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.

Previous post:

Next post: