Comments on: Abandoned DNA: Private or Property?

By: Get Paid To Do Surveys

Get Paid To Do Surveys — Tue, 03 Nov 2009 22:15:24 +0000

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

By: Dog Breeders

Dog Breeders — Fri, 11 Sep 2009 10:06:52 +0000

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???

By: dogbreeders

dogbreeders — Fri, 11 Sep 2009 09:06:52 +0000

By: brando18

brando18 — Tue, 19 May 2009 19:42:45 +0000

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.

By: Ben D

Ben D — Mon, 22 Dec 2008 00:37:18 +0000

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.

By: Aaron Massey

Aaron Massey — Thu, 30 Oct 2008 19:53:09 +0000

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?

By: AlexHarris

AlexHarris — Thu, 30 Oct 2008 17:11:58 +0000

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.

By: Aaron Massey

Aaron Massey — Thu, 30 Oct 2008 08:09:26 +0000

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?)

By: Ryan Radia

Ryan Radia — Thu, 30 Oct 2008 03:35:15 +0000

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.

By: Libby_J

Libby_J — Wed, 29 Oct 2008 20:59:07 +0000

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.