Monthly Archives: December 2013

The DNA Difference: debate over crime-fighting tool

The burglar who stole $3,200 in lottery tickets, 56 packs of cigarettes and $56 left behind few clues: a broken window, a large rock and blood drops on a calculator and a food crate.

The 2011 Bristol Township gas station break-in remained unsolved until earlier this year, when 54-year-old James Lee Wilson Sr. confessed to the crime.

While there was other evidence against Wilson, police said he admitted his role after a court order was obtained for a DNA sample. Wilson’s cheek swab was compared with DNA extracted from the blood collected at the burglary scene and the results matched, police said.

“Bingo — that was it,” Bristol Township Police Lt. Terry Hughes said, adding that Wilson admitted cutting his hand on the broken glass.

Wilson eventually pleaded guilty in Bucks County Court to burglary; he was sentenced to two to five years in prison.

In recent years, DNA testing has become the new gold standard for crime-solving. A growing number of police departments nationwide routinely use the technology that was once reserved for violent crimes to help solve more abundant, but low-priority ones like burglary, theft and vandalism.

Recently, the Bucks County District Attorney’s Office announced that a dozen police departments, led by Plumstead, plan to participate in a local DNA database that the Bensalem Police Department started three years ago.

“It is the future of police work,” Upper Southampton police Chief Ron MacPherson said.

The handful of Bucks County police departments that regularly use DNA evidence with property crimes say it makes a significant difference in solving crimes. Most times, when suspects are confronted with DNA evidence tying them to a crime, they admit guilt, police say.

But the growing popularity of DNA testing in property crimes is not without controversy. Results can take often take a year or longer at the state-run forensics lab, police say. There is also growing concern about privacy and the accuracy of so-called “touch” DNA, which is obtained from items that come in close contact with the body and may result in the transfer of skin cells.

Property crimes keep area police departments the busiest. They are also among the toughest crimes to solve, police say.

Only 10 percent of 3.3 million U.S. burglaries in 2011 resulted in arrests, according to the most recent federal Bureau of Justice Statistics. In Southeastern Pennsylvania, 80 percent of the more than 108,000 reported property crimes were unsolved — and that was the highest rate of property-crime resolution in the state, according to the Pennsylvania Uniform Crime Report data.

A 2008 study found that collecting and testing blood and hair found at crime scenes is far more effective than fingerprints for identifying suspects. The two-year, five-city National Institute of Justice field study also found that suspects identified by DNA had at least twice as many prior felony arrests and convictions as those identified through traditional police investigation.

With DNA testing, police collect biological evidence at a crime scene that is then submitted to a lab for analysis and put into a DNA database. If a profile match is generated, that means the person cannot be ruled out as a suspect. Police then must obtain a DNA sample directly from the person for comparison, often through a court order.

Since 1990, the federal government and the U.S. military have collected DNA from individuals convicted of felonies and stored the genetic profiles in databases. A 1994 law created a national database where law enforcement agencies can compare and share information on DNA matches from convicted felons.

The largest database, the Combined DNA Index System, better known as CODIS, has more than 11 million DNA profiles in its database, including 300,000 from Pennsylvania alone, according to the Pennsylvania State Police.


Police use of DNA in property crimes varies locally.

Bristol police haven’t used it yet and Bensalem is the only local department in Pennsylvania that maintains its own DNA database.

Falls police officers routinely swab crime scenes for touch DNA as part of crime scene processing, said Detective Sgt. Nelson Whitney III. The department generally holds the samples in evidence until a suspect is developed and then the samples are sent to a lab for analysis.

“We have obtained usable DNA and matched it to suspects from many types of surfaces, including a rock thrown through a window to make entry, in one case,” Whitney said, adding that the burglary case resulted in an arrest and conviction.

Lower Southampton police started using DNA testing for burglaries and thefts about four years ago, Lt. Ted Krimmel said. The department sends DNA samples to the state police lab about 15 times a year, he said.

“Sometimes, we don’t get an ID, but the sample is put in an unsolved database in case the offender’s DNA winds up in the system later,” he said. “Every once in a while, we get lucky.”

Like a few years ago, when police nabbed a suspected burglar who left behind a sweaty headband and cigarette butts, Krimmel said. The suspect’s DNA profile matched DNA evidence in other pharmacy burglaries and he was charged with them as well, he added.

Middletown police Detective Patrick Nicastro said his department sends DNA evidence to state forensic labs on a monthly basis, but it’s not uncommon to wait a year or longer before results return.

More than a year passed before Middletown got back DNA results taken at two unsolved burglaries in 2010. Both cases ended with the suspects pleading guilty.

Nicastro said he believes the state’s backlog is partly related to departments sending multiple DNA swabs when they don’t have an identified suspect. Bad guys aren’t the only ones who touch items, so police will collect DNA from anyone who may have had contact with an item, such as a door handle, to rule out suspects, he said.

For a decade, the Pennsylvania State Police Forensic DNA division in Greensburg has processed biological evidence, including touch DNA, involving property crimes, Director Beth Ann Marne said.

About half of the more than 2,000 requests the lab receives annually involve property-related crimes, she added. The growing demand has forced the state lab to limit the number of drug-related cases and the types of evidence, such as drug paraphernalia, that it accepts, Marne said.

“We were surprised by the response we got early on,” she said. “We saw the value in it early on. But it’s still amazing to me that we continue to see the substantial increases every year (for property crimes requests).”

Before it recently added staff, the state lab experienced backlogs involving property crime DNA results of as long as a year because violent crimes always take priority, Marne said.

Over the last two years, the state has devoted “significant” resources to increasing lab staff, Marne said, adding that wait times have dropped. The state lab now has almost 50 people working in the forensics DNA division, double the number from a few years ago.


The long wait for results through state labs is why Bensalem turned to a private lab in 2010, shaving its wait time to 30 days or less. In November, the department took the technology to the next step, piloting a first-of-its-kind, rapid DNA initiative that generates results in 90 minutes.

Bensalem’s private database has only about 6,500 DNA profiles, compared to the millions in CODIS, which the department still uses for violent crime investigations. But the smaller database has played a role in 150 criminal investigations, mostly involving otherwise unsolvable drug and property crimes, said Fred Harran, director of public safety.

Among them was a 2011 cold case involving three stolen cars that was cracked last year after police obtained DNA samples from suspects caught breaking into cars. One of the suspect’s DNA profiles matched DNA evidence recovered from the stolen cars, Harran said.

Harran has declined to discuss the exact cost of the private lab testing program — which processes about 150 samples a month — but did say it’s less than $200,000 a year and it’s paid through federal drug-forfeiture money the department receives for being part of a regional task force.

“To me, it’s a priority,” Harran added. “It’s a great tool and I hope more departments come on board.”

In recent years, other local police departments have paid Bensalem to process DNA samples when they’ve developed a suspect in a property-related crime. The cost is generally $100 to $200 a sample, and the DNA profile remains in the local database.

Middletown police paid Bensalem to process DNA evidence it obtained from a person of interest in an unsolved burglary in April 2012, where $1,500 in jewelry was stolen, Nicastro said. When dried blood was found on a stairwell handrail, walls and an empty piggy bank, police suspected the burglar had cut himself on the window he broke to enter the home.

Two months later, Middletown police interviewed 26-year-old Morrisville resident Peter Chomiak, a suspect in two other burglaries. Police believed he also committed the April burglary, but Chomiak claimed that he couldn’t remember.

Chomiak agreed to provide a DNA sample to compare with the blood collected at the home. In August, police got the results: Chomiak’s DNA matched. He was charged with the burglary, pleaded guilty and was sentenced to 24 to 48 months in prison.

That a suspect would agree to give a DNA sample doesn’t surprise Bensalem’s Harran. He estimated as many as 90 percent of suspects will volunteer samples. 

Earlier this year, Bensalem discontinued its use of elimination DNA testing, where samples are obtained from home or property owners to narrow the suspect field. That testing increased the number of samples tested and related costs, Harran said.


Privacy experts believe DNA testing isn’t as foolproof as law enforcement agencies would like to believe.

Penn State University Law School professor David Kaye, an authority on DNA evidence, believes privacy issues with the technology focus mainly on the reliability of touch DNA.

There can be difficulty interpreting touch DNA samples if analysts use an unusually small sample or a degraded one, Kaye said. Critics argue that such samples are vulnerable to contamination and cannot be scientifically validated for accuracy.

Meanwhile, a 2008 National Institute of Justice DNA study found that blood evidence was more effective in solving property crimes than other biological evidence, particularly evidence from items a suspect handled or touched.

Another major criticism of the routine use of DNA testing is that it has moved beyond its original intention of connecting people convicted of violent crimes with unsolved violent crimes.

These days, ever-expanding DNA databases have created a pool of “permanent suspects,” said Michael Risher, staff attorney for the American Civil Liberties Union of Northern California, and a national expert on DNA forensics and genetic privacy issues.

“Some people have called it a lifetime of genetic surveillance,” he said. “We don’t believe that innocent Americans should have their genetic blueprint in a giant database.”

Another concern for Risher about using DNA testing as the first approach to crime solving is that if it’s unsuccessful, there’s a greater likelihood a case will be shelved. He also worries about the creation of a two-tier justice system, where minor crimes in wealthier communities are solved but violent crimes in less wealthy areas aren’t.

Despite those concerns, defense lawyers say DNA evidence is compelling and difficult to refute.

Doylestown attorney Charles Jonas recently had a case where police obtained a search warrant for his client’s DNA based on the results of evidence obtained from a ski mask connected with a crime.

“Sometimes, they’ll say the odds are one in a trillion,” Jonas said, adding that DNA hasn’t been a make-or-break element with his cases. “In some ways, people have held it to be more reliable, but you can’t just look at the report and say it’s a given.”

Defense attorney Niels Eriksen once represented a suspect whose DNA was connected to 20 burglaries. He called DNA testing an example of good police work, but also questioned its appropriate use.

No matter how sensitive the testing becomes, defense lawyers will always have questions about how the results were generated, Eriksen said. Those questions include how the sample was processed, who had access to the DNA database and how the database is maintained.

“The trick or challenge is, how do you collect DNA, and when is it appropriate to collect?” he asked.

Referring to George’s Orwell’s novel about a totalitarian state with constant government surveillance, Eriksen added:  “Do we want to have a ‘1984’ situation?”

Jo Ciavaglia, Bucks County Courier Times

Artist creates 3D masks using strangers’ DNA

We leave our DNA everywhere — on the side of a wine glass or on a strand of hair left in a public restroom. An artist is proving that what you leave behind could be a lot more than you think.

You may want to think twice before you spit out your gum or drop a cigarette butt in public. New York Artist Healther Dewey-Hagborg might pick it up — extract the DNA and turn it into a 3D face that could look like you!

“A lot of my work begins with a question. In this particular place the question was ‘what can I learn about someone from a single hair?’” Dewey-Hagborg said.

Once she finds a sample, she takes it to the lab to mine it for DNA, and then analyzes the results.

“From a cigarette butt — where someone’s ancestors likely came from, their gender, eye color, hair color, complexion,” Dewey-Hagborg said.

That information is then fed into a computer program that generates a 3D model of a face.

“The way that I’m using code here is a lot like how a sketch artist would use a pencil,” Dewey-Hagborg said.

It takes about eight hours to print in 3D at NYU’s Advanced Media Studio.

Then, the excess powder is removed to reveal the disembodied face from a stranger’s DNA — but there are limitations — the length of a person’s nose or the shape of his or her face cannot be determined.

“The faces have a general likeness. It might look like a family resemblance. Right now I can’t determine age so all of my masks are aged between 20 and 40,” Dewey-Hagborg said.

Dewey-Hagborg started the project called “Stranger Visions” after creating her self portrait two years ago. Now, she’s hoping it’ll raise questiosn about genetic privacy.

“It’s meant to be an exploration at the intersection of art and technology and science, and it’s meant to be a provocation,” Dewey-Hagborg said.


Recent Class Action Lawsuits Shine The Spotlight On The Camouflaged Privacy Law: GINA

As named by Congress, the “Genetic Information Non-Discrimination Act of 2008” (GINA) appears to be just one more employment law adding to the ever-expanding list of characteristics that cannot lawfully form the basis for an employment decision.  However, the law’s name camouflages its true nature.  GINA, in reality, is a privacy statue that strictly regulates employers’ collection, use, safeguarding, and disclosure of “genetic information.”  Moreover, two recently filed class action lawsuits demonstrate that many employers may be unwittingly violating GINA even if they conduct no genetic tests.

Critical to understanding GINA’s broad sweep beyond genetic tests is the statute’s definition of the term “genetic information.”  That term includes not just genetic test results but also “the manifestation of a disease or disorder in a family member.”  Notably, this definition is not limited to “genetic” diseases or disorders; any disease or disorder satisfies the definition of “genetic information.”  Further expanding this definition’s scope, GINA defines “family member” to include (a) a dependent, whether born to the individual or adopted; (b) a relative to the fourth degree of the individual, and (c) a relative to the fourth degree of the individual’s dependents.

The practical upshot of this expansive definition is that, on a daily basis, millions of Americans post their genetic information in social media and share their genetic information with their health care providers.  The Tweet, “Exhausted; spent last night in ER with Joey after asthma attack” reveals a dependent’s disorder (asthma) and, therefore, constitutes “genetic information.”  A comment on a Civil War blog, “My great-great-grandfather died from gangrene after a bullet wound at Gettysburg” also reveals “genetic information.”  As a third example, posting a joyful comment on Facebook after a cousin’s cancer goes into remission also discloses “genetic information.”  These posts share a common thread: they each reveal the poster’s family medical history (as defined by the Act).  And, family medical history is critical to medical diagnosis and treatment.  Consequently, most first visits to a doctor are preceded by fifteen excruciating minutes reading an encyclopedic list of diseases and disorders associated with each body part and checking whether any of them has afflicted the patient or the patient’s grandparents, parents, siblings or children. 

It is this proliferation of genetic information, and requests for it, that make compliance with GINA’s most basic privacy protection potentially difficult for employers.  Under GINA, it is unlawful for an employer to “request, require or purchase genetic information” of an employee or the employee’s family members.  In its first lawsuit enforcing GINA, filed in early May 2013, the EEOC relied on this prohibition when alleging that the defendant in that case, one of the world’s largest distributors of decorative fabrics, violated GINA.  According to the complaint, as part of a pre-employment physical, the fabric distributor’s contract medical examiner required an applicant to complete a questionnaire asking whether she or her family members had suffered from any of a long list of disorders, i.e., family medical history.  On the day that the agency filed the complaint, the EEOC also issued a press release announcing that it had settled the case for $50,000. 

One week later, the EEOC filed its first class action complaint, alleging GINA violations.  In that case, which is pending, the EEOC alleges that a New York nursing home violated GINA because it “requests family medical history as part of a pre-employment, return-to-work, and annual medical exams of its staff.”  Following the EEOC’s lead, private plaintiffs filed a class action lawsuit against an Illinois laboratory in June 2013, alleging that the lab violated GINA by requiring employees to complete “a medical questionnaire that included questions concerning family medical history.”  Notably, none of these lawsuits alleged that the employer used genetic information in violation of GINA’s anti-discrimination provisions.  It was the mere alleged collection of family medical history, i.e., the privacy violation, that triggered the lawsuit.

These lawsuits are just one indicator that the enforcement environment is changing.  In its Strategic Enforcement Plan for fiscal years 2012 to 2016, the EEOC identifies GINA as one of six areas where it will focus its enforcement efforts.  In addition, the number of charges filed with the EEOC alleging violations of GINA, while still small, increased by nearly 50% between fiscal years 2010 and 2012.

While the recent lawsuits focus on the employer’s alleged direct request for family medical history, employers also can indirectly request family medical history in violation of GINA.  Employers commonly ask employees to execute a HIPAA-compliant authorization to allow a health care provider to disclose their medical information, albeit not genetic information, to the employer.  For example, an employer may request medical information to determine whether an employee is fit for duty, requires a requested accommodation, or poses a direct threat in the workplace.  As noted above, many health care providers obtain family medical history for diagnosis and treatment.  Consequently, an employer that asks an employee to sign an authorization permitting disclosure of the employee’s “medical file” or of all protected health information (PHI) for a given time period could inadvertently obtain the employee’s genetic information in the form of family medical history.

While GINA expressly excepts from its purview the situation where an “employer inadvertently requests or requires genetic information,” the EEOC’s regulations implementing GINA narrowly construe the exception as applied to requests for employees’ medical information.  Under the applicable regulation, an employer that receives family medical history from an employee’s health care provider will generally be presumed to have asked for it in violation of GINA.  An employer can avoid this presumption by tailoring the description in the HIPAA-compliant authorization of the PHI to be disclosed so that the authorization is “not likely to result in [the employer’s] obtaining genetic information.”

Alternatively, the employer can specifically direct the provider not to provide family medical history or other genetic information in response to the request.  The EEOC’s regulations provide the following “safe harbor” language to avoid liability for unlawfully requesting genetic information from an employee’s health care provider:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

In other words, an employer can help minimize the risk of liability for requesting family medical history in violation of GINA by including the safe harbor language quoted above in the HIPAA-compliant authorization tendered to an employee when the employee’s medical information, but not the employee’s family medical history or other genetic information, is needed for an employment decision.

With employers increasingly turning to social media for recruiting and to investigate allegations of employee misconduct, the risk of collecting genetic information in the form of family medical history also has increased.  Under the EEOC’s implementing regulations, an employer does not violate GINA if “it acquires genetic information from documents that are commercially and publicly available for review . . ., including . . . information communicated through . . . the Internet.”  In other words, an employer who happens on a publicly available social media post similar to the posts described above would not violate GINA.  However, the implementing regulations also provide that this exception does not apply to “genetic information acquired through sources with limited access, such as social networking sites . . . which require permission to access through a specific individual.”  Under a literal reading of this exception, an employer who obtains access to posts disclosing family medical history on a Facebook page where the user has set his or her privacy settings to “friends only” apparently would violate GINA even if the user had friended the manager or co-worker who brings the family medical history to the employer’s attention.  Whether that is how the law will eventually be interpreted by the courts is uncertain.

While a comprehensive discussion of GINA is beyond the scope of this article, the recent EEOC enforcement actions and private class action filings as well as the increasing prevalence of personal social media in the workplace highlight the need for organizations to address, or revisit, their compliance with GINA.  These efforts should include, at a minimum, the following:

  • Eliminate direct requests for family medical history (except in the narrow circumstances not discussed here where such requests are permitted);
  • Include the “safe harbor” language in any HIPAA authorization provided to a medical provider for release of an employee’s medical information;
  • Train recruiters and other employees who may access applicants’ or employees’ social media content not to record genetic information or rely on it for any employment decision.

While these steps should help mitigate the most significant risks arising from GINA, employers should conduct a comprehensive review of their compliance with this statute as the enforcement environment becomes less forgiving.

Philip L. Gordon , IAPP‘s Privacy Tracker blog

Local Police Collect DNA Samples From Crime Victims

Victims of a crime tell CBS 12 they feel like the Riviera Beach Police Department treated them like the actual criminals.
Three days before Christmas, a single mom with five children says her family’s life has been turned upside down.
Why? It’s a family’s worst nightmare – they come home, and find out someone broke in, and not just once.
But even worse then feeling like your house was violated, imagine feeling like your own personal, privacy rights were trashed by police.
“It really hurts me,” said Gladys Cameron, “my children, it’s terrifying, I’m terrified. I can’t sleep at night.”
Cameron is quite apologetic about her house being a mess. But she actually has to pack up and leave because criminals forced the family to relocate.
“I’m scared, for my children’s safety as well as mine,” said Cameron. “And I’m ready to just go, it’s too much.”
Thieves broke in and burglarized the Cameron home three times within the past 30 days.
“They trashed everything,” said Cameron, as she walked around the house. “It’s just horrible.”
The bad guys stole Christmas presents, her son David’s video game console, plus the family’s TV sets and electronics.
Each time, the criminals came through David’s room, broke the window and went out the kitchen door.
Riviera Beach Police dusted for fingerprints inside the house. Outside, the family also showed investigators footprints and tire marks, where the stolen items were loaded into a vehicle.
The cops even have surveillance video from a neighbor which shows three crooks carrying off the family’s belongings.
But its what happened next, that has Gladys and her oldest really feeling like their privacy rights were violated.
“I’m like, what!? DNA really? Swab my mouth, my son’s mouth,” recalls Cameron telling police. “And they were like ‘yeah, rule you out as a criminal here’.”
Riviera Beach police told mom and son that they had to collect DNA samples from each of them.
“I felt like they weren’t listening to us,” said David, “They were just doing what they wanted to.”
Gladys says police didn’t explain why this was necessary, or why only she and David had to consent to such an intrusion, but not the four daughters.
“They were like, ‘you have to take swabs from your mouth, because you’re not in the records, or in the system or something,’” David recalls being told by police. “I’m like, ‘I don’t understand it.’ But they did it anyway.”
Needless to say, on this holiday, Gladys feels like her family has been violated twice – once by criminals, and then by police.
“I can’t sleep at night, it’s horrible,” said Gladys. “It’s really horrible. Nothing is being done.”
Because of the seriousness of this case, CBS 12 reached out to the Riviera Beach Police Department and the Palm Beach Sheriff’s Office.
Through phone calls and emails, we requested an on camera interview with the following questions:
Why are DNA samples taken from crime victims?
How does the county’s crime lab handle it as evidence, and are privacy rights protected?
When will the DNA sample be removed from evidence or kept records?
The Palm Beach Sheriff’s Office told CBS 12 that its DNA expert is on vacation. No one from Riviera Beach police replied to these requests.
CBS 12 also reached out to the ACLU of Florida for their legal opinion on this.
Here’s the email that was sent:
“DNA is not simply a means of identification like a fingerprint—our DNA contains biological and medical information that reveals susceptibility to diseases, family history and ancestry and therefore, taking a person’s DNA, especially without their informed consent, violates the fundamental and constitutionally protected right to privacy.
Given the sensitivity of the information contained in our DNA, we are deeply troubled by the fact that Rivera Beach Police are collecting DNA from people who are the victims of crime, and by the prospect that this police policy will create a permanent criminal database of innocent people, whose very personal information will be stored in a “criminal database” by the Florida Department of Law Enforcement.”


J. Israel Balderas, CBS


Do You Really Want To Know What Your Genetic Code Says About You?

It took 12 years and $3bn to sequence the human genome and figure out the code in our DNA. These days, people can post off a blood sample and get information on their genetic inheritance for as little as a couple of thousand dollars. This drastic reduction in cost, time and effort is fuelling new hopes for what humanity could do with enough data on DNA – data that is now being sought in projects from the recently announced Saudi Human Genome Programme (SHGP) to the UK’s 100K Genome Project. But asking people for their DNA and giving them the limited information that can be derived from their genomes is an ethical minefield, throwing up privacy issues and the right not to know, as well as the potential societal impact of freely available genetic data.

Saudi Arabia’s genome project, run by the King Abdulaziz City for Science and Technology Partners with the help of Life Technologies, was announced last week. It aims to analyse 100,000 genomes to identify the causes of disease in the Saudi population and the Arab world. The ambition is to have a Saudi-specific database that will help to provide personalised healthcare in the Kingdom and identify genetic diseases affecting Arab people. Brian Meyer, chairman of the department of genetics research centre at the King Faisal Specialist Hospital and Research Centre, who is working with the project, told Forbes that rare familial disorders were relatively frequent in Saudi Arabia.

“This project will identify causative variants for these disorders which will form the basis of diagnostic tests, carrier screening and disease prevention,” he said.

“The SHGP will also identify variants associated with common disorders including diabetes, cardiovascular and neurological diseases. The cataloging and validation of these variants will position Saudi Arabia and the Arab world to enable the adoption and practice of personalised medicine.”

With rare genetic disorders at issue, the benefits to gene sequencing are clear. Knowing about predispositions to genetic disorders that are treatable or preventable could help to save lives. But genome testing doesn’t always produce a clear result. Would knowing that you could one day get cancer have adverse psychological effects, particularly if there was nothing you could do about it? Even if there is something that can be done, how strong does the probability have to be for someone to take drastic action?

The problems were amply illustrated by the debate around actress and celebrity Angelina Jolie’s choice to have a double mastectomy after discovering she had a high risk of breast cancer. Despite the fact that her chances of contracting the disease were quite high at 85 per cent, her decision was criticised as well as lauded.

The value of knowing what your genes might tell you is a subjective one, according to Dr. Peter Mills, assistant director of the Nuffield Council on Bioethics in Britain.

“It depends very much on those involved and on their assessment of the implications for them and their family,” he said. “Even if there are no interventions available, people may want to know in order to plan their lives in the light of the information.

“But individuals will respond differently. For example, told that they have an increased risk of genetic disease, some may respond fatalistically, while others may make major lifestyle changes to try to mitigate the risk. There’s certainly a risk of fixating on genetic factors and overstating their significance, particularly in a context where interpretations are evolving as knowledge advances,” he warned.

Being part of government-sanctioned and well-funded projects like the SHGP and Britain’s 100K programme means that subjects will have access to doctors to help them assess their results, which will have been found using well-supported methodologies. The same may not be true of the consumer tests that are out there, allowing people to send off a blood sample for a quick result.

“For most people, genetic sequence data will be hard to make sense of without the help of an expert. We previously considered this issue in relation to direct-to-consumer genetic tests and one of the things we recommended was that doctors should receive specific training on advising patients about direct-to-consumer genetic profiling and about making referral decisions on the basis of these tests,” Mills said. “We also concluded that the companies that provide these tests should provide clearer information about the limitations of the results to potential customers.”

George Church, professor of genetics at Harvard Medical School and director of America’s open-access Personal Genome Project, pointed out that people needed to know what they were getting when they applied for DNA testing. Whole genome sequencing determines the complete DNA sequence of a sample, but other lab processes examine smaller parts of the genes. Some tests analyse single-nucleotide polymorphism (SNP), looking at DNA sequence variations, while exome sequencing examines the part of the genome formed by a type of nucleotide sequence known as an exon.

In each case, the tests are looking for markers in the sequence, which could take the form of abnormalities like translocations and inversions. A translocation is a chromosome abnormality caused by the rearrangement of parts between chromosomes. This kind of abnormality is common in cancer, where the translocation joins two otherwise separated genes. An inversion is another kind of rearrangement in which a segment of chromosome is reversed end to end. Inversions are frequently harmless, but the most common one seen in humans, on chromosome 9, is suspected of being linked to increased risk of miscarriage or infertility for some people.

“Whole genome sequencing is much more accurate than SNPS or exomes for detecting translocations and inversions, which can be very impactful,” Church said.

Even if people avoid finding out for themselves what their genes might have in store, any family member who decides to get their DNA looked at could inadvertently reveal markers that could affect the whole family.

“In some cases the information (or a strong indication) might come about as a result of someone else’s test. So access to or refusal of genetic information also implicates others. We require a carefully nuanced understanding of privacy to understand how to respond to this,” Mills said.

Privacy has been a large part of the discussion around the UK’s 100K Genome Project. Britain’s programme is also looking for 100,000 genetic sequences, but it hopes to share the information with researchers on an open access basis. Although volunteers’ names and addresses won’t appear on the record, the project is aware that they’ll be identifiable and is warning participants that their privacy can’t be guaranteed. The project is similar to those already going on in the US, Canada and Korea.

There are a number of fears about the idea that genetic information could become freely available, from the obvious concerns about effects on insurance premiums and employment all the way to more science-fiction-inspired worries that society could become divided along genetic lines. ‘Designer babies’ – made to order from a genetic menu – and a society dominated by a genetic elite are some of the more exotic fears about DNA research.

Mills pointed out that there are some cases when there might be good reasons for an employer to know about genetic markers, for example, being aware that a fighter pilot is at risk of blacking out at high altitude. But any discrimination based on DNA data is already being legislated for. The Genetic Information Non-discrimination Act (GINA) of 2008 covers both health insurance and employment in the US, while in Britain, insurers don’t discriminate by agreement under the Concordat and Moratorium on Genetics and Insurance.

Even with regulation in place, fears remain. After all, discrimination based on race and gender is also illegal, but no-one would argue that that’s managed to put a complete stop to it. While it’s relatively simple to tackle overt discrimination, it’s a lot harder to change how people think.

Harvard’s Professor Church said that scientists and the media would need to work together to educate the public about genetics, just as they had done on other controversial topics like GPS and mobile phones. The Saudi project’s Meyer also laid the responsibility on scientists to educate the public, but said that communities would also need to “build standards to benefit from genetic data without prejudice”.

Mills also explained that it might be harder to discriminate based on genetics than people think. Although the Saudi project is hoping to help identify markers that exist in Arab people, DNA research is unlikely to reinforce existing racial discrimination.

“To think of genes in terms of ‘race’ is what philosophers call a ‘category mistake’: the concept of ‘race’ is not inherent in the genome.

“There is a danger of overstating the role of genes, and it’s important to recognise that every one of us has a mixture of common and mutated variants. There is no ‘normal’ at the genome level but this does not sit comfortably with hype surrounding genetic testing,” he said.

“Scientists need to help spread a measured and proportionate understanding of the role that genes play in relation to other physical and environmental conditions.”

While organisations like the Nuffield Council on Bioethics run consultations on the ethical issues raised by uses of genetic and biomedical data, the science gallops ahead, as it must do if humanity is to realise the promise of genome sequencing. People’s high hopes of the original 12-year Human Genome Project have not yet been fulfilled, because being able to read the code is not enough. Much more data from as many subjects as possible is necessary to start reaping the greater benefits – targeted healthcare that could prevent some diseases and eradicate others and personalised, precise medication that could save and extend lives.

“What is certain,” said Mills, “is that we will never discover the benefits if we don’t do the research.”

Brid-Aine Parnell, Forbes

Going too far on DNA searches

The Supreme Court erred grievously this year when it permitted Maryland police to collect DNA samples from people who had been arrested and charged with serious crimes — samples that could then be used to match that person’s genetic profile with evidence from unrelated unsolved crimes. As Justice Antonin Scalia pointed out in a scathing dissent, the 5-4 decision upholding Maryland’s law undermined the 4th Amendment’s ban on “searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime.”

When the decision came down, it was widely assumed that it also disposed of constitutional objections to a similar program in California. Last week, a lawyer for the American Civil Liberties Union told the U.S. 9th Circuit Court of Appeals that wasn’t necessarily so. Indeed, the appeals court could rule in good conscience — and without defying the Supreme Court — that California goes too far.

Under Proposition 69, approved by California voters in 2004, DNA evidence is collected from anyone arrested on suspicion of a felony. Someone who is arrested but ultimately not charged — or who is acquitted at a trial — can petition to have his DNA profile expunged from databases, but by then the information could have been compared to evidence from other crimes. This page opposed Proposition 69, arguing that the state shouldn’t be able to engage in fishing expeditions using the DNA of people who haven’t been convicted of a crime.

Lawyers for those who are challenging Proposition 69 called the 9th Circuit’s attention to several differences between Maryland’s law and California’s. For example, in Maryland, police may not analyze or match a DNA sample until a judge determines that there is probable cause to believe that the suspect has committed a serious felony; California has no such requirement in its law. That’s one reason, the lawyers say, that the California law may be unconstitutional even though the Maryland law has been upheld.

Lawyers for the state counter that the differences between California and Maryland systems are not constitutionally significant and that the Supreme Court made it clear that collection of DNA was simply part of the booking process, like fingerprinting. It’s true that Justice Anthony M. Kennedy’s majority opinion treated DNA collection as a form of identification rather than an investigative tool. But a decision by the 9th Circuit striking down Proposition 69 might force him to confront the reality that the intrusive “search” in DNA collection isn’t the acquisition of the sample but the gathering (and storage) of the personal data of people who have not been convicted of wrongdoing in order to link them to unrelated crimes.

Supreme Court decisions are the law of the land, and inferior courts can’t contradict their holdings. But if the 9th Circuit agrees that California’s DNA collection system poses special dangers to the privacy rights of people who have been arrested, it should say so and give the Supreme Court an opportunity to revisit the larger issue.

LA Times editorial

23andMe Is Terrifying, but Not for the Reasons the FDA Thinks The genetic-testing company’s real goal is to hoard your personal data

If there’s a gene for hubris, the 23andMe crew has certainly got it. Last Friday the U.S. Food and Drug Administration (FDA) ordered the genetic-testing company immediately to stop selling its flagship product, its $99 “Personal Genome Service” kit. In response, the company cooed that its “relationship with the FDA is extremely important to us” and continued hawking its wares as if nothing had happened. Although the agency is right to sound a warning about 23andMe, it’s doing so for the wrong reasons.

Since late 2007, 23andMe has been known for offering cut-rate genetic testing. Spit in a vial, send it in, and the company will look at thousands of regions in your DNA that are known to vary from human to human—and which are responsible for some of our traits. For example a site in your genome named rs4481887 can come in three varieties. If you happen to have what is known as the GG variant, there is a good probability that you are unable to smell asparagus in your urine; those blessed with the GA or AG varieties are much more likely to be repulsed by their own pee after having a few spears at Spargelfest.

At first, 23andMe seemed to angle its kit as a fun way to learn a little genetics using yourself as a test subject. (“Our goal is to connect you to the 23 paired volumes of your own genetic blueprint… bringing you personal insight into ancestry, genealogy, and inherited traits,” read the company’s website.) The FDA had little problem with the company telling you why you had dry ear wax (rs17822931) or whether you’re likely to sneeze when you look at a bright light (rs10427255).

That phase didn’t last for long, because there is much more interesting stuff in your genome than novelty items. Certain regions signal an increased risk of breast cancer, the impending onset of metabolic diseases, and sensitivity to medications. 23andMe—as well as a number of other companies—edged closer and closer to marketing their services as a way of predicting and even preventing health problems. And any kit intended to cure, mitigate, treat, prevent, or diagnose a disease is, according to federal law, a “medical device” that needs to be deemed safe and effective by the FDA. Since mid-2009, 23andMe has been negotiating with the agency, and in July 2012, the company finally began the process of getting clearance from the FDA to sell the kit that it had already been selling for five years.

Everything seemed rosy until, in what a veteran Forbes reporter calls “the single dumbest regulatory strategy [he had] seen in 13 years of covering the Food and Drug Administration,” 23andMe changed its strategy. It apparently blew through its FDA deadlines, effectively annulling the clearance process, and abruptly cut off contact with the agency in May. Adding insult to injury the company started an aggressive advertising campaign (“Know more about your health!”), leaving little doubt about the underlying medical purpose of 23andMe’s Personal Genome Service. This left the agency with little alternative but to take action. “As part of our interactions with you, including more than 14 face-to-face and teleconference meetings, hundreds of email exchanges, and dozens of written communications,” the agency complained, “we provided you with… statistical advice, and discussed potential risk mitigation strategies.” It is the tone of a spurned spouse, exasperated and angry that 23andMe is putting no effort into salvaging their relationship.

But as the FDA frets about the accuracy of 23andMe’s tests, it is missing their true function, and consequently the agency has no clue about the real dangers they pose. The Personal Genome Service isn’t primarily intended to be a medical device. It is a mechanism meant to be a front end for a massive information-gathering operation against an unwitting public.

Sound paranoid? Consider the case of Google. (One of the founders of 23andMe, Anne Wojcicki, is presently married to Sergei Brin, the founder of Google.) When it first launched, Google billed itself as a faithful servant of the consumer, a company devoted only to building the best tool to help us satisfy our cravings for information on the web. And Google’s search engine did just that. But as we now know, the fundamental purpose of the company wasn’t to help us search, but to hoard information. Every search query entered into its computers is stored indefinitely. Joined with information gleaned from cookies that Google plants in our browsers, along with personally identifiable data that dribbles from our computer hardware and from our networks, and with the amazing volumes of information that we always seem willing to share with perfect strangers—even corporate ones—that data store has become Google’s real asset. By parceling out that information to help advertisers target you, with or without your consent, Google makes more than $10 billion every quarter.

What the search engine is to Google, the Personal Genome Service is to 23andMe. The company is not exactly hiding its ambitions. “The long game here is not to make money selling kits, although the kits are essential to get the base level data,” Patrick Chung, a 23andMe board member, told FastCompany last month. “Once you have the data, [the company] does actually become the Google of personalized health care.” The company has lowered the price of the kit again and again, most recently from $299 to a mere $99, practically making it a stocking-stuffer. All the better to induce volunteers to give 23andMe the data it so desperately wants. (Currently, the database contains the genetic information of some half a million people, a number Wojcicki reportedly wants to double by year end.)

What does 23andMe want to do with all that data? Right now the talk is all about medical research—and, in fact, the company is doing some interesting work. It has been sifting through its genomic database, which is combined with information that volunteers submit about themselves, to find possible genetic links to people’s traits. (The bright-light/sneeze genetic tag is a 23andMe discovery.) More promising are 23andMe’s attempts to recruit people who suffer from certain diseases, such as Parkinson’s and a few types of cancer. Simply through brute-force pattern matching, the company has a chance of finding genetic causes of these ailments, which could lead to a way to combat them. (And perhaps a blockbuster patent or three.)

That’s just the beginning, though. 23andMe reserves the right to use your personal information—including your genome—to inform you about events and to try to sell you products and services. There is a much more lucrative market waiting in the wings, too. One could easily imagine how insurance companies and pharmaceutical firms might be interested in getting their hands on your genetic information, the better to sell you products (or deny them to you). According to 23andMe’s privacy policy, that wouldn’t be an acceptable use of the database. Although 23andMe admits that it will share aggregate information about users genomes to third parties, it adamantly insists that it will not sell your personal genetic information without your explicit consent.

We’ve heard that one before. Back when Google was first launched, the founders insisted that the company would never sell you out to advertisers. The company admitted that it would share aggregate information about users’ behavior with anyone who ponied up enough money, but the company’s privacy policy promised that “[i]ndividually identifiable information about you is not willfully disclosed to any third party without first receiving your permission.” A decade and a half later, after countless minuscule frog-in-boiling-water changes, Google’s privacy policy is craftily worded, diluting the word “consent” so that it’s implicit in most cases. (There are a few exceptions; the company has graciously agreed not to reveal that you are a homosexual or that you have heart disease unless you explicitly opt in. But in matters not related to your medical conditions, race, ethnicity, sexuality, or your political or religious beliefs, there is no such guarantee.) Not that your consent really matters, implicit or explicit. Google has repeatedly proven that it is more than willing to break its promises and ignore its own privacy rules when it suits.

Why should we believe that 23andMe’s promises are any more binding? Early signs certainly aren’t encouraging. Even though 23andMe currently asks permission to use your genetic information for scientific research, the company has explicitly stated that its database-sifting scientific work “does not constitute research on human subjects,” meaning that it is not subject to the rules and regulations that are supposed to protect experimental subjects’ privacy and welfare.

Those of us who have not volunteered to be a part of the grand experiment have even less protection. Even if 23andMe keeps your genome confidential against hackers, corporate takeovers, and the temptations of filthy lucre forever and ever, there is plenty of evidence that there is no such thing as an “anonymous” genome anymore. It is possible to use the internet to identify the owner of a snippet of genetic information and it is getting easier day by day.

This becomes a particularly acute problem once you realize that every one of your relatives who spits in a 23andMe vial is giving the company a not-inconsiderable bit of your own genetic information to the company along with their own. If you have several close relatives who are already in 23andMe’s database, the company already essentially has all that it needs to know about you. It is doubtful that 23andMe would be able to protect that information even if it were so inclined.

While the FDA concentrates on the question of whether 23andMe’s kit is a safe and effective medical device, it is failing to address the real issue: what 23andMe should be allowed to do with the data it collects. For 23andMe’s Personal Genome Service is much more than a medical device; it is a one-way portal into a world where corporations have access to the innermost contents of your cells and where insurers and pharmaceutical firms and marketers might know more about your body than you know yourself. And as 23andMe warns on its website, “Genetic Information that you share with others could be used against your interests. You should be careful about sharing your Genetic Information with others.”

Present company excepted, of course.

Charles Seife, Scientific American

New questions raised about mandatory DNA swabbing by police in California

Lily Haskell was arrested while attending a peace rally in San Francisco in March 2009.

Police took her fingerprints and swabbed the inside of her cheek to collect a sample of Haskell’s DNA, which was entered into a state database and shared with a federal database run by the Federal Bureau of Investigation.

She was never charged with a crime and was soon free to go. But her most private, biological data will remain with the state indefinitely. All 50 states and the federal government take samples of DNA from anyone convicted of a felony.

But in recent years, many states have passed laws allowing police to take DNA samples at arrest — before a suspect is charged with a crime, much less found guilty — and enter them into state-level databases along with the national DNA database run by the FBI.
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Though the state-level laws vary in terms of how long the DNA evidence can be kept — some, like California, allow it to be kept permanently, while other states require the information to be deleted if a suspect is not charged or found innocent — they all raise concerns about privacy and due process, since an individual’s DNA can be taken without consent or judicial approval.

“Now my genetic information is stored indefinitely in a government database, simply because I was exercising my right to speak out,” Haskell, now a plaintiff in a legal challenge to the California law, said in a statement.

Since DNA is a unique identifier that does not change from birth until death, the ability to take, store and use DNA samples as part of an investigation has revolutionized police work.

Law enforcement groups across the nation see DNA collection as a vital part of their obligation to catch criminals and prevent future crimes.

“Victims and taxpayers will be spared the cost of crimes that are deterred and prevented. The work of law enforcement will be more efficient and more accurate by focusing on the right suspect sooner,” Dave Freed, president of the Pennsylvania District Attorney’s Association, told the Pennsylvania House Judiciary Committee during a recent hearing.

The effectiveness of such massive DNA databases is rarely called into question, but perhaps it should be. In the three years after Maryland passed a law allowing the collection of DNA at arrest, more than 33,000 samples were taken by police.

Of those, only 13 led to a conviction. In other words, 99.96 percent of arrested Marylanders who had their most personal biological information taken from them and entered into a government computer, without their consent, were never convicted of any crime.

Similar data is unavailable from most other states where DNA swabs are taken at arrest because Maryland has one of the nation’s strictest police transparency laws, but there is little reason to think the numbers would be much different.

In California, nearly 100,000 people are arrested each year for being suspected of committing a felony. More than half will be released without being charged with a crime, like Lily Haskell. But the state gets to keep their DNA on file anyway.

“The result of this new program is that thousands of innocent Californians will be subject to a lifetime of genetic surveillance because a single police officer suspected them of a crime,” said Michael Risher, staff attorney at the American Civil Liberties Union of Northern California.

The 9th U.S. Circuit Court of Appeals will hear the challenge to California’s DNA swabbing law in December.

That challenge comes on the heels of the U.S. Supreme Court’s ruling in Maryland v. King earlier this year, in which the high court upheld a Maryland law allowing DNA collection at arrest.

“Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote for the 5-4 majority.

Justice Antonin Scalia, who authored the dissenting opinion, slammed the majority’s logic. Comparing DNA samples to the classic act of taking a suspect’s fingerprints “taxes the credulity of the credulous” and only makes sense to those who do not understand how police use a DNA database, he said.

The ACLU said it may have more success in challenging the California law, which is broader than the Maryland law and does not include a provision to erase the DNA records after a suspect is cleared of any wrongdoing.

Even if the courts continue to uphold the concept of DNA collection at arrest, there are questions about the effectiveness of such information, to say nothing of the potential for abuse by law enforcement agencies that already have millions of samples in a shared database.

A study by the RAND Corp. of DNA collection of arrestees in England found the practice was generally a waste of time and resources, since crime-scene DNA samples were more often related to positive matches than samples from suspects.

“This suggests that ‘widening the net,’ which research indicates has only a minimal deterrent effect, might be less cost-effective than allocating more effort to samples from crime scenes,” the authors of the report wrote in 2010.

In Pennsylvania, the state police estimate expanding DNA collections could cost up to $7 million annually as labs are swamped with new requests.

California’s DNA database, which is the third largest in the world, has experienced backlogs that last for months, meaning a tool supposedly making investigations move more quickly can end up slowing things down while police wait for labs to catch up.

Groups like the ACLU also raise concerns about how a massive database of Americans’ biological information, once it is established, could be used for other purposes.

They point to how the Social Security database has been expanded from its initial design to become a de facto national identification numbering system that follows a person from birth until death.

Only time will tell what sort of uses bureaucrats of the future will find for a national DNA database — Images from the film “Gattaca” and other sci-fi fare spring to mind.

In the meantime, the expansion of laws allowing DNA collection at arrest is seemingly bipartisan, a result of politicians who want to appear “tough on crime” regardless of their political persuasion.

Wisconsin and Virginia recently joined blue states like California and Maryland and solidly red states like Texas and Alabama in allowing DNA samples at arrest.

In Wisconsin, Republican Gov. Scott Walker pushed for a change to a state law that previously allowed DNA samples to be taken only from convicts.

Wisconsin Attorney General J.B. Van Hollen trotted out the example of Christopher R. Golden, of Madison, who was arrested in 2010 on sexual assault charges.

After his conviction, Golden’s DNA was taken and turned up as a match for an unsolved sexual assault from 2000.

If the state had been allowed to take Golden’s DNA in 1994, when he was arrested and charged with felony child abuse and ultimately convicted of a misdemeanor offense, police would have been able to match him to the 2000 crime and prevent him from striking again in 2010, Van Hollan argued.

Taking DNA from arrestees “increases the likelihood that law enforcement can identify perpetrators of previously unsolved crimes and apprehend them before they commit future crimes,” said Van Hollan.

It also helps law enforcement accurately identify whom they have in custody and can be used to exonerate those who are arrested or charged wrongly, he said.

Eric Boehm, Washington Examiner

Red flags raised after local drivers asked for DNA samples at police checkpoint

Drivers in St. Charles County, MO were asked to take part in a government survey that involved the odd request of blood and saliva samples.

One driver who emailed News 4 said a deputy and others dressed in safety vests directed drivers to take part and answer questions about alcohol and driving.

The study is being conducted by the National Highway Transportation Safety Administration and is supposed to be voluntary.  Constitutional Law attorney Bob Herman said the study does raise some red flags.

“At the point at which a uniformed officer asserts his authority and makes you drive your car off the road or pull over to the side, that is starting to look like government intimidation,” said Herman.  

The St. Charles County Sheriff’s Department confirms two off duty deputies were at the survey providing site security.

The NHTSA says they’ve been doing this drug and alcohol survey for 40 years and this year it’s being carried out in 60 communities around the country.

The survey was conducted in St Louis during two days in September.

 Matt Sczesny, KMOV News


California’s DNA collection law in key legal test

Armed with a recent U.S. Supreme Court ruling, a federal appeals court on Monday will revisit a controversial legal challenge to California’s law allowing collection of DNA samples from anyone arrested for a felony.

Whether the Supreme Court’s ruling on Maryland’s similar — though narrower — DNA collection law shoots down an ongoing legal attack on California’s four-year-old statute will be the question before a special 11-judge 9th U.S. Circuit Court of Appeals panel.

In a 5-4 ruling, the Supreme Court upheld the constitutionality of Maryland’s law, likening collection of DNA samples to fingerprinting suspects booked into police custody.


Civil liberties advocates argue that California’s law is a much greater threat to privacy rights because it permits DNA sample collection and preservation from arrested suspects even if they are never charged with a crime. Maryland’s law permits DNA collection only from those charged with a serious felony, and after a judge finds probable cause they’ve committed the crime.

California Attorney General Kamala Harris says the differences between the California and Maryland laws are “not constitutionally significant” and has urged the 9th Circuit to uphold the law. The Obama administration has backed California’s defense of the law in the appeal, stressing the national importance of DNA collection laws that 28 states have enacted.

Before the Supreme Court ruling, the 9th Circuit last year appeared inclined to invalidate California’s law, expressing concerns about DNA being collected from individuals who may never be charged in court with a crime. But legal experts say the Supreme Court’s ruling in the Maryland case could make it tough for the 9th Circuit to overturn the California law.

“The fact they decided to reargue it is a good sign for (groups challenging the law),” said Hank Greely, a Stanford University law professor. “But I still think it’s an uphill climb for the plaintiffs.”

The American Civil Liberties Union in 2009 sued to block enforcement of California’s DNA collection law on behalf of an Oakland woman, Elizabeth Haskell, who was arrested during a San Francisco rally against the Iraq War. Haskell was arrested and required to submit to DNA testing but never charged.

A divided three-judge 9th Circuit panel upheld the law voters had approved in 2004 to go into effect in 2009, but the court agreed to rehear the case with an 11-judge panel. That panel heard arguments last year, then put the case on hold when the Supreme Court decided to review Maryland’s law.

Law enforcement officials consider DNA collection a crucial tool in solving crimes. In a recent brief urging the 9th Circuit to uphold the law, the California District Attorneys Association noted that 20,000 hits have led to solving crimes since law enforcement began gathering DNA from arrestees in 2009.

But civil liberties advocates say the law comes with a high price and needs to be scaled back to bar DNA collection without a warrant. “Personal privacy interests outweigh California’s interests in DNA collection,” the Electronic Frontier Foundation wrote in its brief.

While the 9th Circuit case raises federal legal questions, a similar challenge is unfolding in the California state courts, where the state Supreme Court has also ordered a further look at the issue in light of the U.S. Supreme Court’s Maryland decision.

In both cases, the issue boils down to whether there is enough difference between the California and Maryland laws to skirt the U.S. Supreme Court’s findings that DNA collection can be constitutional.

“The question is are there enough distinctions to make a difference,” Greely said. “If I had to bet, I’d say the U.S. Supreme Court would say there aren’t.”

Howard Mintz, Mercury News