Unregulated Public and Private DNA Databanks Need Legislative Supervision

DNA databanks are proliferating outside of the FBI’s CODIS network of law enforcement databanks and the regulatory framework that presently governs the collection, retention and distribution of DNA samples and records. These shadow DNA databanks primarily exist at the local level and belong to local police agencies, or to private companies that sell databank related services to the police (like collection and test kits, and software to run and network DNA databanks). You can read a comprehensive article about the underregulated world of state and local DNA databanks here.

Local DNA databanks are a concern precisely for the reasons that explain their existence and proliferation: (1) police are able to avoid regulation and oversight of who they collect DNA from or how they retain or use DNA to investigate crime; (2) police can broaden the types of crime that DNA is used to investigate to more discretionary based offenses like property crimes and other quality of life offenses; (3) police can surreptitiously maintain genetic surveillance over suspect individuals or groups; and (4) police can perform familial searching in a state (like Maryland or Washington, D.C.) that prohibit the practice in their databank.

The utility of these unregulated DNA databases is presently unknown because there are no uniform standards for the reporting of data about who has been placed in a local DNA databank, why or how DNA samples have been collected, or how DNA samples are retained, used or further distributed. Without such reporting the public, and state law makers, will never know whether local DNA databanks are being misused, or further linked up to other public or private databanks like department of motor vehicles, license plate reader databanks, social service databases, mental health providers, public health providers, or private informational databanks like Choicepoint. Also, any disparate impact or effect by race, ethnicity, or class will not be known.

Courts have largely taken a hands-off approach to regulating local databanks, allowing DNA to be collected without a warrant or probable cause through the liberal use of the doctrines of consent or abandonment, coupled with the refusal to impose any restrictions on the use of DNA that has been lawfully collected. A United States District Court has described the unregulated operation of Prince George’s County’s local DNA databank. See, e.g., United States v. Davis, 657 F. Supp. 2d 630 (D. Md. 2009); Varriale v. State, 119 A.3d 824 (Maryland 2015) (police may use a person’s voluntarily provided DNA sample to exonerate him in one investigation to investigate him in another, unrelated, crime). Although the faithful application of traditional Fourth Amendment Doctrine should prohibit a physical intrusion to collect DNA evidence of a crime, its further development and application to the use of DNA or genetic information is uncertain.

Legislatures have recognized the need to regulate DNA collected and retained for use in CODIS but only five have expressly addressed local DNA databanks. Two—North Carolina and Wyoming—require that local DNA databanks comply with the statutory protections for the state DNA databank. N.C. Gen. Stat. § 15A-266.9; Wyo. Stat. § 7-19-402. Three others—California, Hawaii and Missouri—expressly exempt local police DNA databanks from state regulation. Cal Pen Code § 297(e); HRS § 844D-55; § 650.057 R.S.Mo.(3). No state has addressed the regulation of private DNA databanks maintained or used for the purpose of facilitating criminal investigations.

This lack of legislative oversight for local DNA databanks is a concern. Since the beginning of law enforcement DNA databanking with the enactment of the federal CODIS law in 1994, the importance of legislative regulation and oversight of DNA collection practices has been widely recognized. DNA databases “inevitably reflect the race, class and geographic biases imbedded in police and judicial practices,” Simon Cole, Fingerprint Identification in the Criminal Justice System: Historical Lessons for the DNA Debate, DNA and the Criminal Justice System: The Technology of Justice, 61, 83 (David Lazer ed. 2004), and as the former dean of the University of Maryland’s law school has noted, “[f]rom 1990 to 2004, blacks were five times more likely than whites to be incarcerated, and in 2000, blacks and Latinos comprised 63% of incarcerated adults, even through together they represented 25% of the total population”—trends that are attributable to “racial profiling, discriminatory sentencing, and general racial bias in the criminal justice system….” Karen Rothenberg & Alice Wang, The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma, 78 L. & CONTEMPT. PROBS. 344, 352 (2006) (footnotes omitted).

Exactly because of the disproportionate representation of historically disfavored groups in the criminal justice system, they are also disproportionately represented in governmental DNA databanks. Robust and unregulated local DNA databanks increase the likelihood that unpopular groups or disfavored persons will experience unwarranted law enforcement surveillance and societal stigmatization in the future.

Absent effective statutory regulation, police and private companies will remain free to place DNA profiles in local databases arbitrarily, and for reasons not legislatively intended or authorized by CODIS. Model language should be drafted and provided to local stakeholders to consider for the purpose of regulating local DNA databanks.

DNA is a powerful investigative tool to identify and apprehend criminal offenders, but its potential for abuse is real and must, therefore, be subjected to close legislative scrutiny and supervision. Statutory regulation of local police DNA collection and databank practices will clearly advance these ends.