Hacker News Reader

The difference between shedding of hair and skin and throwing away paper is a question of intention and ability. I could choose to take more care with the paper, but avoiding shedding any DNA is basically impossible. Compare it with new x-ray/radar/EM techniques police can use to eavesdrop from miles away or even view you through walls, or read what you're typing or viewing on your various screens--there's basically no way to avoid transmitting such information into the world. Should police be able to gather it without going to a judge?

You can't help revealing your whereabouts in public places by reflecting photons off your face or your license plate, and it is legal for police to photograph and record you in a public place without going to a judge.

Right; but dna reveals more than who you are. It reveals details of your health, abilities and heredity. That can be considered more personal/private than just your name and address.

Personally I regard the issue as moot; dna identification is here and not going away.

Right, but there's no expectation of privacy in those cases.[1]

https://en.wikipedia.org/wiki/Expectation_of_privacy

I'm not saying you are wrong as to the law, but if such a reasonable expectation does not exist then it's permissible for arbitrary third parties to analyze DNA from i.e. a discarded strand of hair - not only law enforcement.

Under this standard, would police be allowed to explore the private (?) hair, DNA, etc. evidence left behind at crime scenes?

I don't really like the idea of tricking someone into giving a DNA sample, but I'm pretty sure it's been upheld before (they searched someone's garbage, IIRC) and this wasn't a massive dragnet, it was a trap to get DNA from one person who they must have suspected rather strongly given how they trapped them.

No under this standard they can collect at crime scenes so long as they have a warrant to do so. They would be prohibited only from doing searches without a valid warrant meaning the warrant must be reasonable, specific, and signed by a judge. Searching a crime scene is both reasonable and specific, and getting a warrant is easier then ever today with most states adopting electronic warrant systems.

>so why should the hair be different?

Because it is unreasonable to avoid. A reasonable person who wants to maintain privacy has the ability to avoid throwing things they don't want to be found out. A reasonable person who wants to maintain privacy must be unreasonable in order to prevent his or her DNA from being all over the place.

IANAL, but I feel like the 4th amendment needs to be interpreted in light of the difficulty of obtaining private information on a person at the time, and the ease of obtaining it now. At the time, the 4th amendment pretty much prevented law enforcement from getting any information on you that you didn't broadcast (absent a warrant). I think it is reasonable to use that standard.

> (2) Unreasonable search and seizure is relative...invading a persons time/space/property/anything.

But it is invading a persons privacy. Their DNA contains information that is as private to them as what they do in their home with the blinds drawn.

I don't think one can expect privacy in a public place; the police can photograph you walking through a public park without a warrant. In fact, anyone has the right to photograph you in a public place.

It seems to me that there is at least an argument that dropping your DNA in a public park is not very different.

Thats why we are proposing a non-profit group to collect dna samples 'left' in public places by politicians... right?

You can absolutely expect certain kinds of privacy in a public space. (Like with up-skirt photos, for instance?) The question that needs to be resolved is if collecting DNA violates people's privacy in an unreasonable manner. I think this really falls back on the question of what harm you can do to someone with their DNA.

The EFF apparently feels that you could do quite a bit of harm with it, if not today, then very soon. To me, it seems just about as bad as stalking someone.

> You can absolutely expect certain kinds of privacy in a public space. (Like with up-skirt photos, for instance?)

I upvoted you, but I'll say for the record: this is an excellent point.

I agree with some of your points, except that the initial absence of probable cause makes this case worthwhile.

The reason to defend constitutional rights in this context is about what the government 'could' do, not what they 'should' do. As an example, I think very few people would argue about the plausible deniability of a person found with a dead body in their trunk and yet there are cases arguing about whether or not similar 'evidence' should be considered if it was discovered due to a traffic stop without cause or an improperly served search warrant, etc. The reason is not because constitutional rights advocates want the possibly guilty to go free and not because we don't want law enforcement to be able to do their jobs, but because we don't want abuses to become the norm rather than the exception.

If the courts decide that the DNA of an individual can be tested without a warrant or even probable cause, then they could just begin testing everyone that had even passing contact with a victim, a neighborhood street, a school, an entire city.

At the most extreme, the FBI could then begin to secretly collect our DNA when we go to any federal office and eventually have an entire database they can search for a match to any random DNA found at a crime scene. You might try to compare this to fingerprint databases, but those are databases of people where they was legal cause to require collection of their prints--convicted criminals and law enforcement officials are two examples. And remember that neither fingerprints nor DNA are definitive; labs make mistakes, samples are mishandled, etc.

If there was no fear that evidence could be thrown out because of how it was collected, then law enforcement would just proceed unhindered in any investigation and worry about consequences later when they got their arrest.

If you are interviewed at a police station, how is that not invading a persons time/space/property/anything if the intent is to steal some dna left on the chair? It sounds to me as using subterfuge in order to take someones DNA, and subterfuge should not allow the police to circumvent the law. That way makes the law meaningless, and that surely can't be the intent of the court.

Either give them direct permission to take DNA without cause, or make it illegal regardless of what loop whole they can think up.

If the DNA is just used for uniqueness identification like finger prints then I don't see the argument.

People have learned to wear gloves in crimes to avoid finger print collections. With DNA, they will need hair nets, exfoliate and more skin coverage to avoid detection.

Or alternatively spread so much random DNA around the crime scene that its impossible to sequence all the samples. Reasonable doubt in a can.

(I think 'Almost Human' had something like this in one of the episodes)

> If the DNA is just used for uniqueness identification like finger prints then I don't see the argument.

Your fingerprints don't tell me anything about your mother, your medical history or future, or hers.

Unlike fingerprints, when someone takes your DNA, they search your entire family.

I don't see how this would be different from lifting fingerprints from a discarded cup. Does that happen in real life or is that just a movie/tv thing?

I think the argument (correct me if I am wrong) is that DNA actually contains encoded information, where a finger print is just a unique pattern.

But law enforcement is not using the encoded information, they are just taking a unique pattern from the information and using it for identification purposes.

I could for sure envision a situation where they use the encoded information. Let's say they find that the sample comes from a person who is predisposed to a heart condition and they already have a description putting him in the 40-50 age range. That's a pretty significant piece of information that can help narrow down a search or canvass, especially if there's any other meta data they can correlate to the crime.

Why would your example be unreasonable? Sounds like good police work.

Just that it is very unlikely that you could infer the clinical manifestation of a heart condition just from DNA alone...

No, I would not consider it unreasonable but a lot of people probably would. And I don't know enough about inferring future health conditions from DNA alone, but I meant it as an example for a future possibility. If anyone does know, exactly, what you can infer from DNA alone and how that would be extremely helpful.

The difference is that lifting fingerprints can only tie you to a crime scene. In this case the DNA evidence tied him to the actual crime.

What about the DNA tied him to the crime as opposed to the just the crime scene? The article doesn't really go into that.

If they're just comparing the DNA that was left behind at the police station to DNA they found at a crime scene, I don't see any issue.

This was a rape case. Leaving fingerprints or even DNA on a bloody knife can only confirm you picked up the knife, and therefore that you were present at the scene. In this case the DNA identified him as the perpetrator of the crime.

IMHO the EFF have chosen the wrong case to fight here.

You can't choose what cases will set precedence, and, once set, it is very difficult to "unset".

Lawyers can and do choose which cases will be set for precedent all the time. It's somewhat difficult to ensure that your case is the only one going after the said precedent at the right time, but just about any time a new law is passed that people object to, lawyers begin shopping for ideal candidates and then determining the best ways for them to break the law in the least damaging way, and in the best possible district to get the law deemed unconstitutional.

This typically happens with civil rights cases, and it's worth noting that there are certain legal groups that are better at it than others -- the Second Amendment Foundation is exceptional, and it's a large part of why their win record is so good.

I'm not sure there is any point in making a distinction, because while the DNA identifies him as the perpetrator, it also ties him to the crime scene.

Therefore, if we made a rule that evidence that ties you to a crime scene (such as fingerprints) can be collected without a warrant, but evidence that identifies you as the perpetrator needs a warrant, couldn't the police simply collect the DNA from the chair without a warrant, and only use the DNA from that sample to tie him the crime scene?

Then, once he's tied to the crime scene, that could be used to justify a warrant to collect a direct DNA sample directly from him, and then they could use that second sample to identify him as the perpetrator?

I agree that this makes the EFF look very bad. Persecuting rape is difficult enough as it is. I can't figure out any hypothetical example where this kind of identification testing could be abused without literally fabricating all sorts of additional evidence.

And if the rapist in this case was questioned as a subject, the police could have gotten a warrant for the DNA anyway.

Another difference between lifting fingerprints and lifting DNA is that the genetic markings can be studied to give further insight into the person - for example medical, removing more of their privacy, which without probable cause, is in breach of the 4th amendment.

A fingerprint however, if found in public and considered fair game tells you one thing - that you were there, or someone reasonably competent in lifting and transferring fingerprints has a copy of your fingerprint and is attempting to put you in the spotlight. It doesn't tell the discoverer of your print anything further about you.

>I don't see how this would be different from lifting fingerprints from a discarded cup.

Your fingerprints don't tell me anything about your mother, you medical history or future, or hers.

When someone takes your DNA, they search your entire family.

Testing DNA for identification purposes at best establishes identity and a small part of your family tree. Not even the latter so much, because your family would have to be in the system, too. And your family relationships should be something police is entitled to find out.

People have a reasonable expectation of privacy. This means that the things they make public should be known to them to be made public. If I didn't intend to leave my DNA, then you shouldn't be able to use it unless you're investigating a related crime.

If I accidentally left my credit card on the ground, you would not be legally allowed to use it. I would have to have left it there on purpose.

The 'reasonable' is not about acquisition of information, but about the knowledge of the source. For instance, it is unreasonable for me to expect privacy in the trash bin, but not unreasonable for me to expect privacy in the bed of my truck.

Yea the EFF doesn't really have a very compelling argument here.

I'm not even sure what the downside is in a policy sense. The only way this has any effect on anyone's lives is if it is used to catch you for a crime you committed.

Not so fast. Often DNA can identify that you are likely related to someone who committed a crime. This can lead to interesting results in cases where the relationship is not known.

For example consider the case where a couple with fertility problems used a sperm donor. The child is never told that this happened. Then police identify that the crime was likely committed by someone who shares 1/4 of their DNA with the child. In other words that child's grandchild, grandparent, half-sibling, aunt or uncle. You can imagine the sudden disruption when the police show up?

It gets even worse if the child was the result of an affair. Or if the person who committed the crime was. Or if the child was in some other way the result of a family secret.

Oh right, and it gets more problematic. The traced DNA is not necessarily the criminal's. You find hair at the crime scene, but maybe it was present before the crime. The hair is a lead, it is not proof.

These cases are common enough that schools long ago learned not to use people's families for demonstration of how genes work in biology classes. Heck, they are common enough that I personally know people that I know are in these kinds of situations. And you have to get to know someone pretty well before you find out about stuff like this.

And now we're going to have law enforcement randomly exposing private situations like this. Maybe we as a society consider this worthwhile. But there is no question that privacy will be invaded here.

Those are poor arguments.

Please explain why these are poor arguments to rebut the claim, The only way this has any effect on anyone's lives is if it is used to catch you for a crime you committed.

I think you're describing questions that, before DNA analysis, were explored through traditional police investigations all the same. It would be just as disruptive if a detective figured out that the suspect is the result of an affair through tracing birth certificates and interviewing doctors and nurses as by matching DNA samples.

Additionally, your hypothetical also assumes that the person(s) related to the supposed subject have their DNA on file or are somehow compelled to provide it as evidence - precluding some kind of existing database, or a kind of chicken|egg situation. That is out of scope of this argument.

That is actually a very safe assumption.

As articles like http://www.pbs.org/wgbh/nova/next/body/dna-databases/ make clear, police already ARE creating DNA databases. And since there is little regulation around this right now, they are free to be creative in assembling them. For example you can get a good DNA sample from the straw used to blow into a breathalyzer. So get stopped at a routine traffic stop, your name, license plate, and DNA can go into a database. And voila, police can now match you and your relatives against crime scenes!

Think this is crazy? This has already been happening. See https://www.prisonlegalnews.org/news/2013/aug/15/maryland-co... for breathalyzer DNA being used to convict of a crime, http://edition.cnn.com/2013/02/26/justice/supreme-court-dna/ for the Supreme Court OKing DNA tests for arrests without a conviction, and http://www.nbcdfw.com/news/local/North-Texas-Drivers-Stopped... for a random example where this was done to random people at a traffic stop. Yes, there is outrage at present. But over time this could become the new normal.

As technology improves and costs come down, incentives to match everyone to DNA tests will go up, not down. Heck, I remember as a child in Canada over 30 years ago having police come to my elementary school and taking everyone's fingerprints. I believe that the cause was so that if anyone went missing, they could identify us. But once that data is collected and goes into databases, it doesn't come out.

Heck, how many parents would give consent today for their 2nd graders to get a DNA test for that purpose?

@btilly

Won't let me reply next-in-thread. I never said that what you describe wasn't possible, and I'm indeed aware of those instances you bring up. What I'm saying is that that is out of scope of this argument. EFF is talking about collection capabilities. Immediately jumping to the 1984 senarios hurt the overall grounding of the argument.

A warrant makes little difference in these cases, so why bring them up?

The point of a warrant is that a judge has decided that the needs of law enforcement override the right to privacy in this case. The point of the lawsuit is to set a precedent saying that the police cannot simply collect and analyze DNA without warrants.

Therefore if there is a demonstrable privacy issue to DNA collection and analysis, then requiring warrants is the accepted way in our legal system to balance the needs of law enforcement against people's right to privacy.

I think this is also a stretch. Fingerprint databases have existed for quite some time, and yet police are not required to get a warrant to check finger prints collected from a recovered weapon against that database, which can reveal quite a lot about the history of the person.

Fingerprints cannot tell you who a person is related to, or about their likely medical conditions. DNA can. (Though the limited set of markers used in police databases can't. But they also misuse those markers and overestimate the odds of a match. However that is a different and more complicated issue.)

Clearly there is some potential effect, so yea you are right. But this is pretty tenuous, rare, and this sort of risk comes with any police investigation.

If the police see a red BMW leave a scene, it might accidentally cause a person with a red BMW to be falsely investigated.

Human eyewitness evidence is even worse.

So yea, while there is some effect, it is no more than what we already accept.

>The only way this has any effect on anyone's lives is if it is used to catch you for a crime you committed.

Or your child. I guess you don't care if you send your kid to the chair though.

> Picking up papers out of the trash has always been fair game for law enforcement

AFAIK LE still needs a warrant of some kind in order to go through your trash. At least that's what I remember from watching The Star Chamber.

It probably varies by jurisdiction, but generally, trash is abandoned and you retain no rights over it.

Should it be fair game for me to download a movie from "some site I found it on", because I didn't take it from the studio itself?

If copyright works through "authorization", I don't see why we should accept it as natural and normal for authorities to use our fingerprints, hair, or even sperm without our permission. Speaking of the last one, I don't think it's legal for a woman to impregnate herself with a man's sperm by taking it from a used condom and without his knowledge?