Tag Archives: california

Bill to Protect the Genetic Profiles of Californians Clears Assembly Floor – AB 170

A closely watched bill by Assemblyman Mike Gatto (D-Glendale) to strengthen notice requirements for the storage of newborn blood samples passed the California State Assembly by a vote of 55-9. The legislation, AB 170, will ensure parents are fully informed of their rights when it comes to the retention, storage and eventual medical research conducted on their children’s dried blood spot samples. It would further require the destruction of stored samples upon request of a child reaching adulthood.

Each year, thousands of newborns are screened at birth for genetic and metabolic disorders, saving countless lives as a result. AB 170 will do nothing to affect this important public health policy. Rather, the measure addresses the storage of samples after these lifesaving tests take place. It will require parents to be notified that their child’s blood and DNA will be kept for purposes of experimentation and require the state to obtain a signature from parents acknowledging that they have received information about the storage of their child’s blood sample and subsequent use in research.

“Newborn blood screening is an incredible tool that saves untold numbers of lives every year. Last year I co-authored AB 1559, a measure that expanded such screening for diseases that affect the brain and nervous system,” said Gatto. “But during an era of omnipresent intrusion in our lives by the government, policymakers must take steps to safeguard our personal information, especially medical records, which are particularly personal.”

California is just one of four states where newborn blood samples become the property of the state and also by far has the largest Biobank in the country with over 16 million samples being stored at its facility. The Department of Public Health then loans these samples to researchers for a fee. Such practices have raised concerns that highly personal genetic information contained in a genetic sample, such as predispositions for conditions like cancer or alcoholism, could become public and used for nefarious purposes. AB 170 will allow parents to make informed decisions about allowing their newborn’s blood sample to be retained and leased to researchers.

“Whenever any data is stored and shared, it can very easily fall into the wrong hands. Recent high-profile data breaches involving credit and medical records have heightened concerns about what personal information has fallen into the hands of criminals.” said Gatto. “Now imagine a similar data beach resulting in your most personal data of all—your genetic make-up—falling into the wrong hands. AB 170 is a proactive step against such a breach.”

The San Diego Union-Tribune and Orange County Register have editorialized in favor of AB 170 stating it strikes the right balance between a person’s health and privacy rights.

The measure will next be considered by the California State Senate.

Christopher Simmons, Pr Newswire

Protecting our children’s DNA

Before they are more than a couple of days old, 98 percent of the roughly 4 million babies born in the U.S. each year have a small sample of blood taken and screened for a variety of inherited conditions. Caught early, many of these conditions can be successfully treated, preventing death and disability.

Newborn screening is one of the great public health success stories in this country, but what happens to the samples after the screening process is completed raises serious and troubling questions of consent and privacy.

Newborn screening is the only widespread health testing in the U.S. conducted not by an individual’s doctor, hospital, or health care provider but by individual state departments of public health. It’s these state agencies that often continue to store these biological samples long after the screening process is over. Indeed, 19 states store the biological samples of newborns for more than two years.

In the case of California and a handful of other states, these samples are indefinitely stored in state repositories and made available to researchers — for a fee. If there is one commonality among state newborn screening practices, it’s the complete lack of transparency of the entire process.

Most parents are poorly informed about screening programs; having just had a baby and still in the hospital they often don’t see any written materials and such programs are rarely explained in person.

Nevertheless, parents in California and most states are assumed to have consented to long-term storage and third-party use of their child’s biological sample unless they explicitly refuse in writing. Parents, understandably, want to be actively involved in decision-making regarding their children’s personal health information. That choice is currently being denied.

The concern of parents that states retain their children’s biological information is heightened because storage procedures and security at these state facilities are arcane and we still have few laws that truly protect the privacy of genetic information. We are at a critical time in the development of medicine: the mapping of the human genome has provided powerful new tools to understand the genetic basis of disease and genetic tests can help diagnose genetic conditions, guide treatment decisions, help predict risk of future disease, inform reproductive decision-making and assist medication selection.

Californians are enthusiastic about the promise of genetic medicine; but are understandably fearful about how this powerful information can be abused. The sheer amount of genetic data being generated today, and its commercialization, raises serious medical privacy concerns. Many individuals are legitimately concerned that their genetic information will be used against them and are unwilling to participate in medical research or be tested clinically, even when they are at risk for serious disease.

The government has not classified the collection and use of newborn screening data as research and its unclear whether the Common Rule, which requires informed consent for human subject research, would apply. This lack of clarity leaves newborn data ripe for misuse.

Consent not only allows parents to make choices about their child’s genetic privacy but is crucial to promoting greater governmental transparency. Such transparency is especially important because newborn screening and storage is often exempted from state genetic privacy laws. Researchers and administrators working with these samples know very well how alarming newborn blood spot biobanking can sound to most people, which explains why many of these clinicians, researchers and state labs would prefer newborn screening practices keep a low profile. That desire shouldn’t trump the public’s interest. Moreover, there’s just no evidence to indicate that better consent and privacy policies would affect any actual benefits from these biobanks.

Newborn screening is one of the few forms of genetic testing to which almost everyone is exposed. Yet parental and just general public knowledge of newborn screening and storage practices is extremely limited.

Assemblyman Mike Gatto, D-Glendale, has recently introduced a bill (AB 170) to address some of these concerns. It requires the state Department of Health to do a better job of informing Californians about the state’s newborn sample storage policies.

The bill also offers parents, and children when they reach adulthood, more control over the decision-making process regarding the retention and use of these samples.

California must revise its approach to long-term storage and use of newborn DNA samples, and include parents in the decision-making process. With no overall governing privacy framework to ensure individual privacy and control over one’s own information, a public debate around newborn screening protections can’t happen soon enough.

Jeremy Gruber is president and executive director of the Council for Responsible Genetics, a public policy organization, U-T San Diego

Government DNA collection under microscope in California

In 2015, genes have many uses.

Soon after every baby in California is born, a hospital worker extracts and logs its genetic information. It will be tested for diseases and then stashed permanently in a warehouse containing a generation of Californians’ DNA.

For those charged with a felony – or, potentially, just arrested – a sliver of genetic code will be taken and placed in a state database that has grown rapidly in the last decade.

As scientists have mapped the personalized blueprints contained in each strand of DNA, the government has been collecting and storing reams of genetic material to combat disease and capture criminals. In seeking to shape when public agencies can take genetic information and how they can use it, lawmakers face a tension between individual privacy and public health and safety.

“You want to make sure government isn’t collecting too much DNA, but you also recognize it is the modern fingerprint,” said Assemblyman Mike Gatto, D-Los Angeles, though he differentiated genetics from fingerprints: “You’re taking the very stuff of life.”

It begins with a prick to the heel. Blood from every baby born in California is screened for diseases such as sickle cell anemia and severe combined immunodeficiency. Every state has a similar program. Where California differs is its policy of storing dried blood on cards indefinitely and, for a fee, loaning them out for research.

The advantages of immediately identifying and treating diseases are indisputable. What makes Gatto and privacy advocates nervous is the knowledge that the government can hold on to that information and share it without consent. Security concerns intensify those fears.

“I think it’s only a matter of time before there’s a high-profile hack, and then somebody would have access to your data,” Gatto said. “As we increasingly discover genes for everything from alcoholism to a propensity for violence, someone could interfere with your ability to get a job by saying, well, that person has the alcohol propensity gene.”

Gatto has a pair of bills that would allow parents to have their babies’ samples destroyed, and dictate when police officers can glean DNA. With the support of district attorneys, Assemblyman Jim Cooper, D-Elk Grove, has a bill allowing DNA collection from people convicted of certain misdemeanors.

While the Department of Public Health emphasizes that the infants’ information is kept anonymous and never assembled into a full genetic profile, skeptics point to a series of studies in which researchers identified supposedly anonymous donors to public genetics databases.

“DNA is a strong identifier of a person, and there is always a theoretical possibility of identifying someone,” Yaniv Erlich, an assistant professor of computer science at Columbia University, wrote in an email. He added that California “mitigates the risk of harm” by not storing some details and penalizing unauthorized release of any data.

Critics also question whether researchers can get their hands on samples. Texas shared newborn samples with a military laboratory hoping to enhance its forensic capabilities, alarming those who said the data should be used strictly for medical research.

“As we build out criminal DNA databases in California and nationwide,” asked Jennifer Lynch, a senior staff attorney at the Electronic Frontier Foundation, “are we going to get the point where law enforcement says, ‘Well, we have this giant repository with the information of everyone born in California in the last 30 years, and that’s a huge treasure trove’?”

Just as the newborn database’s benefits are firmly established, DNA has become indispensable for law enforcement.

Sacramento District Attorney Anne Marie Schubert called forensic DNA “the greatest tool ever given to law enforcement to find the guilty and to exonerate the innocent.” Since Proposition 69 in 2004 empowered law enforcement to sweep up samples from anyone arrested for a felony, the number of people in a Department of Justice database has grown substantially.

“That changed how we deal with DNA in this world,” Schubert said.

But the program is in dispute. The California Supreme Court will soon take up a case challenging DNA collection from people who have not been charged or convicted. Privacy advocates warn about overly broad data collection that ensnares the innocent and the guilty alike.

“Once you start collecting DNA before a person is even convicted of a crime, you’ve started down a road where you’ve erased any balance between the legitimate needs of law enforcement and individual rights,” said Jeremy Gruber, president of the Council for Responsible Genetics.

Speaking from years of experience in the Sacramento County Sheriff’s Department, Cooper said such fears are unfounded. He argued that most Californians will never enter the database.

“If you’re not out committing homicides or sex crimes, your DNA’s never going to pop up,” Cooper said. “So I think if you get arrested and you’re involved in this, there’s a certain right that you lose.”

Gatto’s bill would create new rules if the California Supreme Court strikes down Proposition 69’s mandatory collection provisions. It allows DNA collection only after a probable cause hearing and would automatically erase from the statewide database people who are not convicted.

“People who are innocent of crimes, they should have the right to have their genetic information be as private as they want it,” Gatto said.

The case follows the U.S. Supreme Court’s 2013 ruling that swabbing the DNA from someone arrested for probable cause was legal, akin to taking fingerprints. Justice Antonin Scalia warned in a vehement dissent of the long-term consequences.

“As an entirely predictable consequence of today’s decision,” Scalia wrote, “your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

While imposing limits on collection in some areas, Gatto’s bill enables DNA collection after misdemeanor convictions that would disqualify someone from owning a firearm.

Similarly, Cooper’s bill would have law enforcement collect samples not just from felony offenders but from people who are convicted of misdemeanors, such as fraud or drug possession, that were collection-triggering felonies until voters reduced sentences by passing Proposition 47 in 2014.

The change has dammed the flow of DNA into the state database, prosecutors say, in the process reducing their ability to make connections to previous crimes and find case-cracking leads. They note that repeat offenders tend to have long records: If a person’s DNA is already logged because of a less serious offense, investigators can identify that person when he breaks the law again.

“Whether it’s theft, possession of drugs, we’ve been able to tie them back to some of the most heinous crimes,” San Bernardino County District Attorney Mike Ramos said at an event announcing Cooper’s bill.

None of this is abstract for Gatto. His father was shot dead by a home intruder last year. As Gatto awaits a break in the case, he is working to regulate the very technology that could bring his father justice.

“For families like mine, who are waiting for breakthroughs that can be caused by DNA and similar evidence, it can be a very long, painful wait if these technologies are prohibited by the courts,” Gatto said. “The right balance is what’s critical here.”

Jeremy B. White, Sacramento Bee

Protect Californian’ DNA privacy

The recent hackings of millions of consumers’ personal information from health insurer Anthem and hospital group Community Health Systems highlight the need to maintain the privacy of individuals’ health records. So it is welcome news that Assemblyman Mike Gatto, D-Glendale, has introduced a bill to protect the privacy of Californians’ blood and DNA samples taken at birth.

All states collect blood samples from newborns to test for a number of health disorders. But California is one of seven states that retain samples – without parental consent – for later research and one of four that charge fees to loan the samples to researchers. Parents may opt out of having their child’s dried blood-spot sample stored, but they must do so in writing, and many are unaware of the option – or even that the state keeps their children’s DNA in the first place.

Assembly Bill 170 would strengthen these notice requirements and require the state to honor the request of a parent or guardian to destroy their child’s blood sample. Adults aged 18 or older could also demand that their own sample be destroyed.

“Whenever data is stored, data can fall into the wrong hands. Imagine the discrimination a person might face if their HIV status or genetic predisposition to a mental disorder were revealed to the public,” Mr. Gatto said in a statement. “Parents should have the right to protect their children and people should have the right to control how their personal medical records are used once they reach adulthood.”

Screening for diseases at birth should not give the state free rein to claim that someone’s DNA is property of the government indefinitely, much less profit from it. People are free to volunteer use of their genetic material, whether to the government or private companies, but AB170 is a commonsense step toward protecting the privacy of those with concerns who feel otherwise.

Orange County Register Editorial

DNA privacy bill strikes right balance

In 1997’s futuristic “Gattaca,” one’s DNA determined one’s destiny. Released a dozen years after the beginning of real-life genetic testing, the movie tracked a man “conceived by love rather than in a lab,” as Variety put it. Because his lousy genes limited his career, he went to “a DNA broker who sells false identities to the genetically inferior.”

As with all dystopian stories, “Gattaca” uses the future to explore trends in the present. Since the movie’s release, the genetic-data conundrum has become more pronounced. Testing offers great opportunities to cure disease and exonerate the innocent accused of crimes, but it also offers potential for government and private firms to invade privacy and misuse data.

A new bill, proposed by Assemblyman Mike Gatto, D-Glendale, attempts to create a balance by making it clear who owns the DNA samples already collected in California hospitals. “A government repository of the DNA of all children born? It sounds like something out of 20th century dystopian fiction,” Gatto’s office wrote, in a statement last week announcing the proposal.

As it further explains, newborns are tested — via a blood sample taken from the heel of about a half-million babies born here each year — and the information is sent to laboratories to screen for diseases and genetic disorders. Most parents don’t even know about the test. All states do this, but California is one of a handful where the state owns and retains the information, and even sells it to private research companies.

That’s the problem, according to Gatto. In an interview last week, Gatto described potentially troubling scenarios. When hackers stole people’s credit-card data from a chain store, that created problems for consumers — but imagine what can happen if hackers get into a database of genetic information? Right now, there are no real protections.

And then there’s the potential for official misuses of the data. Technology is developing rapidly. It’s not hard to envision a “Gattaca”-like scenario in which, as Gatto explains, eventually it’s possible to learn whether a person has a “violent gene” or is predisposed toward alcoholism. “It gets kind of disturbing,” he said. “I don’t mean to sound alarms, but it gets alarming.”

Supporters of the current system say the information used for research is not attached to any person’s name. But that may be a weak protection. “The state screening programs … de-identify newborn baby blood spots before loaning them out to research, but so far truly ‘anonymizing’ DNA has proved impossible,” according to a July Newsweek report that inspired the Gatto bill. Massachusetts researchers found the identities of anonymous DNA donors “by cross-referencing their data with publicly available information.”

AB 170 is a work in progress, but the parameters are simple: “The bill would authorize a parent or guardian of a minor child and the newborn child, once he or she is legally an adult, to request that the department destroy, not use for research purposes, or both, the blood sample, and the department would be required to do so.” It, in essence, gives the ownership right to its rightful owners. And it requires the state to provide various disclosures.

  • Reddit

Fortunately, this bill doesn’t take the Legislature’s usual “if in doubt, ban it” approach. The Newsweek article begins with a touching interview with a 36-year-old filmmaker who was identified as an infant with a rare genetic disorder. Had he not been tested and then treated, he would have faced a horrifically debilitating disease. Instead, he’s living a normal life. Gatto makes it clear that such testing “does a lot of good.”

But the program might need some constraints — and it certainly is worth a debate. Gatto is chairman of the new Assembly Committee on Privacy and Consumer Protection, which promises to be one of the most significant committees in the Assembly given myriad and growing threats to our privacy and civil liberties.

Maybe the committee will help rebuild a long-needed and bipartisan “civil liberties coalition.” After all, it’s in everyone’s interest to assure movies such as “Gattaca” remain nothing more than entertaining fiction.

Steven Greenhut-UT San Diego

Ca Governor signs DNA Protection Act

Somebody note the date and time: Assemblyman Tim Donnelly, the conservative former gubernatorial candidate who spent much of the spring trashing Gov. Jerry Brown, just said something nice about … Gov. Jerry Brown.

Brown on Friday signed Donnelly’s AB 1697, the DNA Protection Act, which prohibits using the state’s criminal-justice DNA database from being used as a source of material for testing, research or experiments by any person, agency or entity seeking to find a causal link between genetics and behavior or health.

“I would like to thank Governor Brown for standing with me once again to defend the civil liberties of all Californians,” Donnelly, R-Twin Peaks, said in a news release. “California will continue to use DNA samples for forensics, missing persons, collecting evidence or other legal means. With AB1697 now law, we have prevented government from abusing our privacy. We have protected the civil rights of all Californians from this high tech tyranny.”

Donnelly said the new law is critical to protecting those who’ve been arrested from the government’s genetic snooping.

“Currently, the government of California has hoarded over 1.8 million DNA samples,” he said. “As the cost of DNA sequencing decreases and the ability to process large amounts of data increases, the state has the unprecedented ability to link genetics with criminal activity. While this may sound like the movie ‘Minority Report,’ it is no longer science fiction. Thanks to AB1697 becoming law, the DNA of every Californian will be safe from being violated by an ever-intrusive government.”

The bill certainly wasn’t controversial. The Assembly passed it 78-0, and the state Senate passed it 33-0.

Josh Richman , Mercury News

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

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.
Sign Up for the Watchdog newsletter!

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

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