
Me: I'm sorry, but if the rest of my neighbors had gutted a yak, would I be expected to follow their example?
Agent: You know, sir, I don't like your attitude. We could get a court order and make your refusal to cooperate public knowledge.
Me: Really? And what exactly would I be guilty of? Refusing to pee in a cup? Objecting to you sticking a Q-tip in my mouth? Balking at letting you prick my finger for a blood sample? Perhaps the other people in the neighborhood will see that there is someone here who refuses to let the government invade his privacy.
Agent: Well, sir, do you realize that if one person refuses to cooperate, then another, and another, eventually the terrorists will win?
Me: Only if the terrorists are in the market for lawn gnomes. (Off camera: the sound of a door slamming...)
Yeah, I know, it's a silly example, but the principle behind it is not. Let's say that a law enforcement official shows up at your door one day. He announces that a woman (whom you've never met) who lives two blocks over was brutally raped and murdered. In an effort to help solve the crime, the police are collecting DNA samples from those who "voluntarily" provide them. Of course, if you choose not to "volunteer" a sample, you can be threatened with a court order and the knowledges that your neighbors will know of your refusal to cooperate. If you refuse to "cooperate", does that automatically make you a suspect? Since when should the normal exercising of one's civil rights make one a suspect?
Left unsaid in all of this is whether or not you actually committed the crime. You have a rock-solid alibi, with witnesses and documentation to back up the fact that you were jello-wrestling at the time of the murder. Suddenly, you realize that you are faced with the reality of having to prove your innocence. Wait a minute, here; this is America, right? Not so fast, my friend. Welcome to the brave new world of post-9.11 Amerika.
BATON ROUGE, La. -- Recently, the police asked Shannon F. Kohler if they could swab the inside of his mouth to analyze his DNA. It was a request they made of 800 men in southern Louisiana as they searched for the serial killer who has slain four young women, leaving behind genetic material in each case.
It was his choice, Kohler said the officers told him, but if he refused they would get a court order and that would get in the newspapers and everyone would know he was not cooperating.
The approach was heavy-handed and foolish, he said, especially since he has feet much bigger than the prints left by the killer and had phone bills that show he was at home when the murders took place.
The questions Kohler is raising are also being asked by lawyers and other experts around the country who say the growing use of DNA dragnets like the one here, already one of the largest in U.S. history, is troubling.
The tests, supposedly voluntary, can still be coercive, critics say, not only harassing innocent people but potentially violating suspects' constitutional protections against self-incrimination and unreasonable search and seizure.
Time was when we could be reasonably certain that, no matter what someone might be accused of, our judicial system provided the protection of the presumption of innocence. Post- 9.11, that certainty has proved to be anything but.
Apparently, it is easier for police agencies to harrass the innocent than to do the actual hard investigative work that it takes to solve a crime.
And even those who endorse the idea of DNA sweeps argue over whether, and why, the government should keep on file the genetic profiles of those who are proved to be innocent.
The tests trouble some for the very reason that police find them attractive: They offer the most incontrovertible proof of identity.
The idea for a DNA dragnet -- sampling people who are not suspects but live or work near a crime scene -- emerged in Britain. In 1987, police tested 4,000 men in Leicestershire before the rapist and killer of two girls was caught after he got another man to take the DNA test for him.
One of the first dragnets in which DNA actually identified a killer came in Wales, where a 15-year-old girl was raped and murdered; a neighbor was caught in a DNA sweep of 2,000 men.
By 1998, the practice had taken hold in northern Germany, where 16,400 people were tested before a mechanic was matched to a rape-murder.
In the United States, mass screenings have had less success and stirred up far more controversy. In 1994 and 1995, the Metro-Dade police in the Miami suburbs took more than 2,000 DNA samples in search of a man who had strangled six prostitutes, and initially focused on three possible matches before each man was ruled out.
But the killer was caught only after neighbors found a prostitute bound and gagged in his apartment while he appeared in court on an unrelated robbery charge.
In 1998, the police in Prince George's County, Md., sought DNA samples from 400 male workers at a county hospital where an administrator had been raped and strangled. Union members complained that police were bullying employees and singling out maintenance workers. The killing remains unsolved.
The chief of the county's police force at the time, John Farrell, defended the DNA tests to USA Today in 1998 as analogous to fingerprinting everyone who worked or shopped in a store that was burglarized, to eliminate potential suspects as well as to catch the perpetrator.
But mass fingerprinting is all but unheard of in criminal cases, said James Alan Fox, professor of criminal justice at Northeastern University, precisely because of the probability that a print obtained from a crime scene will turn out to be someone else's other than the criminal's.
While the public has an implied duty to support law enforcement officials as they do the dirty work of keeping us safe, there is no corresponding duty to prove one's innoncence when it is demanded of us. There is nothing voluntary about a police agency requesting the "voluntary" donation of a DNA sample, particularly when it is backed up with the threat of a court order. In that case, it is little more than state-sanctioned coercion and theft of bodily fluids- not to mention an egregious violation of personal privacy. Even post-9.11, this should give all clear-thinking Americans pause- or is it going to take a knock on your door to convince you?
