Abandoned DNA: Private or Property?

by on October 29, 2008 · 28 comments

Yesterday, after my Criminal Law class, I went to a lunch talk sponsored by the Stanford Biolaw and Health Policy Society about “abandoned” DNA – that is, DNA traces that people leave all over the place. It was given by Prof. Elizabeth Joh, visiting Stanford Law this year from UC Davis Law. She focused on her recent law review article on the subject.

Joh’s basic argument was that DNA is fundamentally different than the other detritus we abandon on a regular basis. She contended that, though we might not have an expectation that the soda bottle we tossed into the public trash can won’t be seen by anyone, we have an expectation that it won’t be mined for our saliva and the genetic information it contains. Joh even argued that DNA traces are fundamentally different from fingerprints, since fingerprints can only identify us, but cannot give investigators a view into fundamentals about who we are (including our health risks).

Joh contrasted her view, which focuses on privacy, from what she called the “old” trespass view. Under that perspective, what was wrong about an FBI agent slipping into your house to implant bugs was not that the government could now listen into everything you say in your home, but rather the property violation involved in breaking in. Similarly, under the trespass view, a cop could not run a cotton swab on the inside of your mouth to collect DNA (without a warrant) because it would violate your property in yourself, not because it would reveal your genetic information to the government. But the trespass view would have no problem with the government picking up that soda bottle out of the trash and collecting your DNA from it, to match you to a crime.

Governments have been wary of actively collecting this abandoned DNA, however, and so have gone to great lengths to get suspects to voluntarily send the government their DNA. For example, they’ll ask suspects to mail them information, then get their saliva from the envelope or stamp they licked. Joh is wary of these practices as well.

Joh fears that if we let governments analyze abandoned or given DNA, they might create a national database of DNA, like the present national fingerprint database. Governments may not use this just to identify suspected criminals; they may also mine it for racial data or to study genetic predispositions for criminality.

Though I would strongly oppose the creation of such a database, I would do so on fundamentally different grounds than I would oppose FBI agents breaking into my apartment and installing hidden cameras. I guess I’m old-fashioned, but the trespass argument seems to me much stronger – and of a fundamentally different character – than the privacy argument. As Jim Harper has discussed, we don’t really have a fundamental right to privacy, in the same way as we have a fundamental right to property. Privacy is a set of relations we have with others, by which we share information with them. Property is a basic right to own ourselves and our stuff.

I would have no problem with the national DNA database if I were certain that the government was totally benevolent and could never do anything wrong with the information at its disposal. But, of course, that is not the world in which we live. We find the national DNA database scary not because it is inherently wrong, but because a lot of bad can be done with it. This is fundamentally unlike breaking into someone’s house. Even if I knew that the government would only do good things with the data it collected from my apartment and keep it entirely secure, I would still object to breaking into my apartment and vandalizing it. That action violates my rights, my rights to my property. The DNA database is “just” bad policy – a waste of money, and a dangerous new tool for governments to do evil.

  • http://www.technagora.com Libby_J

    Don't they always steal the suspect's DNA when it's left in public on CSI?

    A thought: wouldn't there be benefits to a government ID system based on DNA rather than an arbitrarily-assigned number that is easy to defraud? Not that I jump for joy at the idea of a DNA database in government's hands (I certainly don't), I'm just saying… ID theft would be harder to pull off.

  • Ryan Radia

    The state can search your trash without a warrant, so I assume the same reasoning would permit searches of DNA discarded in public. I can't imagine you have a reasonable expectation of privacy for, say, hair follicles that you shed on the street, even if the follicles happen to contain more sensitive details about you than a fingerprint.

    Establishing a chain of custody for abandoned DNA evidence might be tough. Unlike fingerprints, which only exist on objects that have been touched, DNA samples get deposited constantly without any way of knowing. A diligent forensics team could probably find hundreds of unique DNA sequences in any lobby or hallway. Proving in court that an abandoned hair follicle belongs to a specific individual would probably require some very credible evidence.

    I suppose paranoid individuals can always do what Ethan Hawke did in Gattaca — shave and scrub religiously to avoid depositing any unwanted DNA samples in public.

  • http://www.blaynesucks.com Aaron Massey

    Property rights and privacy rights are inextricably linked. For example, let's assume that you start from a strict property rights view and assume privacy rights don't exist. In this case, you can have a house with closed doors and windows into which no one can see. Rationally, the right to property grants you a defacto right to some level of privacy.

    Take the other extreme and assume that you start from a strict privacy rights view and assume that property rights don't exist. Let's even use Jim's definition: “The subjective condition that people experience when they have the power to control information about themselves.” There's a lot of different kinds of information about oneself, but to have any power to control that information then a defacto property right is created to some extent. If you want to be able to control who can see you naked, then you have to have the power to prevent people from encroaching on some personal space.

    Personally, I think the privacy argument is a bit more persuasive for abandoned DNA. If the 4th amendment protects against unreasonable searches and seizures, then doesn't 'unreasonable' simply mean that the government can't do anything a citizen wouldn't normally be able to do? Normal citizens could find my DNA all over the place: hair, skin cells, and saliva from drink cans. However, the government becomes unreasonable when it starts sequencing my genome or whatever is involved in a DNA test. Normal people don't do that.

    I am not a lawyer, so it's difficult for me to say that either property or privacy has the edge in freely given DNA. I suspect there are rules for evidence of which I'm simply unaware.

    Anyhow, I think the property and privacy arguments are just linked to some extent, and I'm not sure what the benefit is to picking a side when both of them seem to be relevant. (I'd love to hear thoughts on this.)

    Also, neither a property rights view nor a privacy rights view seems to provide much guidance in the hard cases. If I had an identical twin, who owns my DNA? Even siblings have genetic information that would be very useful to insurance companies wondering about health risks. Should I be legally allowed to provide my DNA to an insurance company wondering if they should cover my brother? How does a property or a privacy rights argument help here? (Does Joh address this in her article?)

  • http://www.openmarket.org/author/alex-harris/ AlexHarris

    As a legal matter, the abandoned DNA case is not viewed as a search or a seizure, in the same way as I would not be “searching” you if I picked up a magazine you left behind in the airport lounge.

    It is also true that property rights and privacy overlap. For example, if you think that you have intellectual property over your genetic code (which seems to me incredibly difficult to justify), then you get the DNA protection you want through the IP mechanism. I'm just arguing that:
    a. In some cases (for example, the abandoned DNA case), a property rights view and a privacy rights view come to different conclusions; and
    b. The property rights view is more compelling.

  • http://www.blaynesucks.com Aaron Massey

    The problem with the magazine analogy is that when you leave the magazine behind you are divesting any property right you had to it. Perhaps this is accidental, perhaps not, but either way it's 'abandoned' property that anyone can claim.

    If the analogy carries over to DNA, then there is no trespass in picking up a used soda can and then performing a DNA test. However, if DNA is fundamentally different in that we still have property rights to our abandoned DNA, then why wouldn't there be *both* a trespass and an illegal search under the 4th amendment for picking up the DNA and then performing a test on it?

    My confusion is that I'm not buying part (a) of your argument yet, which means that I can't even choose for part (b).

    Also, I'm still curious about the twins, siblings, and family members arguments. Heck, make it even more interesting, if we have property and privacy rights to our DNA, then shouldn't couples be able to choose to sell stem cells to research organizations?

  • Ben D

    Some courts have upheld the view that you own your body as property. In this view your DNA (and its source material) is your property, and so property rights apply.

    But arguing backwards, from existing property or privacy law, attempts to impose old templates on new problems.

    Best to go back to the underlying intent of the Bill of Rights, which allocates certain inviolate powers to the individual upon which governments can not encroach. Hence, a new understanding of privacy that can be refined through further legislation, protecting individuals from government information & control mechanisms like DNA databases.

  • brando18

    There already are DNA databases…In all 50 states, in the EU, UK, and Asia, and they all have different laws on their gathering methods. Some is voluntary, most are required if you are a criminal in violent crimes, and some are now even including DNA from crime victims that have given samples.

  • dogbreeders

    I think collecting abandoned DNA without informing the person is outragious. It may have many legal or social welfare use, but it violates privacy. Making database for fingerprints and database for DNA identity are not same. My DNA data may be used for different unwanted and evil purpose without my permission which no one can allow. Doesn’t Govt. have any other ways to trace and identify a criminal by making such database by wasting people’s money???

  • http://www.hobbybreeders.com/Breeders/ Dog Breeders

    I think collecting abandoned DNA without informing the person is outragious. It may have many legal or social welfare use, but it violates privacy. Making database for fingerprints and database for DNA identity are not same. My DNA data may be used for different unwanted and evil purpose without my permission which no one can allow. Doesn’t Govt. have any other ways to trace and identify a criminal by making such database by wasting people’s money???

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    Hey I'v been reading your blog from quite some time now and I just wanted to say keep up the good work.

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