Analyzing and indefinitely keeping the DNA profiles of thousands of Californians arrested for felonies, but never charged with a crime, is not just an ominously overbroad practice by law enforcement—it’s an invasion of privacy that violates the state’s constitution. Last year EFF and our co-counsel Michael Risher filed a lawsuit against California challenging its DNA retention and search practices on behalf of the Center for Genetics and Society, the Equal Justice Society, and an individual plaintiff, writer and editor Pete Shanks.
Attorneys for the state responded to the case by telling a judge there’s no basis for it, no law is being broken, and it should be dismissed. This is simply wrong. We asked the judge this week to reject the state’s callous indifference to the privacy rights of Californians and its attempt to sweep its conduct under the rug.
DNA can reveal a vast array of highly private information, including family relationships, ethnicity, physical characteristics, illnesses, and genetic traits. People have a right to expect that this information will remain private and out of the hands of law enforcement. Yet, a person arrested for a felony in California must submit to the collection of their DNA, which is then sent to a state lab for analysis and generation of the individual’s genetic profile—whether they were released without charge, or the charges were dismissed.
Once the profile is created, the state puts it into a California DNA database and automatically shares it with law enforcement agencies all over the country through an FBI-managed DNA database. It stays in the national database indefinitely and is regularly accessed and searched by thousands of other agencies.
More than one-third of all those arrested in California in 2017 were released and never charged, had their charges dismissed, or were acquitted. But their DNA profile is likely still in the national law enforcement database being accessed by police all over the country. And most probably don’t even know it. Police are not required to tell arrestees that their DNA is being shared nationally, nor are they required to disclose to arrestees that if they are never charged or are acquitted, they can request that their DNA profile be expunged.
People who find out they can apply to remove their DNA profile face a long, multi-step process with built-in delays. Some are required to get a letter from the prosecutor who attempted to charge them—but the prosecutor isn’t required to provide it.
These Orwellian practices must end. There’s simply no legitimate governmental purpose for keeping and continually searching the DNA profiles of people who are not convicted of any felony crime. We told the court that it must stop law enforcement from violating people’s right to privacy over their own biometric data. Arrestees who are cleared shouldn’t be marked for the rest of their lives with their genetic information being made available for any law enforcement agency to examine. They have the same privacy rights and protections as every Californian.
The state’s constitution doesn’t allow taking a DNA sample collected as part of the booking practice for jail security, and repurposing it for use in general criminal fishing expeditions to connect arrestees who are never charged with unrelated, unknown crimes. We’re looking forward to our clients’ day in court.