It's Your DNA... Or Is It? ACLU Suit Aims to Keep Your Genetic Blueprint out of the Government's Hands

By: Rebecca Farmer

On a crisp Saturday in March 2009, Lily Haskell set out to join a peace rally in San Francisco to oppose the Iraq war. What she didn't know at the time was that by the end of the day, she would be forced to turn a DNA sample over to be placed in a national databank.

During the demonstration, Haskell was arrested on suspicion of trying to help another protester held by police–a felony. She was held for several hours in a San Francisco jail. Though not formally charged with any crime, Haskell was told that she must provide a DNA sample. Alarmed, she asked to speak with an attorney but was informed that refusing to give a sample would result in an automatic misdemeanor charge. She consented.

"Now my genetic information is stored indefinitely in a government database, simply because I was exercising my right to speak out," Haskell said.

Haskell was later released, and no charges were filed against her.

Haskell is now the lead plaintiff in the ACLU of Northern California's class action lawsuit seeking to stop California's policy of mandating that DNA be collected from anyone arrested for a felony, whether or not they are charged or convicted. The suit, Haskell v. Brown, was filed in federal court in October 2009. The mandatory DNA collection policy is a result of Proposition 69, which was enacted by California voters in 2004 and went into effect on Jan. 1, 2009.

Under the new law, anyone arrested for a felony must provide a DNA sample that is then stored in a criminal database accessible to local, state, national, and international law enforcement agencies. The requirement can be applied to victims of domestic violence who are arrested after defending themselves as well as to individuals who have committed non-violent offenses like writing a bad check and to people who are wrongfully arrested.

In the lawsuit, the ACLU of Northern California is arguing that the law violates constitutional guarantees of privacy and freedom from unreasonable search and seizure.

"Forcing a person to provide a DNA sample without any judicial oversight violates the constitution," said Michael Risher, ACLU of Northern California staff attorney. "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."

The chilling implications for free speech are of great concern.

Aakash Desai, a UC Berkeley graduate student in environmental engineering, participated in one of the recent large demonstrations against university fee hikes and custodial layoffs. He was arrested and taken to the Berkeley city jail, where he was told he was being charged with felony burglary. Like Haskell, Desai learned that refusal to provide a DNA sample is itself a misdemeanor and would result in a higher bail amount. He relented and swabbed the inside of his cheek seven times, as the law mandates.

"I felt like I was being burglarized," Desai noted in a declaration to the Court. "Each swab was like being coerced into giving up part of my being."

People like Haskell and Desai who are innocent and were not even charged with a crime can seek to have their DNA sample expunged from the state database, but the process is cumbersome.

When another plaintiff, Jeffrey Patrick Lyons, contacted the San Francisco District Attorney's office seeking information about how to have his DNA removed from the database, he was told that he would have to file a motion and to consult with a lawyer. Because Lyons had been represented by a court-appointed lawyer, he was not sure where to turn next. Like Haskell and Desai, Lyons had been arrested at a political demonstration. His case was dismissed.

"Automatically collecting DNA from people who are merely arrested ignores the presumption of innocence. It blurs the line between being suspected of a crime and being convicted," Risher added.

The ACLU of Northern California's lawsuit also points to the huge racial impact of the mandatory DNA collection law. People of color are already disproportionately represented in California's criminal justice system. Racial profiling and heavy police presence in neighborhoods that are predominantly made up of people of color are likely to exacerbate the problem.

The United Kingdom's broad national DNA database has already been found to have significant racial disparities. The organizations GeneWatch UK and Oakland- based Generations Ahead report stark figures: that country's DNA database contains records on 27 percent of the black population but just 6 percent of the white population. In late November 2009, the BBC reported on a former UK police chief who testified that police officers in England and Wales had made arrests just to get people into the DNA database.

Data from the California Department of Justice reveal that nearly one-third of the hundreds of thousands of arrests every year in California on suspicion of a felony never result in a conviction. A disproportionate number of these arrestees are people of color.

Meanwhile, California's huge forensic DNA database–the third largest in the world–already faces tremendous backlogs. The resources spent collecting thousands upon thousands of DNA samples from arrestees consume resources that could instead be devoted to processing crime-scene samples to help solve violent and serious crimes like rape, assault, and murder.

Update at press time:
Shortly after filing this lawsuit, the ACLU of Northern California asked the court for a preliminary injunction to stop the state from collecting DNA from people who have merely been arrested. That motion was heard on Dec. 4, 2009. In a disappointing ruling on Dec. 23, 2009, U.S. District Court Judge Charles Breyer denied ACLU's request for a preliminary injunction. The ACLU of Northern California filed an appeal of the denial of the preliminary injunction. On Jan. 29, the court certified the case as a class action, and denied the government's motion to dismiss the case. The lawsuit and advocacy for genetic justice continues.

Learn more:

Haskell v. Harris

ACLU Lawsuit Challenges California's Mandatory DNA Collection at Arrest

Article by ACLU of Northern California Attorney Michael Risher in Genewatch (summary)

Read the full paper

California Dept. of Justice Familial Search Policy

ACLU of Northern California Amicus Brief in United States v. Pool

Federal Judge Rules City of Fresno Violated the Rights of Homeless Residents

Rebecca Farmer is the Communications Director at the ACLU of Northern California.