Line Up for Cheek Swabs

My knee-jerk response is to agree with Scalia’s conclusion on the right of police to collect DNA at arrest:

The law authorized testing for purposes of identification, Justice Scalia wrote, but only for missing people and human remains. It said nothing about identifying arrestees. “Solving crimes is a noble objective,” he concluded, “but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law enforcement searches. The Fourth Amendment must prevail.”

Perhaps Scalia, Sotomayor, Ginsburg and Kagan are wrong, and the other Supremes are right. But spare me the illogic of saying that cops are doing it to identify the person in custody, which was the majority’s reasoning. Cops gather DNA in hopes they can tie the person under arrest to another crime.

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282 replies
  1. 1
    aimai says:

    I’m wondering why Scalia, who usually sides with the authorities against the rabble, is actually siding with the liberals on this one? Does he anticipate that lots of guys arrested for domestic violence, or for open carry, or for teabagging behavior are going to get swept up and then DNA tested? Scalia always seems like a “verdict first/trial after” kind of guy so I just don’t see why he’s gotten so hot under the collar about this.

  2. 2
    Cassidy says:

    Cops gather DNA in hopes they can tie the person under arrest to another crime.

    And? How exactly is this a problem?

    They also gather DNA to tie them to/ rule them out from the crime currently being investigated.

  3. 3
    Wag says:

    I’m going to repost my final response from the thread yesterday about this.

    DNA is a source of surety in a world of poor recollection, DA misconduct, lousy defense attorneys, and general ignorance. DNA can exonerate the innocent and can convict the guilty. I support both uses fully.

  4. 4
    Comrade Scrutinizer says:

    @Cassidy:

    And? How exactly is this a problem?

    Lack of probable cause, for one.

  5. 5
    pharniel says:

    I actually like his point that if we’re going to allow police to gather DNA at arrest we should discard the whole pretense and DNA swab every newborn just to get it over with and ensure equality of collection.

  6. 6
    Cassidy says:

    @Comrade Scrutinizer: If they’re being arrested, then there is probable cause.

  7. 7
    joes527 says:

    @Cassidy:

    And? How exactly is this a problem?

    Search without warrant or probable cause. There is a scrap of paper around here somewhere that says that that is a no-no.

  8. 8
    state22 says:

    Um. While DNA might convict/clear a particular suspect (note, arrest is merely the first step in the process and casts the widest net), the real value to a DNA database is that once it is big enough, you can use it to identify unknown persons by linking them to their relatives.

    DNA Dragnet anyone?

  9. 9
    Cassidy says:

    @joes527: You’re stretching…a lot. Should change your name to RW Gumby.

  10. 10
    👽 Martin says:

    Cops gather DNA in hopes they can tie the person under arrest to another crime.

    DNA isn’t helpful with property crimes. VERY helpful with assaults – particularly rape cases – where fingerprints often aren’t available (or useful). Interesting that they only had it apply to felonies, so they seem somewhat aware of this.

    I’m of mixed thoughts about this. Cheek swab is no more invasive than a fingerprint. DNA databases really have no more potential for abuse than fingerprint databases, but are more accurate. My instinctive reaction was to think that this is a bad idea, but I’m struggling for a solid reason for that.

    It’s possible that it’s a bad decision by the court without being a bad idea – that’s a question for the lawyers to argue.

  11. 11
    maya says:

    “Purposes of identity”? Is DNA matchup that far advanced it can correctly identify individuals and solve crimes before the commercial break a la CSI? Last I heard it takes awhile for the testing process to be completed. What happens to the accused until then?

  12. 12
    Cassidy says:

    This is such an insanely stupid topic. How many times in your life have you given up a blood sample or peed in a cup? Jesus. Everyone’s a fucking privacy advocate all of a sudden while tapping away on their smartphones. Get over it. If you want privacy, get off the fucking computer.

  13. 13
    Belafon (formerly anonevent) says:

    @aimai: Scalia has been very consistent in his attempt to limit the power of police. He’s the one who has argued, for instance, that you cannot point a thermal imaging camera at a house just to see who might have patterns consistent with growing pot, or that you cannot just stick a drug sniffing dog on a porch to see what it can smell.

  14. 14
    cleek says:

    Cops gather DNA in hopes they can tie the person under arrest to another crime.

    that’s the same reason they fingerprint people. are you opposed to that, too?

  15. 15
    mistermix says:

    @Cassidy: Read some of James Fallows’ latest postings about small pilots being detained and dogs “triggering” (probable cause) before you buy the notion that arrest means probable cause. Cops are really good at manufacturing probable cause.

  16. 16
    Punchy says:

    Cops gather DNA in hopes they can tie the person under arrest to another crime.

    Wait….you’re against this? So innocent peeps can continue to sit in prison, Andy Dufresne-style, while the real perps get arrested, booked, and incarcerated for unrelated crimes, leaving that exculpatory DNA evidence uncollected?

    What the hell is wrong with you?

  17. 17
    Cassidy says:

    @maya: I don’t think it takes long, but there is a huge backlog of samples to be run, from what I’ve read (which could easily be wrong).

  18. 18
    Ecks says:

    Do we have issues with DNA samples leading to false positives when connecting people to prior crimes? Because if so then this law is seriously problematic. Otherwise I’m ambivalent.

    Where is the line?

    Nobody objects if you test someone’s DNA with probable cause for one crime, and in so doing uncover that they did another.
    Everybody objects if you want to test random people on the street just on the off-chance.

    But there’s a lot of room between those two. This law draws it at “probable cause for one crime”, but what about the point of arrest (at which we already fingerprint people)? The point of conviction, in cases where DNA wouldn’t otherwise have been taken?

    My intuition is that having your cheek swabbed is only slightly more invasive than having ink put on your finger tips and being made to press it on paper, and so a similar standard should be applied.

    But maybe I’m wrong and need to hand in my pinko commie card over this.

  19. 19
    Comrade Scrutinizer says:

    @Wag:

    DNA is a source of surety in a world of poor recollection, DA misconduct, lousy defense attorneys, and general ignorance.

    Farah Jama might disagree.

  20. 20
    Figs says:

    @👽 Martin:

    This was my thought too. Cops can go back and reference fingerprint databases for unrelated crimes, right? Does fingerprinting count as a Fourth Amendment violation? If not, why would a cheek swab?

  21. 21
    Villago Delenda Est says:

    Cops gather DNA in hopes they can tie the person under arrest to another crime.

    DING DING DING DING DING

  22. 22
    Belafon (formerly anonevent) says:

    @Cassidy: There’s probable cause for one crime. The police want to use this to solve any crime that hasn’t been resolved. And the reason “probable cause” is in the constitution is to prevent the arrest of someone just to see what they might be guilty of.

  23. 23
    khead says:

    I see Cassidy is still looking for that prison shower.

  24. 24
    Cassidy says:

    @mistermix: Sure. In a lot of cases, probable cause meant being a black male with a hat on sideways. I’m not saying those aren’t wrong and the system shouldn’t be reformed. In the big picture, though, a simple DNA swab can close out a number of cases and exonerate those who are wrongly incarcerated.

    Yes, I recognize that the wrongful treatment of minorities by the police is a mockery of law and order. I also recognize that some good can come of taking DNA samples from those who have been detained, as long as it’s applied across the board.

  25. 25
    jheartney says:

    Wag and Cassidy, the real problem here is that the DNA results then get entered into a database, where who knows what will be done with it. Will it get sold to a private interest? (Remember we’re busily privatizing law enforcement functions.) Or maybe the data will be stolen. Could prospective employers or insurance companies check you for genetic conditions? How about your relatives? Their being arrested could impact you (your shared DNA is now in the database) or you being arrested could impact them. What if the data is used to identify you in situations where your conduct is legal but private? Etc.

  26. 26
    Villago Delenda Est says:

    @Belafon (formerly anonevent):

    And the reason “probable cause” is in the constitution is to prevent the arrest of someone just to see what they might be guilty of.

    This, right here.

    As we all know, an indictment means you’re guilty of SOMETHING. Just ask Ed Meese!

  27. 27
    Cassidy says:

    @khead: My DNA has been on file since 1998. The Army likes being able to identify bodies.

  28. 28
    mistermix says:

    @cleek: I’m reacting to this:

    The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.

    Bold mine. That was the reasoning that the court used to justify the practice, and I assume that the reason that they used this peripheral justification, rather than the broader justification that “we might find some criminals” is that there was some constitutional problem with the broader justification. IANAL, but when they draw their decisions narrowly, they do it for a reason.

  29. 29
    👽 Martin says:

    @pharniel:

    I actually like his point that if we’re going to allow police to gather DNA at arrest we should discard the whole pretense and DNA swab every newborn just to get it over with and ensure equality of collection.

    And how is that different from fingerprinting now? In most states everyone with a drivers license has given a thumbprint. Lots of parents have their kids fingerprinted as well.

    Can anyone give actual examples of the fingerprint database being abused? Surely it’s extensive and entrenched enough with global databases that we should have clear if not widespread abuses by now.

  30. 30
    jheartney says:

    @Figs: DNA contains for more information than a fingerprint. See my comment above.

  31. 31
    kindness says:

    I wouldn’t object to a genetic sample being taken after someone is convicted. But taking one upon arrest is more Police State tactics.

    The Founding Fathers were seen looking to give their errant kids up for adoption since the pound wouldn’t take them.

  32. 32
    Just Some Fuckhead says:

    More importantly, the DNA fingerprint will go into a database that will be used to compare you as a possible suspect in every future crime. Are you a suspect in every future crime? Should you be?

  33. 33
    Forum Transmitted Disease says:

    My knee-jerk reaction is that if I agree with Scalia on anything, I should blow my fucking brains out.

    And I do agree with him on this, 100%, which causes me a lot of relief that I don’t tend to go with my first knee-jerk reactions.

  34. 34
    Figs says:

    @jheartney:

    Like Martin said just above you, do we have any examples of this happening with fingerprint databases?

  35. 35
    Belafon (formerly anonevent) says:

    @cleek: They fingerprint people to identify them, because no matter what you call yourself, your fingerprints don’t change. Then it was expanded to compare to crime scene evidence.

  36. 36
    Bruce S says:

    Akhil Amar of Yale Law School, who is consistently one of the best and most obviously brilliant legal scholars I’m aware of told Chris Hayes and Barry Scheck that actually Scalia and the majority were wrong based on the constitution and precedent. My inclination is to side with the majority, but I wouldn’t presume to argue this with Amar as a matter of law. Amar saw problems with the policy, but thought the ruling was flawed.

  37. 37
    Face says:

    Yes, I recognize that the wrongful treatment of minorities by the police is a mockery of law and order.

    Serious question — Can anyone name the last white guy wrongfully inprisoned for more than a few years that was exonerated via new DNA evidence? Seems like that while, yes, AA’s are more likely to be arrested and DNA sampled, they’re also the ones more likely to be wrongly jailed and thus more likely to be freed by new evidence.

  38. 38
    Cassidy says:

    @mistermix: If that’s the case, the fears and worries won’t amtter as the current ruling still keeps them from using that DNA to get you for other crimes.

    You know what it does do, though? MY BIL is a cop and for awhile he was a Homicide Detective. When he would interview a suspect, he would explain to them that “I have this much evidence to convict you”. He would then explain the the DA’s office is only going to charge them for three crimes anyway; that seemed to be the unofficial cap of cost vs. conviction. So, he’d then ask coax them to fess up to any crimes they had committed and get it all out. He’d clear a bunch of cases, the DA would file charges on the big ones and life goes on. Something like this gives investigators another tool to do that with.

  39. 39
    Berial says:

    @👽 Martin:

    Can anyone give actual examples of the fingerprint database being abused? Surely it’s extensive and entrenched enough with global databases that we should have clear if not widespread abuses by now.

    One of the major differences I can think of between fingerprints and DNA is what DNA can actually be used to tell people about you. Is the database open to anyone? Can a potential employer get your DNA and have it checked for ‘defects’ that might touch their bottom line(through raising their insurance or potential special needs?)

  40. 40
    maya says:

    ♫When we’re out together swabbing cheek to cheek♫

  41. 41
    Forum Transmitted Disease says:

    More importantly, the DNA fingerprint will go into a database that will be used to compare you as a possible suspect in every future crime. Are you a suspect in every future crime? Should you be?

    @Just Some Fuckhead: The ultimate fishing expedition. Every cop and prosecutor’s wet dream.

  42. 42
    Peter says:

    I really can’t see this as any different from fingerprinting. If fingerprinting arrestees is legal, I can’t argue that this shouldn’t be as well.

  43. 43
    👽 Martin says:

    @Belafon (formerly anonevent):

    There’s probable cause for one crime. The police want to use this to solve any crime that hasn’t been resolved. And the reason “probable cause” is in the constitution is to prevent the arrest of someone just to see what they might be guilty of.

    But you just said they had probable cause.

    These aren’t intended to be 1:1 thresholds. If you discover evidence while investigating some other crime, that doesn’t automatically disqualify it in some way.

    I think what is missing in this is the following qualifier:

    “It’s legal to collect a cheek swab from a person arrested for a crime only in the case where DNA evidence was collected from the crime scene to compare against.” Does that resolve everyone’s issues here? Think of rape cases, where there probably is no fingerprint evidence, but there is a rape kit. Probable causes is almost certainly hinging on eyewitness testimony, which is usually shit anyway. Now you can immediately tie the suspect to the event, and you can immediately determine if the suspect was responsible for other rapes.

    Why is everyone here so pro-rape? You know who else was pro-rape? Don’t be that guy.

  44. 44
    Just Some Fuckhead says:

    The pro side of this argument is “If you haven’t done anything wrong, you don’t have anything to worry about.” I’ve never liked this argument.

  45. 45
    Cassidy says:

    @Berial: Can a potential employer get your fingerprints from LEO’s?

    Seriously people? Our LEO’s are going to start just randomly and suddenly coughing up your DNA to the highest bidder? Do you all realize how much you sound like an Infowars fan or a Freeper?

    The ultimate fishing expedition. Every cop and prosecutor’s wet dream.

    This is a lot more likely. And yeah, they’re going to do that. They already do it with fingerprint databases and some DNA databases.

  46. 46
    cleek says:

    @mistermix:
    fingerprints can be used to identify the suspect in custody, too. photographs, too. height and weight measurements, too. voice recordings, too.

    and all that can be used to tie suspect to other crimes. and most of that can be gathered without the suspect even knowing – as opposed to a cheek swab, which most conscious people would notice.

  47. 47
    Villago Delenda Est says:

    There was (here I go…) and episode of “Law and Order” that touched on the fingerprint issue. If you have or had a security clearance, your fingerprints are on file somewhere in the vast federal database of fingerprints. The L&O guys dusted for fingerprints at a crime scene, lifted some, and ran it through the databases. Nothing in the NY criminal DB, but they got a hit on the federal DB…turned out that a guy who had been fingerprinted in the military owned the prints they lifted at the crime scene.

    Now, this on its face means very little, as you can’t link your presence at a location with the crime itself. You need something more direct, like fingerprints in the blood, or on murder weapon, or something. Just because my fingerprints are all over my computer keyboard, and the keyboard was used to brain my asshole boss, does not mean that I was the guy who used the keyboard to brain my asshole boss. But it’s a good starting place..

  48. 48
    👽 Martin says:

    @Berial:

    Is the database open to anyone? Can a potential employer get your DNA and have it checked for ‘defects’ that might touch their bottom line(through raising their insurance or potential special needs?)

    No. This specter has been raised for 20 years now and there’s no evidence it’s ever been abused either. Besides, employers are allowed to drug test you, so why the fuck would they bother law enforcement’s database when they can go directly at the issue? And the ‘bottom line’ issue is a non-issue. Employers aren’t the insurer, and group policies don’t scrutinize individuals. That’s why group policies work. That’s why Obamacare needed to create the exchanges. And employers would love to know if you’re about to die soon – they’ll take out a peasant policy on you and turn a profit off of your death.

  49. 49
    Omnes Omnibus says:

    @Peter: fingerprints and photos are external. A DNA swab is invasive. One could say the invasion is minimal, but it is present. In my view, an invasive procedure requires a higher threshold.

  50. 50
    Cassidy says:

    @Villago Delenda Est: So how did Horatio Caine solve this legal dilemna? Was it a season finale or a two parter? ;)

    Messin’ with ya.

  51. 51
    Villago Delenda Est says:

    @Cassidy:

    The problem is with the “privatization” of so many formerly government functions, and the Ferengi instincts of the privatizers, that they’ll sell the info to anyone who will pay, ethics and common sense be damned.

    I fear corporations doing this more than government, but if the government function is contracted out to a corporation, look out!

  52. 52
    Mnemosyne says:

    @jheartney:

    Will it get sold to a private interest? (Remember we’re busily privatizing law enforcement functions.) Or maybe the data will be stolen. Could prospective employers or insurance companies check you for genetic conditions? How about your relatives?

    Then outlaw doing that. Make it a crime to steal or sell someone’s genetic information.

    I mean, jaysus, have none of you people ever dealt with HIPAA? Pass a HIPAA-like law that applies to law enforcement personnel, and then enforce it.

  53. 53
    ericblair says:

    @jheartney:

    Wag and Cassidy, the real problem here is that the DNA results then get entered into a database, where who knows what will be done with it.

    This is the central privacy concern that I think we don’t address properly. My read after doing some data privacy work is that US law and regulation is much more concerned with limiting how you can get private data, and not really on what you can do with it, while EU law is the other way around. The US approach is based on a fundamental and partially justified distrust of how data is handled by governments and organizations, but relies on sticking fingers in a dike with a million holes in it and I don’t think is sustainable.

    Whatever you think of the SC decision, the idea that DNA is being collected primarily for ID purposes is laughable and makes the reasoning pretty much useless, IMO.

  54. 54
    different-church-lady says:

    @👽 Martin:

    Cheek swab is no more invasive than a fingerprint.

    You might want to look up the definition of the word “invasive”. Specifically. the root.

  55. 55
    Todd says:

    @pharniel:

    I actually like his point that if we’re going to allow police to gather DNA at arrest we should discard the whole pretense and DNA swab every newborn just to get it over with and ensure equality of collection.

    I’m OK with this. It will lead to certainty of paternity, certainty of people taking the correct baby home, and certainty of identity going forward.

    The alternative is to have a society where squealing teabirchers are OK with treating people of color like shit while granting a pass to white folk, something which has existed always in our recent past.

  56. 56
    Villago Delenda Est says:

    @Cassidy:

    It was all taken care of just prior to the final commercial break, as always, wrapped up in a bow!

  57. 57
    Cassidy says:

    @Villago Delenda Est: I don’t think that’s an unfounded fear, but tbh, I don’t see a huge push to privatize law enforcement. That’s a bridge we’ll have to cross some day, I’m sure, but right now the real benefits are more than the hypothetical negatives.

  58. 58
    Corner Stone says:

    There are people here seriously saying that a DNA marker is no different than a fingerprint?

  59. 59
    Bruce S says:

    @Bruce S:

    Sorry – correction – liberal legal scholar Amar was siding with the majority on Chris Hayes show and said Scalia and the MINORITY were wrong.

  60. 60
    👽 Martin says:

    @Cassidy:

    This is a lot more likely. And yeah, they’re going to do that. They already do it with fingerprint databases and some DNA databases.

    (BTW, I recognize you aren’t opposed to this.) But what’s the issue here? Why do citizens deserve the right to not be held accountable to their crimes, simply because police couldn’t draw a straight line from the case to you? This sounds like something the Brits would complain about – that it’s ‘not sporting’.

    Now, if someone can argue that in such a fishing trip they would hassle innocent people, then I would agree that’s a bad thing. But compared to photo lineups (which I’ve done) and even fingerprints which on very rare occasion lead to false positives (0.2% – or 2 people in 1000 are misidentified), DNA should reduce the number of such incidents, not expand them.

    DNA testing isn’t a fishing trip. Everything else is by comparison. DNA testing is hunting with a sniper rifle. It’ll eliminate a lot of innocent people being caught up in something. Or are we under the illusion that while one crime is being investigated, all other unsolved crimes are not. No, they’re still hauling in ‘large black men’ for questioning based on eyewitness testimony. Wouldn’t it be better to stop hassling everyone?

  61. 61
    different-church-lady says:

    @Cassidy:

    Our LEO’s are going to start just randomly and suddenly coughing up your DNA to the highest bidder?

    I would not doubt that within 10 years some municipality is going to propose it, due to “budget pressures.”

  62. 62
    Belafon (formerly anonevent) says:

    @👽 Martin: The argument is over whether collecting the DNA evidence can be used to just go compare to every other case and see if there is a match somewhere.

    If you are being arrested for rape, then yes, the DNA is a way to identify if you are the person who committed the act. If, on the other hand, you are arrested for running a traffic light (remember, the SCOTUS allowed police to arrest you for even misdemeanor offenses), can they then take your DNA to see if you have committed rape.

    And my answer would be that only if they think you might have been involved in the rape case, which is really how I think how fingerprints should be used.

  63. 63
    Cassidy says:

    @Corner Stone: Nope. We’re syaing the collection and storage in a database is no different.

  64. 64
    jheartney says:

    @Figs: So we have to wait till it happens and then try to put the genie back in the bottle? Great.

  65. 65
    mistermix says:

    @cleek: Here’s the logic of the dissent:

    The dissenting opinion, seeking to take apart every major aspect of the Kennedy opinion, argued that the DNA sampling procedure was really not designed as part of an identification of an arrested individual, but actually served to achieve only one end: turning up evidence of suspects to solve a prior crime having nothing to do with the offense for which the individual was arrested.

    The process of analyzing DNA takes so long, Justice Scalia wrote, that it really has no value in helping police fully identify a suspect that they have in custody for another crime.

    The dissent likened the procedure to a “general warrant,” in which police are allowed to search a suspect even if they have absolutely no evidence to justify suspicion of that person. While the Court has in the past allowed some police searches even if they have no suspicion that the individual involved has committed a crime, the Court has never done so when the police were seeking to gather evidence of crime, the dissenters said. For example, they noted, the Court has allowed urine samples of railroad workers involved in accidents, or of public school students engaging in school activities — but explicitly not to gather evidence to prosecute them for crime.

    http://www.scotusblog.com/2013.....de-easier/

  66. 66
    Corner Stone says:

    And lest we forget, the same thing about leaving DNA behind is true of what has been said about fingerprints.
    Just because my DNA exists in a location (potential crime scene) doesn’t mean I had been there at a relevant time.

  67. 67
    Villago Delenda Est says:

    @Cassidy:

    Privatized prisons dovetail nicely into law enforcement, as the final place where the “product” of law enforcement resides. So they’ll probably have access to DBs that law enforcement does.

    I saw a similar tendency in the telecom industry. Due to a flaw in the ILEC’s database of outside plant (that is, the wires to each and every home, business, or whatever out there) it was possible to find out who your competitors were servicing, and use that as a “warm call” list. It shouldn’t be used that way, but my child-of-Reagan brought up in sales supervisor IMMEDIATELY saw the potential for contacting parties serviced by specific competitors who were rumored to be having difficulties, and their customers might be looking for a new telco.

    Obviously, a great deal of detail to deal with in this.

  68. 68
    different-church-lady says:

    @Belafon (formerly anonevent): Right, the real question here is, “What are the boundaries of probable cause?” DNA swabs are just a mechanism.

    Seems to me it’s very similar to the drones issue: people get very het up about the drones themselves, and forget that people are going to get blowed up one way or another, and forget that’s the real issue.

  69. 69
    Cassidy says:

    @Belafon (formerly anonevent): But this already happens. If you run a red light and get pulled over, they pull your information from a database. Sometimes that tells you’re wanted for something.

  70. 70
    Corner Stone says:

    @Cassidy: The collection is clearly different and the database is stunningly, unimaginably different.

  71. 71
    👽 Martin says:

    @Omnes Omnibus: You can take a DNA from the surface of your skin. It’s more expensive and less accurate, but it’s no more invasive than fingerprinting. Permitting that but disallowing cheek swabs makes all outcomes worse.

  72. 72
    Tractarian says:

    But spare me the illogic of saying that cops are doing it to identify the person in custody… Cops gather DNA in hopes they can tie the person under arrest to another crime

    I don’t understand the difference.

    I also don’t understand the difference between collecting an arrested person’s fingerprints, and collecting that person’s DNA.

    Other than the fact that DNA is sciency and scary and Minority Reporty and FLYING ROBOTS OMGWTF.

  73. 73
    Tractarian says:

    @different-church-lady:

    Seems to me it’s very similar to the drones issue: people get very het up about the drones themselves, and forget that people are going to get blowed up one way or another, and forget that’s the real issue.

    Bingo.

  74. 74
    Bruce S says:

    Here’s the rationale from two liberals – FWIW

    http://www.nytimes.com/2013/06.....1&

  75. 75
    Joey Maloney says:

    DNA analysis is a more sophisticated activity than fingerprint analysis and is only as accurate as the analysts are competent (or honest). Google “crime lab scandal” and skim through some of the first couple pages of links.

  76. 76
    Roger Moore says:

    @aimai:

    I’m wondering why Scalia, who usually sides with the authorities against the rabble, is actually siding with the liberals on this one?

    Scalia may be generally in favor of state power, but he has a few personal bugaboos about criminal procedure where he’s surprisingly consistent in supporting the accused. For example, he is probably the strongest defender of forcing people to testify in person under the 6th Amendment’s confrontation clause.

  77. 77
    Villago Delenda Est says:

    @different-church-lady:

    Seems to me it’s very similar to the drones issue: people get very het up about the drones themselves, and forget that people are going to get blowed up one way or another, and forget that’s the real issue.

    Yup, agree completely. Some people (infowars fucktards, I’m looking at you, assholes) who are so worried about drones have no problem with far more “collateral damage” dealing mechanisms for dealing with “terrorists”. You know, like invading fucking Iraq.

  78. 78
    👽 Martin says:

    @Belafon (formerly anonevent):

    If, on the other hand, you are arrested for running a traffic light (remember, the SCOTUS allowed police to arrest you for even misdemeanor offenses), can they then take your DNA to see if you have committed rape.

    You’re conflating two things.

    1) Yes, police can arrest you for misdemeanors
    2) The recent case only applies to felonies, so they cannot take DNA for misdemeanors.

  79. 79
    SatanicPanic says:

    @Just Some Fuckhead:

    Are you a suspect in every future crime?

    Err, yes? No? I don’t know, this question is too meta for me.

  80. 80
    replicnt6 says:

    @👽 Martin:

    “It’s legal to collect a cheek swab from a person arrested for a crime only in the case where DNA evidence was collected from the crime scene to compare against.”

    Missing from what, the decision, or our discussion? I can’t see any such qualification mentioned in the nytimes article.

  81. 81
    jheartney says:

    @Mnemosyne:

    Then outlaw doing that. Make it a crime to steal or sell someone’s genetic information.
    I mean, jaysus, have none of you people ever dealt with HIPAA? Pass a HIPAA-like law that applies to law enforcement personnel, and then enforce it.

    Yeah, in the current political gridlock, I’m sure they’re going to get right on that. Meanwhile we’ve left the door wide open.

  82. 82
    👽 Martin says:

    @Corner Stone:

    And lest we forget, the same thing about leaving DNA behind is true of what has been said about fingerprints.
    Just because my DNA exists in a location (potential crime scene) doesn’t mean I had been there at a relevant time.

    So we should just convict you because you looked like the guy who did it? You’re throwing out tools that only serve to exclude people from false prosecution, on the argument that you might be falsely prosecuted. You need to rethink this.

  83. 83
    Corner Stone says:

    @👽 Martin: Are we going on the illusion that evidence of DNA is evidence of guilt? Or even relevant linking in some type cases?

  84. 84
    Shakezula says:

    @Cassidy: To the state? Never.

  85. 85
    👽 Martin says:

    @aimai:

    I’m wondering why Scalia, who usually sides with the authorities against the rabble, is actually siding with the liberals on this one?

    I’m now going on the theory that he wants to protect rapists. I’m further going to assume that he is therefore a rapist himself. That judgement doesn’t apply to the liberals that shared in the dissent because I don’t want it to.

  86. 86
    Shakezula says:

    @Mnemosyne: GINA already covers discrimination based on genetic evidence.

    To be fair, I don’t think most people have dealt with HIPAA, other than to sign that form they get at the doctor’s.

  87. 87
    belieber says:

    yawn….if you asked him if he thought it would be ok for the police to collect DNA samples from women who have had abortions I’m sure he would be all for it. That’s all you need to know about asshole Scalia.

  88. 88
    Roger Moore says:

    @Todd:

    I’m OK with this. It will lead to certainty of paternity, certainty of people taking the correct baby home, and certainty of identity going forward.

    There are some other interesting applications, too. For example, it would give you a really complete database to use for HLA typing for hematopoetic cell (i.e. bone marrow) transplants. Right now, they depend on volunteers and voluntary funding for the database. If we were typing everyone anyway, you’d be much more likely to find a match, though not necessarily any more likely to find a willing donor.

  89. 89
    Corner Stone says:

    @👽 Martin: I don’t believe I am doing that. DNA is a tool, as you comment, and can be used in whatever way the individual with that tool chooses.
    DNA evidence doesn’t put a halo on the process or outcome.

  90. 90
    Belafon (formerly anonevent) says:

    @👽 Martin: Really, you’re going to get hung up on misdemeanor versus felony? Fine, a person gets arrested for bank robbery, and they take his DNA to see if he’s committed any rapes.

    More importantly, a few years ago, SCOTUS made it so that the police can require you to show an ID. Remember how we got there?
    1. First there was the case where the SCOTUS ruled that the police could ask you your name.
    2. Then there was the case that ruled that since they were allowed to ask you your name, you had to give them your correct name.
    3. Then there was the final case that said since you had to give them your correct name, it wasn’t a burden to require that you show an ID.

    So, tell me again, how long do you think it will be before they collect them on a misdemeanor?

    That’s why I think it has to be for probably cause on the case they want to test your DNA for.

  91. 91
    Cassidy says:

    @Villago Delenda Est: That leaves out some very important considerations, though. privatizing prisons is a cost cutting measure, a lot of Sheriff’s Dept’s still run their own prison. Secondly, LEO’s tend to look down on prison guards; to them, anyone can do that job. They’re not going to jump through their ass to share or relinquish responsibility to “those guys”.

  92. 92
    Peter says:

    @Omnes Omnibus: Relative to the degree of invasion, surely? Because I think you’ll find that a lot of people will agree that calling a cheek swab invasive only holds up as a matter of semantics.

  93. 93
    Wag says:

    @jheartney:

    Point taken. So we need to make damn sure there are proper safeguards in place. This doesn’t mean the technology shouldn’t be used.

  94. 94
    Corner Stone says:

    I’m not sure what to tell people who don’t believe, or don’t care, that this leads to inexorable “mission creep”.
    This is nothing like the limitations of fingerprints.

  95. 95
    👽 Martin says:

    @replicnt6: From our discussion. It seems to me that if there was no DNA collected from the crime, that it’s impossible to use DNA for identification in that crime. And that the only purpose then is to link the person to other crimes. That may not be in and of itself bad, but if that’s the only motive then why not just mandate everyone have their DNA on file as Scalia notes and be done with it.

    But in the case of the primary evidence being eyewitness and a rape kit but no fingerprints, photos, or other evidence (which is hardly uncommon), are we really arguing that we shouldn’t collect DNA from the individual accused via eyewitness? Honestly, that’s just fucking stupid.

  96. 96
    Ecks says:

    @Face: It’s a Canadian case, but Guy Paul Morin spent a LOT of years in jail for a crime he didn’t do. He wasn’t black, but he was quiet and a bit awkward, and happened to be in the wrong place at the wrong time, and that gave the police enough weird vibes to gin the evidence the way they knew it really pointed.

    You did ask.

  97. 97
    Belafon (formerly anonevent) says:

    @👽 Martin: He must also be a pot grower, because he’s argued against thermal imaging scanners being used on houses and drug sniffing dogs being used on porches without probable cause.

  98. 98
    Just Some Fuckhead says:

    @Corner Stone: Yer rapin and gettin away with it days are over. Now you will know what it’s like to be black in America.

    Did I sum up the main two arguments for invasive cavity search?

  99. 99
  100. 100
    Higgs Boson's Mate says:

    Y’all are so cute with your arguments back and forth on this one. If I’d been someone who’d in the past spent (hypothetically) some years planning and committing Class C felonies I would advise you to relax your sphincters. The advance of data over privacy is relentless and if you haven’t considered that someone is working on an algorithm that will predict criminal intent from your ATM card swipes then you’re dreaming.

  101. 101
    someguy says:

    When anybody is swabbed by the cops, the FBI keeps their DNA information in the CODIS database. They keep it there forever, unless the swabee gets a court order dropping the charges or showing that any subsequent conviction was overturned. The FBI also collects DNA from other sources, like the military. Presumably, the national online health records will eventually be a rich source of new DNA records (and solved crimes) for the FBI. The last time FBI Director Mueller spoke about it, the agency had roughly 50 million citizens’ DNA on file. His goal was to get everybody’s DNA into the database, he said at that time (~2007 IIRC).

    The Court just established a precedent that the cops don’t need suspicion to swab you for DNA, they can do it as part of a warrantless, suspicionless “administrative search.” You know, like a DUI checkpoint, an airport screening, or prior to taking a federal job or getting federal benefits.

    But don’t worry. You only have something to fear if you’re guilty, right?

  102. 102
    replicnt6 says:

    We’re comparing DNA swabbing to fingerprinting, but I remain unclear: is this decision supporting routine DNA swabbing of arrestees (the way fingerprinting has been routinized), or only of arrestees arrested for crimes for which there is DNA evidence to compare to?

    The nytimes article states:

    But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute.

    Which would suggest that either a) this decision is only supporting DNA swabbings of arrestees arrested for crimes for which there is DNA evidence to compare to, or b) DNA swabbing is not being regarded as a search.

    For those of you who are asking “what’s the difference between DNA and fingerprints,” here are two important differences: fingerprints tell you nothing about a person. DNA tells you an ever-increasing shitload about a person. Fingerprints can’t identify family members. DNA can.

    I would also caution against CSI: Balloon Juice faith in DNA evidence to convict. The statistics used to draw a match are non-trivial. We aren’t at the point (yet) of using full DNA sequencing to match DNA. Instead we look for DNA markers. The prosecution will state the probability of a match (assuming there is one) as the probability of a random person matching. But the DNA match is apt to be correlated with other attributes of the suspect: race, appearance, etc. Fingerprints lack this correlation.

  103. 103
    Peter says:

    @Corner Stone: Well, you could begin by forming an argument that isn’t just a restatement of your thesis with condescension dripped over it.

  104. 104
    rikyrah says:

    BREYER WAS WRONG

  105. 105
    Just Some Fuckhead says:

    Martin, what would be wrong with a law requiring everyone to register their DNA with the federal government?

  106. 106
    Cassidy says:

    @someguy:

    You know, like a DUI checkpoint, an airport screening, or prior to taking a federal job or getting federal benefits.

    I can see the DUI checkpoints. I wouldn’t be surprised. The TSA doesn’t want your DNA. Civil Service jobs don’t want your DNA and getting federal benefits has nothing to dow ith it. If you work for the gov’t, your benefits are laid out pretty plainly and we have a union.

  107. 107
    👽 Martin says:

    @Belafon (formerly anonevent): I’m okay with Scalia being a drug dealer as well. Probably makes his own roofies to support his rape addiction.

  108. 108
    Roger Moore says:

    @👽 Martin:
    I think there are several separate issues that are getting kind of mashed together:

    1) Potential misuse of DNA databases for things other than solving crimes

    2) Inability to remove people from the database if they’ve been wrongly accused

    3) Temptation for the police to engage in pretext arrests for the purpose of collecting DNA evidence

    #3 is the one people are comparing to a fishing expedition. DNA may be incredibly precise in making IDs, but as long as we collect it only when people are arrested, the database is going to be scattershot and full of holes. When the police know they have DNA evidence, they’ll be incredibly tempted to round up and arrest everyone they can think of in order to get them into the database. Once they’re in, they’ll have an arrest record and be subject to increased scrutiny in future crimes.

    And it’s important to remember that DNA may have a low false positive rate, but it does generate some false positives. The tiny chance of a false positive in any individual match turns into a near certainty of false positives when you start mining a DNA database for hits. If the chance for a false positive is one in a billion, you wind up with a ~1% chance of a false positive when searching a database of 10 million people. If you’re trying to solve thousands of crimes a year, that means false positives are all but inevitable.

  109. 109
    jrg says:

    This whole thread reminds me of the time I was at a neighborhood watch meeting, and someone told the cop present that the local ne’er-do-well, “BJ” stole some car parts out of his yard. The cop asked the neighbor if he could provide a description of the suspect…

    The neighbor looked at the cop like he was an idiot, and said: “BJ. He looked like BJ.”

    It’s hard for me to understand the privacy concerns here. So DNA can be used to identify you… Big deal. So can your face.

  110. 110
    Mnemosyne says:

    @jheartney:

    Yeah, in the current political gridlock, I’m sure they’re going to get right on that. Meanwhile we’ve left the door wide open.

    Except that, as Shakezula pointed out, there’s already a law in place that bans genetic information from being used by employers and health insurance companies. So your fear of the information being used that way … doesn’t exist, because it’s already illegal to do it.

    Now what?

  111. 111
    raven says:

    Note, do not spill a large cup of java into your macbook pro. That is all.

  112. 112
    Omnes Omnibus says:

    @Peter: Something is either invasive or it isn’t.

    If I am arrested for bank robbery, why should I be effectively treated as a suspect in an unrelated mused case? Why not pull you off the street and swab you too?

  113. 113
    catclub says:

    Another problem is the motivations of the police for their actions.
    Miranda warnings de-motivated coerced confessions.
    This will motivate random arrests to get cheek swabs.

    Stop and frisk was bad, this can make it worse.

    Drug forfeiture laws motivated arrests in order to pay police department bills.

  114. 114
    👽 Martin says:

    @replicnt6:

    We’re comparing DNA swabbing to fingerprinting, but I remain unclear: is this decision supporting routine DNA swabbing of arrestees (the way fingerprinting has been routinized), or only of arrestees arrested for crimes for which there is DNA evidence to compare to?

    That’s the basis of my comment @ 95.

    The court ruled you can swab those arrested for a felony. Not just those suspected, not misdemeanors. That said, there are lots of felony cases with no DNA evidence, so the identification argument falls flat there. That seems like a qualifier that the court should have added, but appears to have not done so. Had that qualifier been added, this seems like a slam-dunk good decision to me. Without it, I can go either way.

  115. 115
    replicnt6 says:

    @👽 Martin: And I think if we limit DNA collection to cases where there is probable cause to believe that the arrestee is responsable for a crime for which there is DNA evidence, I think more people here will agree with that use. But it’s not at all clear that this decision has that limit, and routine DNA collection from arrestees seems troubling to many of us.

  116. 116
    Cassidy says:

    @Peter: @Omnes Omnibus: Medically, it’s invasive.

  117. 117
    Belafon (formerly anonevent) says:

    The truth is, I actually wouldn’t be against a DNA database. But as a society, it’s going to take something major, like someone crossing over from a parallel universe and wrecking ours, that would allow society to think that making the DNA database would be a good thing. Until then, though, it’s the process of creating said database that is wrong. It’s not, “please come down and add your data to a database,” or “at birth, everyone will have their DNA added to the database.” It’s “let’s find people we think are suspicious and arrest them so that we can add them to the database.” Arrest is a horrendous thing to do to innocent people. It will scar them. And, in our society, suspicious tends to mean “not white.”

    You could probably persuade me that once you have someone’s DNA, it can be used to connect the person to other crimes. But that’s not a reason for allowing the DNA collection in the first place. There has to be probable cause that the DNA can be used for identification.

  118. 118
    Cassidy says:

    @replicnt6: But again, it’s already been said that probable cause can be manufactured, so what’s the difference in “let me see if his/her DNA pops up connected to other crimes” and “he lived here from 06-08, so I think he/she may be connected to some of these crimes”?

  119. 119
    Mnemosyne says:

    @someguy:

    The Court just established a precedent that the cops don’t need suspicion to swab you for DNA, they can do it as part of a warrantless, suspicionless “administrative search.” You know, like a DUI checkpoint, an airport screening, or prior to taking a federal job or getting federal benefits fingerprinting.

    I was unaware that being under arrest was exactly the same thing as an airport screening. You learn something new every day around here, I guess.

  120. 120
    someguy says:

    @replicnt6:

    We’re comparing DNA swabbing to fingerprinting, but I remain unclear: is this decision supporting routine DNA swabbing of arrestees (the way fingerprinting has been routinized), or only of arrestees arrested for crimes for which there is DNA evidence to compare to?

    The problem is (as in most incoherent Kennedy opinions) that he and the majority decided to define this as a perfectly appropriate warrantless, suspicionless search – when in fact it was a search incident to arrest. The incoherence comes in when Kennedy talks about how a DNA swab in conjuction with a lawful arrest for a “serious crime” is permissible.

    Well, is it an administrative search (which doesn’t require probable cause or investigative suspicion) or is it a search of the body incident to arrest (which requires probable cause, and for invasive searches beyond “officer safety” searches, a warrant)?

    Scalia points this out and amid the seething one gets the sense he wants to say, “can’t have your cake and eat it too, f***er!” What that boils down to is a huge amount of mission creep that law enforcement agencies are likely to try to take advantage of as forensic caliber DNA testing gets quicker and cheaper – they’ll just pass off mass swabbings as “administrative searches.” And the FBI quietly sits in the background and gets the search proceeds, hanging onto them, you know, just in case one of the currently innocent people happens to be linked to a crime scene at some point in the future. Going to have to read Greenwald on this one, once he stops screaming and settles down to write something about it…

  121. 121
    Roger Moore says:

    @👽 Martin:

    The court ruled you can swab those arrested for a felony. Not just those suspected, not misdemeanors.

    But that’s incoherent with their justification for taking the sample, which is identification. There’s no reason we need a stronger degree of identification for people arrested for a felony than for people arrested for a misdemeanor. The argument for taking the DNA is an obvious pretext for getting around the 4th Amendment and should be recognized as such.

  122. 122
    catclub says:

    @Ecks: There was also the guy in Oregon whose fingerprints matched those of suspects in the Spanish car bombings of 2007. Fingerprints are not foolproof AND have never been scientifically proven to be so. Different examiners get different results, too.

  123. 123
    👽 Martin says:

    @Just Some Fuckhead:

    Martin, what would be wrong with a law requiring everyone to register their DNA with the federal government?

    Well, for the record, I think it’s inevitable. We’re already a lot closer than people think.

    But the standard now is to require *some* people do that (think of the mandatory drug testing laws for public assistance and things like that). I’d rather a uniform standard than a discriminatory one and I think the GOP in their efforts to continue to treat all poor people and minorities as criminals will force us to require it of everyone.

    Put another way, all of our insurance companies have our DNA and we’re okay with the legal structure to protect us from that. Why do we think that government would be more abusive of that information under the same legal structure than some for-profit insurer?

  124. 124
    Cacti says:

    Now that the SCOTUS has opened the gate for allowing broad law enforcement collection of DNA, expect employers, and various public agencies to follow suit.

  125. 125

    @Corner Stone: Yes, but a lot of people may not know that it isn’t damning evidence and may accept a plea under pressure from LEOs to avoid having prosecutors throw every charge imaginable at them in a jury trial.

  126. 126
    replicnt6 says:

    @Cassidy: Probable cause for some crime can generally be manufactured to justify an arrest, but we’re talking about probable cause for a specific crime for which there is DNA evidence. That’s the difference.

  127. 127
    Mnemosyne says:

    @Belafon (formerly anonevent):

    You could probably persuade me that once you have someone’s DNA, it can be used to connect the person to other crimes.

    It can also be used to exclude the person from other crimes and free them.

    Look, let’s face it: 99 percent of the time, this kind of DNA evidence is only going to be useful in rape or sexual assault cases, because those are the vast majority of the cases where the perpetrator is likely to have left DNA evidence behind. There have been many, many cases where falsely accused men have spent years or decades in jail until they were finally able to get a court to allow them to undergo a DNA test and prove their innocence. Doing this kind of initial analysis at the arrest stage would help prevent those cases from even going to trial.

  128. 128
    Cacti says:

    @👽 Martin:

    I’d rather a uniform standard than a discriminatory one and I think the GOP in their efforts to continue to treat all poor people and minorities as criminals will force us to require it of everyone.

    I’m sure Congress will subject themselves to peeing in a cup or giving up a cheek swab for their FEHB benefits any day now.

  129. 129
    AHH onna Droid says:

    @Cassidy: yeah, and peeing in the cup was bullshit too. Dehumanizing. Im in transportation so hard to argue it’s not necessary to random test but why does walmart do this other than to defeat you before you even ger started

  130. 130
    Mnemosyne says:

    @Cacti:

    Now that the SCOTUS has opened the gate for allowing broad law enforcement collection of DNA, expect employers, and various public agencies to follow suit.

    See my link at #110 — it’s been illegal for them to do that since at least 2008.

  131. 131
    replicnt6 says:

    @👽 Martin:

    Put another way, all of our insurance companies have our DNA

    Wait, what?!

  132. 132
    Peter says:

    @Omnes Omnibus:

    If defending your position requires you to argue that there is no meaningful distinction between a cheek swab and a cavity search, but that there is between a cheek swab and a fingerprinting, you might not have a winning position.

  133. 133
    Cacti says:

    @Mnemosyne:

    it’s been illegal for them to do that since at least 2008.

    It used to be illegal for corporations to spend unlimited cash on electioneering, until 5 SCOTUS members decided to shit can a century worth of laws to that effect.

  134. 134
    Cassidy says:

    @AHH onna Droid: Because if you’re high/ intoxicated and you wreck something in one of their vehicles, you’ve made them liable for legal action.

  135. 135
    Cassidy says:

    @Peter: Again, medically, there is no distinction. It’s a degree of digits.

  136. 136
    Peter says:

    @Cassidy: And that matters on any level other than semantics how?

  137. 137
    Chet says:

    It’s worth pointing out that the DNA markers they store in the Federal database are all microsatellite regions in non-coding DNA; so what the database stores and compares against can’t tell anybody anything about your health, genetic conditions, etc. The buccal swab and extracted DNA itself – the physical sample – could be subsequently sequenced, but that’s still pretty expensive and therefore not done by crime labs.

    These markers are purely identifying, at most you can determine if two people are related to each other (or two samples are from the same person) but you can’t determine any physical characteristics as a result except, perhaps, statistically (“this RFLP marker is highly associated with persons of asian descent.”)

  138. 138
    Omnes Omnibus says:

    @Peter: I am applying the same standard that is used in rape. Any penetration is sufficient. In my view, if you want DNA, get a warrant.

  139. 139
    Belafon (formerly anonevent) says:

    @Mnemosyne: But that’s not against my argument. I didn’t say you couldn’t take DNA, you can only request the DNA in cases where the person is suspected of committing a crime that would require DNA evidence. If they are suspected of committing rape, then use the DNA evidence.

    What you’re arguing though, is an after the fact check, where the person convicted of the crime is asking for his DNA evidence to be used. It’s similar in that we’re both asking to limit law enforcement’s power, only in the cases you’re bringing up relate to prosecutors being able to reject rehearing a case based on new evidence. There was a case recently where, when the DNA evidence showed that the person did not match, the prosecutor argued that the DNA didn’t mean anything, the person was still guilty.

    I do believe that DNA evidence will clear a lot of cases that 30 years ago would have resulted in arresting the wrong person – I live near Dallas, the reigning city for convicting innocent people. It’s not the DNA, it’s the method of obtaining it that’s the issue

  140. 140
    JVader says:

    @Forum Transmitted Disease:

    Not only will the Police use it to look to clear past cases and someones relatives that might be a close match. Just wait until your employer get hold of it and does some digging around to see if your gene pool sucks and you are likely to get diabetes, heart disease, breast cancer, etc.

    There was a thread on here a week or two ago about Big Brother collecting our e-mail and other internet communications (including voice)… DNA would be just like that. Gattica!

  141. 141
    Cassidy says:

    @Peter: Well, it’s not semantics. It may be your opinion that sticking something into an oral cavity is not invasive, but then I’d have to kindly go ask you to ask your significant other that question and get back to me. I’ll wait.

  142. 142
    AHH onna Droid says:

    @jrg: The problem with eye witnesses and the medieval English legal system in general is that humans are much, much better at identifying people they see every day than recalling the identifying details of a complete stranger.

  143. 143
    NCSteve says:

    It’s kind of sad how people have come to expect such a high degree of politicization from the Supremes, they are perplexed when the Court actually acts like it understands that courts decide what government is allowed to do, and what government ought to do is up to the legislature.

    Breyer says there’s nothing in the Constitution that makes taking DNA different from taking fingerprints or photos at booking. Scalia basically says the government shouldn’t even be allowed to keep fingerprints and photos.

    The lineup on this one is a glimpse of a magic bygone day when the Court worked the way it was supposed to.

  144. 144
    👽 Martin says:

    @Roger Moore:

    And it’s important to remember that DNA may have a low false positive rate, but it does generate some false positives. The tiny chance of a false positive in any individual match turns into a near certainty of false positives when you start mining a DNA database for hits. If the chance for a false positive is one in a billion, you wind up with a ~1% chance of a false positive when searching a database of 10 million people. If you’re trying to solve thousands of crimes a year, that means false positives are all but inevitable.

    But fingerprints have a higher false positive rate – 2 in 1000. So, we’re already dealing with something much worse than that. Combine the two and your false positive rate will be effectively zero. There’s simply no way that this makes the false positive rate worse – and false positives are the issue that people ought to be most worried about.

  145. 145
    Mnemosyne says:

    @Cacti:

    It used to be illegal for corporations to spend unlimited cash on electioneering, until 5 SCOTUS members decided to shit can a century worth of laws to that effect.

    So we’re supposed to freak out now about something that might happen 20 years from now if the right case comes along and the Supreme Court seated at the time is inclined to be assholes?

  146. 146
    Keith G says:

    @mistermix:

    Read some of James Fallows’ latest postings about small pilots being detained and dogs “triggering” (probable cause) before you buy the notion that arrest means probable cause. Cops are really good at manufacturing probable cause.

    (Emp mine)
    Cops and DAs are really good at building cases that are not there. And while every process is open to abuse, I think in the long run DNA collection will be more helpful to the poor and the non white. A lack of DNA evidence often will lead to a battle of lawyers. Guess who wins.

    Wide spread DNA collection and matching, if used to its best potential, will derail many “cases of convenience” that now are brought against the powerless.

    I think that is why Scalia opposes it.

    Why do you?

  147. 147
    AHH onna Droid says:

    And some people can’t identify people they work beside daily. We all have stories… Women called by the wrong name when hairdo changes, men igcognito with new glasses, minority ethnic group gets called out their name first day on the job.

  148. 148
    Mnemosyne says:

    @JVader:

    Just wait until your employer get hold of it and does some digging around to see if your gene pool sucks and you are likely to get diabetes, heart disease, breast cancer, etc.

    FFS — IT IS CURRENTLY ILLEGAL FOR YOUR EMPLOYER TO DO THAT!! Yes, even before yesterday’s decision. Nothing about yesterday’s decision changed GINA.

    Will people please fucking pay attention before posting?! Everyone is freaking out about employers and insurance companies doing something in the future that is CURRENTLY ILLEGAL FOR THEM TO DO. Current laws will need to be CHANGED before they can do that.

  149. 149
    estamm says:

    Given the expense of doing a DNA test (at LEAST $100 per, probably a lot more), I seriously doubt that the typical protester getting booked for trespass or something is going to have a DNA test done. Given how most police departments are hurting for funds, I doubt that the average misdemeanor will result in a DNA test. And jeez, if someone has a DNA test done and they find that the person’s DNA showed up in a rape kit elsewhere, then book-em Dan-O.

  150. 150
    estamm says:

    @Keith G: I think you are on to something here. I couldn’t figure why he’d be against it, but that is probably his demented thinking.

  151. 151
    Chet says:

    @JVader: You can’t determine that information from what they’re putting in and getting from CODIS. They don’t actually sequence your DNA; they genotype it by restriction polymorphism. The markers they’re looking for are in non-coding DNA and have no informational relevance to your health aside from statistical associations to race and sex that your employer will already be able to make just by looking at your face and a set of actuarial tables.

  152. 152
    Tonal (visible) Crow says:

    Another day, another portion of our privacy gone, another lecture on why it doesn’t matter from the totalitarians.

    On the positive side, time for another donation to the ACLU.

  153. 153
    Seanly says:

    WTF? I’m in agreement with Scalia? Time for me to mail back in my ACLU & commie membership cards!

    I like that we’re getting closer & closer to the Constitutional rights-abusing law enforcement as shown on all of the various TV shows. Back in the late 80’s there was a great article in The Atlantic (IIRC) about the routine abuse of rights in cop TV shows & movies – no link available as I read it many, many years ago. I think media representation of the rights of the accused has only gotten worse.

    For the record, I think DNA should only be obtained after a warrant. Maybe after a convitcion of a felony. Just wiley-niley collection of DNA is too far.

  154. 154
    Cacti says:

    @Mnemosyne:

    So we’re supposed to freak out now about something that might happen 20 years from now if the right case comes along and the Supreme Court seated at the time is inclined to be assholes?

    Who said anything about freaking out? I just said that administrative creep of DNA collection will almost surely follow this decision. You said it’s been illegal since 2008, and I pointed out that other things that were illegal for a much longer time were wholly disregarded by a voting majority of the SCOTUS.

    And given that the Roberts Court is the biggest handmaiden for big business since the Melville Fuller Court, I don’t have much confidence that they would be a bulwark for individual privacy rights vs. the convenience of our corporate citizens.

  155. 155
    Roger Moore says:

    @Chet:

    The buccal swab and extracted DNA itself – the physical sample – could be subsequently sequenced, but that’s still pretty expensive and therefore not done by crime labs.

    It probably ought to be tossed after the testing, if only because of the expense of long-term storage. If there’s any question about an ID provided by the DNA database, it should be possible to do more extensive testing. After all, you presumably have a suspect and a crime scene sample, which should give you all the material you need for any more detailed test you want.

    That’s what they do for bone marrow transplants, at least. People who go into the donor database are only typed at the most important loci, which is good enough for a primary match. When anyone in the database is matched as a possible donor, they are brought back for confirmatory typing, where they can test everything they think might be relevant. That kind of two stage match seems like a better approach than trying to get everything into the database you might possibly need.

  156. 156
    shortstop says:

    @Just Some Fuckhead:

    Are you a suspect in every future crime? Should you be?

    You and your trick questions!

  157. 157
    Mnemosyne says:

    @Cacti:

    I just said that administrative creep of DNA collection will almost surely follow this decision. You said it’s been illegal since 2008, and I pointed out that other things that were illegal for a much longer time were wholly disregarded by a voting majority of the SCOTUS.

    I’ll put it another way — it is currently against the law for health insurance companies to use genetic information to discriminate against you. So you’re picturing, say, the FBI deliberately breaking an existing law that they are already complying with so they can sell your information to a health insurance company that is also currently barred by law from using that information? Not only that, but the health insurance company would go to all of that trouble to obtain information that they’re not allowed to use in order to set your rate or cancel your insurance, because both of those uses are currently banned by PPACA? So you’re picturing the Supremes knocking over both GINA and PPACA (and probably HIPAA along with them)?

    That’s quite the conspiracy theory you’ve cooked up.

  158. 158
    Mnemosyne says:

    @Seanly:

    Maybe after a convitcion of a felony.

    My worry about only collecting it after conviction is that we have a LOT of court cases where someone who was convicted of a rape or murder was able to obtain DNA testing post-conviction and the prosecution refused to accept the results and fought releasing the convicted man for years afterwards.

    If you’re going to insist on an escalation beyond mere arrest, it should be part of the pre-trial process, because it’s a lot easier to stop the train before it starts.

  159. 159
    Omnes Omnibus says:

    @Seanly: Exactly, no one is arguing against the use of DNA evidence. It can be valuable for both prosecution and defense. I am not unfavorable of it being gathered bu the state without a warrant. If the prosecution has probable cause, they can present it to a judge. If that makes it hard for the prosecution, so what? Putting people in jail is supposed to be hard.

  160. 160
    Paul in KY says:

    @aimai: I’m sure he had some nefarious reason. I would say he already knew there were 5 for it & switched over for some reason that will become apparent later on.

  161. 161
    Paul in KY says:

    @Belafon (formerly anonevent): Was he in the majority on those decisions and if so were thay 5-4 decisions?

  162. 162
    Paul in KY says:

    @Punchy: I thought Andy Dufresne was the guy who ‘fixed’ the brakes on his wife’s car & then she picked up another person & they both died in wreck.

    If so, he should have been in prison. I would have sent him to the gallows for that.

  163. 163
    Cacti says:

    @Mnemosyne:

    I’ll put it another way — it is currently against the law for health insurance companies to use genetic information to discriminate against you. So you’re picturing, say, the FBI deliberately breaking an existing law that they are already complying with so they can sell your information to a health insurance company that is also currently barred by law from using that information?

    You’ve quite the gift for conjuring up straw men.

    I see more of a situation where Jan Brewer decides that AZ welfare applicants have to go for a swab at XYZ Labs to prove you’re not an illegal alien, or your prospective employer decides they want one to go along with your pee in a cup.

    You say there’s a law against, I say, so what? States and large business interests have ample resources to litigate the question of whether the federal statute violates their sovereignty, or right to something something.

  164. 164
    celticdragonchick says:

    Another perspective on DNA and law enforcement..

    Interstate 20 starts on the west side of Texas and runs east to the Atlantic ocean, passing through Dallas along the way. The highway has lots of truck stops, some of which are known sites of prostitution, serial murders, or both. About once a month, always on a Wednesday, Dallas police show up at one of these spots for an unusual sting operation.

    The cops round up the prostitutes, usually about a dozen of them, and bring them to an area set up with food, clothes, STD testing, and legal counsel. “They walk them over and say, ‘You would be going to jail if it was Tuesday. But it’s your lucky Wednesday’,” says Sara Katsanis, an associate in research at Duke University’s Institute for Genome Sciences and Policy. The police give them two options: either go to jail, or start a 14-day rehabilitation program known as the Prostitute Diversion Initiative, or PDI. So far hundreds of prostitutes have chosen the latter.

    PDI participants may voluntarily submit a saliva sample for future DNA testing. The police will test the sample only if it’s relevant to some future crime — most likely, for a post-mortem identification. In other words, the only way the prostitute’s DNA donation can help her is if she turns up dead.

    “Prostitutes are quite often, in Texas, victims of homicide, and quite often they don’t carry ID. So the police end up with a crime scene, a victim, and the inability to connect the dots,” Katsanis says. But there may be other beneficial uses for those saliva samples, she says.

    Some of the Texas prostitutes, for example, may have been sold into the sex trade as children. Imagine a world in which secure, international databases could match genetic profiles of missing children or human trafficking victims — prostitutes, illegally adopted children, even child soldiers — with profiles submitted by their family members.
    ….

    A lot of issues swirling around DNA boil down to trust, don’t they? You might trust a consumer genetics company to keep your DNA information secure, for example, or you might trust a medical center to store your baby’s umbilical cord blood. But do you trust the government with your DNA?

    I asked Katsanis whether she would ever contribute a DNA sample to a U.S. government database. She replied with a swift and certain, “No,” and then told me a story about the day she gave a lecture on DNA to some police officers in Greensboro, North Carolina.

    “After I lectured to them, I said, ‘What do you guys think of a universal database? Should we just put everybody in it?’,” she recalls. “They said, ‘You mean me, too?’ and I said, ‘Yeah, you too.’ And they said, ‘Oh no, not at all, not ever. I don’t trust the police. I don’t trust us to not misuse that DNA’.

  165. 165
    Omnes Omnibus says:

    @Omnes Omnibus: Edit is not working on the mobile site.

    As far as Scalia goes, he is better on cases limiting police powers than most of the other conservatives. Specifically, he has been on the liberal side in several Fourth and Sixth Amendment cases. Doesn’t mean he isn’t a fascist asshole; it just means he is a fascist asshole with quirks.

  166. 166
    Roger Moore says:

    @estamm:

    Given the expense of doing a DNA test (at LEAST $100 per, probably a lot more), I seriously doubt that the typical protester getting booked for trespass or something is going to have a DNA test done.

    Do you have a source for that price? I know that the testing done for entries into the bone marrow registry is about $50/person; at least that’s the approximate price they quote when they’re asking for money and tell you how many people you’re helping to register. Law enforcement might want a more complex typing, which would drive the price up a bit, but you could probably bring it back down some if you were doing it in really massive bulk.

    FWIW, the FBI says there were about 12.4 million arrests in 2011. If you assume $200/arrest for typing, that’s still only about $2.5 billion/year. That’s a lot of money, but it’s a small fraction of our total law enforcement budget.

  167. 167
    Bruce S says:

    Hard to differentiate this from appropriation of your photographic image and fingerprints if arrested. Particularly since DNA is increasingly the kind of tool in criminal investigations that fingerprints had been. What’s needed is an absolute sequester of this information held by law enforcement agencies – presumably an FBI database like their fingerprint database – from any use by private parties, businesses, etc. That’s the only area where I see a danger. Of course it’s obtrusive, but physical identification upon arrest doesn’t violate the 4th amendment, and that’s what this is. Albeit a very “deep” form of physical identification. I think the relative certainty of DNA evidence will help innocent people more often than not if it’s collection is expanded. But it needs an absolute seal from any use outside of identification for law enforcement purposes.

  168. 168
    Keith G says:

    I watched a lot of football in the 60s and played HS football in the 70s. Decon Jones was one of my favorites and led me to want to play. I see he just passed away.

  169. 169
    Cacti says:

    @celticdragonchick:

    A lot of issues swirling around DNA boil down to trust, don’t they? You might trust a consumer genetics company to keep your DNA information secure, for example, or you might trust a medical center to store your baby’s umbilical cord blood. But do you trust the government with your DNA?

    For a geographically immediate example in my neighborhood: If you were a person of Hispanic ancestry, would you trust Joe Arpaio’s sheriff’s department with a sample of your DNA?

  170. 170
    Adam C says:

    DNA contains a lot more information about you than fingerprints do. There is far more there than simple identification. The argument that they are the same thing needs to be closed and thrown away.

    Furthermore, the question is about whether taking that information from you is in agreement with privacy protections in your Constitution. It’s not about whether the use of that information is currently protected by laws (which will never be changed or broken despite millions in profit to be made). It’s not about whether current practice (or expense) in processing DNA is capable of determining anything other than identity. Once this Constitutional protection is gone, it’s gone; you can’t use the Fourth Amendment to protect against your information being sold by the state to insurance companies, or from some future judge deciding that the presence of a genetic mutation indicating a predilection for sociopathy is admissable evidence in your trial.

  171. 171
    JWL says:

    “..cops are doing it to identify the person in custody, which was the majority’s reasoning”.

    Sure that’s it.

    Just like the LA cops jumped OJ Simpson’s fence the night his wife and Ron Goldman were butchered without first getting a warrant because they feared his life might also be in danger. It’s not like they suspected him of the crime. Heavens to Betsy, no way

    The cops testified to it in court, remember?

  172. 172
    Cacti says:

    @JWL:

    cops are doing it to identify the person in custody, which was the majority’s reasoning

    Unless they already have a sample of your DNA on hand, how does taking one actually identify a person in custody?

  173. 173
    Paul in KY says:

    @Cassidy: I would also say that they want to know if prospective employee is smart enough to lay off the weed for a few days before coming into apply for job.

    I’m sure the piss test is dialed to a threshhold. If they excluded all who smoked, there would be alot fewer Walmarts.

  174. 174
    Paul in KY says:

    @Mnemosyne: They conceivably could find that out & then just invent a reasdon to get rid of you.

    You would have to find out somehow it was due to illegal medical screening check.

  175. 175
    Pococurante says:

    @belieber: Hospitals already do this. Any tissue taken from a patient is their property, and there have been a number of lawsuits where corporations used that discarded DNA/etc, were sued by the patients, and the patients lost.

  176. 176
    Mnemosyne says:

    @Cacti:

    You say there’s a law against, I say, so what? States and large business interests have ample resources to litigate the question of whether the federal statute violates their sovereignty, or right to something something.

    Fine, I give up. We should never legislate against a corporation doing anything, because they’re just going to violate the law anyway, so we’ll just let them have free rein to do whatever they want.

  177. 177
    swbarnes2 says:

    @Adam C:

    DNA contains a lot more information about you than fingerprints do.

    But the cops aren’t sequencing anyone’s whole genome. They check like 13 loci. Out of 3 billion base pairs.

    I think the bigger concern is that police and juries won’t understand that a 1-in-a-million match is crappy evidence if you had to search a million person database to get a match that good.

  178. 178
    Chet says:

    @Adam C:

    DNA contains a lot more information about you than fingerprints do.

    Yes, but the CODIS database stores a lot, lot less than is in your DNA. Out of the 3.6 billion base pairs that constitute your genome, CODIS stores information about less than 50 of them or so, and those are all from non-functional portions of your genome (meaning that they have no effect on, and therefore inform nothing about, your health.)

    And it’s highly likely to stay that way because of database architecture. Changing what information is collected and stored for new samples removes the ability to compare against the old samples, and that’s what CODIS is for. So it’s likely that CODIS will continue to categorize length-polymorphism patterns for the next several decades despite that being a deeply outdated technology in molecular biology. And such patterns can’t be used for anything except determining identity and relatedness.

  179. 179
    Cacti says:

    @Mnemosyne:

    Fine, I give up.

    No, you shouldn’t throw yourself off a bridge or jump in front of oncoming traffic.

    Hey, this addressing what I imagined you said stuff is kind of fun.

  180. 180

    @Chet:

    It’s worth pointing out that the DNA markers they store in the Federal database are all microsatellite regions in non-coding DNA; so what the database stores and compares against can’t tell anybody anything about your health, genetic conditions, etc. The buccal swab and extracted DNA itself – the physical sample – could be subsequently sequenced, but that’s still pretty expensive and therefore not done by crime labs.

    These markers are purely identifying, at most you can determine if two people are related to each other (or two samples are from the same person) but you can’t determine any physical characteristics as a result except, perhaps, statistically (“this RFLP marker is highly associated with persons of asian descent.”)

    This needs to be repeated over and over again in front page articles on every blogger heading for the fainting couch over this issue. Aside from the fact that sequencing an entire genome itself is quite complex and expensive, the data collected is massive and it would be astronomically expensive to maintain a database like that for every individual arrested.

    Also, this whole issue smells to me a lot like the “drones” argument. I think we’re arguing the wrong things here. Just as, to me, it doesn’t matter whether a drone or FedEx delivers a bomb, the bomb itself is the issue, I think that the issue here isn’t whether it’s DNA or fingerprinting that’s the issue, it’s the collecting of uniquely identifiable and impossible to change attributes of a person that’s the issue.

    If we decide, collectively, that fingerprinting arrested suspects is A-OK, then so is taking a cheek swab, in my opinion. I see no issue with this.

    That said, I tend to lean toward allowing arrested suspects the right to refuse fingerprinting and DNA swabs, until a judge authorizes it in the form of a search warrant. But that’s just in happy Parrotlover land, that’s obviously not how precedent lands on this issue and apparently the supremes agree, for better or worse, there isn’t a 4th amendment issue.

    Can we all agree that this is Obama’s fault somehow?

  181. 181
    Mnemosyne says:

    @Paul in KY:

    They conceivably could find that out & then just invent a reasdon to get rid of you.

    Welcome to employment. Your company can come up with all kinds of reasons to get rid of you and you won’t know if it was an illegal reason until you investigate. That’s why we have employment law — to punish employers who fire people for illegal reasons. And under current law, it is illegal to fire someone based on genetic information.

    I realize that people are completely cynical at this point but, really, we’re supposed to pretend that a current law doesn’t exist because someone at some point in the future might pay off the Supreme Court to invalidate it, so we should just ignore existing laws against selling genetic information on the assumption that maybe someday they’ll be invalidated?

  182. 182
    JVader says:

    @Mnemosyne: FIrst, fuck you. Second, you don’t see any possibility for illegal uses of this information in the future? Are you paying attention to the WOT, torture, the FBI van that has a much, much stronger cell signal than any tower so they can track people down via their cells without a warrant? I work in cyber security for the government and the illegal shit going on is mind blowing. My only hope with this crap is how incompetent the government is at just about everything.

  183. 183
    Mnemosyne says:

    @Cacti:

    Okay, I’ll give you one more chance:

    GINA is existing law. It is a law that is currently in effect.

    Your argument is that any laws currently in effect don’t matter, because maybe the Supreme Court will invalidate it at some undetermined point in the future.

    If that’s not your argument, then state your argument, keeping in mind that the actions you’re worried about insurance companies and employers taking with people’s DNA are currently illegal. Any employer who wants to use DNA information against their employees will need to illegally obtain it (because both GINA and HIPAA prohibit the release of that information), then illegally use that information to fire an employee, and then argue the case up to the Supreme Court.

  184. 184
    Omnes Omnibus says:

    @Mnemosyne: With respect to Constitutional rights, yes. As someone stated above, once a right is gone, it ain’t coming back. Therefore, speculation about how people will deal with things in the future is entirely appropriate.

  185. 185
    Paul in KY says:

    @Mnemosyne: Was making what we in the commenting game call ‘a hypothetical’ :-)

  186. 186
    Corner Stone says:

    @Mnemosyne:

    I realize that people are completely cynical at this point but, really, we’re supposed to pretend that a current law doesn’t exist because someone at some point in the future might pay off the Supreme Court to invalidate it, so we should just ignore existing laws against selling genetic information on the assumption that maybe someday they’ll be invalidated

    And I realize you are a sociopathic congenital liar, but does anyone but me remember the “making illegal wiretaps legal retroactively” bullshit?
    The fact is that even if LEO is currently typing 13 or 50 or 500 pairs out of billions, that’s right now. The testing will get cheaper, the sequencing will become cheaper and more powerful.
    DNA is like the right hand of God at this point in our scientific evolution. People telling us what the resulting info is limited to are putting a lot of faith in a govt where the SCOTUS made a non-precedent decision in Bush v Gore and the Congress went backwards in time to immunize widespread lawbreaking.

  187. 187
    Adam C says:

    @Chet:
    None of you guys read my whole comment, did you? This still not the same as a fingerprint, no matter how much information is currently stored. All of that information still exists in the sample you’re happily surrendering. And you’re fine with giving up your Constitutional privacy protections because the technological capability to abuse this doesn’t currently exist?

  188. 188
    Mnemosyne says:

    @JVader:

    Second, you don’t see any possibility for illegal uses of this information in the future?

    Of course there’s a possibility of illegal uses. But, unlike you, I don’t think we should shrug and say, “Well, the information was used illegally, what’cha gonna do?” Illegal uses should be prosecuted.

    I work in cyber security for the government and the illegal shit going on is mind blowing.

    So you’re committing or witnessing crimes and not mentioning them to anyone? And I’m supposed to take you as my moral avatar?

  189. 189
    Mnemosyne says:

    @Adam C:

    This still not the same as a fingerprint, no matter how much information is currently stored. All of that information still exists in the sample you’re happily surrendering.

    So find the markers, document them, and destroy the original sample. Now what?

  190. 190
    Cacti says:

    @Mnemosyne:

    If that’s not your argument, then state your argument, keeping in mind that the actions you’re worried about insurance companies and employers taking with people’s DNA are currently illegal.

    My argument is that administrative creep of DNA collection is going to happen, current laws notwithstanding.

    Time will tell.

  191. 191
    JWL says:

    @Cacti: My point being that the LA cops lied through their teeth while under oath. Cops and DA’s lie through their teeth in courts every day

    Also, technology advances. What is difficult (i.e. expensive) today won’t be tomorrow.

    There was nothing wrong with the old system. If convicted, and ONLY if convicted, of a crime (certain crimes?) a person then lost their right to deny cops and DA’s their DNA.

    I’ve long believed this country would be a healthier place if everyone got hassled by a king shit cop at a young age.

  192. 192
    MikeJ says:

    @Adam C:

    And you’re fine with giving up your Constitutional privacy protections because the technological capability to abuse this doesn’t currently exist?

    Moore’s law says that in a year and a half storing info on 100 pairs will be as easy as the current 50. And in three years 200. And so on.

    And when asked why the current standard of 50 pairs isn’t good enough, the answer will be be that with 10,000 pairs matches will be more accurate. And a year and a half after they can do 10,000 pairs they’ll have the tech to do 20,000.

  193. 193
    Mnemosyne says:

    @Cacti:

    My argument is that administrative creep of DNA collection is going to happen, current laws notwithstanding.

    Current social and cultural situations will continue to creep, too. If Obamacare is able to transition us to something like a single-payer system, then who would want your DNA information? Why would your employer care anymore since the burden of your healthcare would no longer rest with them?

    Gattaca was a fiction film, not a documentary.

  194. 194
    Tonal (visible) Crow says:

    @Corner Stone:

    Just because my DNA exists in a location (potential crime scene) doesn’t mean I had been there at a relevant time.

    I can hear the responses already: Tell it to the jury, you paranoid crime-loving libtard.

  195. 195
    burnspbesq says:

    @aimai:

    I’m wondering why Scalia, who usually sides with the authorities against the rabble, is actually siding with the liberals on this one?

    He just did it to mess with your head.

  196. 196
    Adam C says:

    @Mnemosyne:
    You’re relying on safeguards that don’t even currently exist, much less with the permanence of the Constitution.

  197. 197
    gelfling545 says:

    @Cassidy: A potential employer can get your fingerprints from you just for the asking. Many make it a condition of employment. I am working on a project for a small organization which is now going to have to fingerprint their employees who have access to a certain database in order to complete the security background check which will be run by local law enforcement. The terms of their federal grant say data must be entered into the database. The terms of the database’s umbrella organization say background check for access. Of course, you can refuse the fingerprinting and therefore the job.

  198. 198
    Mnemosyne says:

    @JWL:

    There was nothing wrong with the old system. If convicted, and ONLY if convicted, of a crime (certain crimes?) a person then lost their right to deny cops and DA’s their DNA.

    The guys in this article might disagree with you. They probably would have preferred to have been cleared by DNA evidence up front rather than having to try and petition for it to be examined post-conviction.

  199. 199
    Mnemosyne says:

    @Adam C:

    You’re relying on safeguards that don’t even currently exist, much less with the permanence of the Constitution.

    People in this thread are ignoring safeguards that do currently exist, so at least we’re all on the same plane.

  200. 200
    Omnes Omnibus says:

    @Mnemosyne: You don’t see a DNA database as basically saying “Hey, you were charged with an unrelated felony at some point; we are now going to consider you a suspect in any case where we have DNA evidence from now until the end of time?” One can’t just round up the usual suspects.

  201. 201
    MikeJ says:

    @Mnemosyne:

    They probably would have preferred to have been cleared by DNA evidence up front rather than having to try and petition for it to be examined post-conviction.

    There’s a difference between testing in one case and checking everybody in the state.

    Cops having your DNA on file isn’t going to prevent anyone from being convicted. If DNA evidence exists in a case, the defense can introduce it. If it helps clear the defendant the prosecution isn’t going to mention it. It would lose the case for them.

  202. 202
    Adam C says:

    @Mnemosyne:
    The guys in that article were cleared on the basis of their own DNA. They didn’t need to have anyone else’s collected involuntarily.

  203. 203
    Paul in KY says:

    @burnspbesq: ^hat’s what I’m leaning towards as a reason. ‘You’ being a leftist, namby-pamby soshulist commie-lover (such as I).

  204. 204
    Adam C says:

    @Mnemosyne:
    So you admit your argument is irrelevant to my point?

  205. 205
    Cacti says:

    @Mnemosyne:

    Current social and cultural situations will continue to creep, too

    Since the Rehnquist Court, the creep of the SCOTUS has been toward institutional convenience over strong individual privacy rights.

    I don’t see that reversing itself anytime soon under the Roberts Court.

  206. 206
    sherparick says:

    Fingerprints are reasonably sufficient to establish identity and they are routinely collected from individuals who are arrested for misdemeanors and felonies (but not “petty offenses”). And that of course is the rub since no one I know is questioning the taking of fingerprints as an “unreasonable search and seizure.” So how is swabbing for DNA more intrusive then the taking of fingerprints, also a very unique and individual identifier of us humans? And just like fingerprints, we shed our DNA about everywhere we go and on everything we touch. Professor Akil Reed Amar is not exactly a conservative fireball, but he wrote an interesting Op Ed supporting the Maryland v. King, in part of course it gives him chance to show how ridiculous Scalia’s originalism because of course Madison, Hamilton, Washington, Franklin, Jefferson, et. al. Founders did not have the slightest idea about DNA (or fingerprints for that matter) in 1789-1791 when Bill of Rights were added to the Constitution. http://www.nytimes.com/2013/06.....=1&hp

  207. 207
    cleek says:

    @Omnes Omnibus:

    we are now going to consider you a suspect in any case where we have DNA evidence from now until the end of time?

    how is DNA different from fingerprints in this regard?

    for example:

    The Automated Fingerprint Identification System (AFIS) is a biometric identification methodology that employs technology to automate the processing of arrest and applicant fingerprint card reporting to the DPS. The result is a system capable of processing a fingerprint submission in a fraction of the time it takes using the manual process. AFIS also provides the DPS and local criminal justice agencies with a significant crime-fighting tool; namely, the ability to search latent fingerprints found at crime scenes against the fingerprint database of persons previously arrested in the state.

    it’s no different at all. in both cases, police store identifying information about people who have been arrested, then search that data when investigating new crimes. it already happens. it’s already considered to be perfectly legal.

  208. 208
    Cacti says:

    @Paul in KY:

    I thought Andy Dufresne was the guy who ‘fixed’ the brakes on his wife’s car & then she picked up another person & they both died in wreck.

    Andy Dufresne was the character in Shawshank Redemption who was wrongly convicted of shooting his wife and her paramour while they were in bed.

    Even assuming the case were real, a DNA swab would have accomplished precisely dick in proving his guilt or innocence.

  209. 209
    Omnes Omnibus says:

    @sherparick: As noted above, collecting a DNA sample from a person is invasive. There is a significant body of case law that says that it makes a difference.

  210. 210
    Cassidy says:

    I’d like to here Elon’s take on this. My thoughts are that certain practices are going to happen and as long as they happen to young black/ brown men, no one outside of the left blogosphere is going to give a shit. So assuming that stop&frisk is going to happen, wouldn’t it make sense to collect DNA. For one, this could exonerate people who are incarcerated. inevitably, the S&F is going to find people wh have committed crimes. Secondly, this gievs us a metric. If the NYPD performed 20K S&F’s and only collected DNA that solved a crime in 1%, can’t we then argue with hard numbers that the policy is wrong?

  211. 211
    Omnes Omnibus says:

    @cleek: two things: 1. I don’t like the use of fingerprints for that purpose. 2. I object to using an invasive procedure against a defendant without a warrant being issued.

  212. 212
    JWL says:

    @sherparick: Then why not just cut to the chase, and mandate DNA samples from each citizen as a requirement for citizenship? Why should being arrested serve as the vital criteria for the collection of a DNA sample?

    “Every cop is a criminal,
    And all the sinners saints”.

  213. 213
    Cassidy says:

    @Cassidy: Hear. I’d blame autocorrect and my phone, but that’d be a lie.

  214. 214
    El Cid says:

    As long as there’s no registry of gun ownership, because that would be a violation of freedom and privacy.

  215. 215
    Omnes Omnibus says:

    @Cassidy: The purpose of stop and frisk is to ensure a police officer’s safety during an encounter. It is not supposed to be a way around probable cause.

  216. 216
    Tonal (visible) Crow says:

    @Chet:

    Changing what information is collected and stored for new samples removes the ability to compare against the old samples, and that’s what CODIS is for. So it’s likely that CODIS will continue to categorize length-polymorphism patterns for the next several decades despite that being a deeply outdated technology in molecular biology. And such patterns can’t be used for anything except determining identity and relatedness.

    They can store your entire DNA sequence, but still match using only the current set of STR loci.

  217. 217
    Cacti says:

    @Omnes Omnibus:

    As noted above, collecting a DNA sample from a person is invasive. There is a significant body of case law that says that it makes a difference.

    This.

    In nearly every state, as a condition of operating a motor vehicle on public roads, you consent to give a sample of blood or breath if a police officer has probable cause that you are operating said vehicle under the influence of alcohol.

    However…if you refuse such tests, the police can’t draw a specimen of your blood without first obtaining a warrant.

  218. 218
    eemom says:

    Late to the par-tay, and haven’t read all the comments, but let me see if I understand this correctly. Folks are arguing that the DNA collection at issue here is cool regardless of the Constitiutional implications because:
    — it’s no different from fingerprinting
    — it might result in the exoneration of innocent people
    — legal safeguards exist or could be enacted to prevent it being misused
    Those are the arguments?

  219. 219
    Paul in KY says:

    @Cacti: Wasn’t there a character in that story who did that? Maybe it was another dude in prison with him. Or another King book. There are so many…

    Thank you for answering.

  220. 220
    Paul in KY says:

    @El Cid: God bless Murca!

  221. 221
    Cassidy says:

    @Omnes Omnibus: Well yeah, sure, but we both know that’s not how it’s applied. We also both know that the NYPD, or any big metro PD, will happily use this ruling to expand S&F to DNA collection if they think they can get away with it. I guess I’m just pessimistic. Certain things are going to happen and the powers that be won’t stop them. “The people” sure as shit aren’t going to. Outside of lefty political junkies like us, no one gives a shit. The vast majority of America aern’t standing around the water cooler discussing the implications of this ruling. So, I accept the inevitability of it and think we need to figure out a way to make it work positively.

  222. 222
    Mnemosyne says:

    @Omnes Omnibus:

    You don’t see a DNA database as basically saying “Hey, you were charged with an unrelated felony at some point; we are now going to consider you a suspect in any case where we have DNA evidence from now until the end of time?”

    Not any more than having a fingerprint database does. I guess that’s what I (and other people) are having trouble with: how is checking existing DNA data against cold cases that have DNA evidence different than checking existing fingerprint data against cold cases that have fingerprint evidence? I really, truly, and honestly am not understanding why keeping a fingerprint database is A-OK but keeping a DNA database is a horrible infringement on our rights.

    People have brought up the possibility of outside people accessing the DNA database, but I think that’s outside of the question at hand, which is what makes DNA so intrinsically different from fingerprints that it’s a Constitutional violation to collect it as routinely as fingerprints are collected? Is it just that we’re so accustomed to collecting fingerprints that we can’t see the inherent Constitutional violation of doing it?

    (I have to head out to a meeting, but I’ll check back.)

  223. 223
    Tonal (visible) Crow says:

    @Parrotlover77:

    the data collected [from sequencing a person’s entire genome] is massive and it would be astronomically expensive to maintain a database like that for every individual arrested.

    Completely wrong. The human genome (including mitrochondrial DNA) is ~3*10^9 base-pairs. Each locus can contain 1 of 4 bases, which can thus be represented by 2 bits, which means that the entire genome can be stored in ~750 MB of uncompressed space. Which means that a 2TB disk drive (~$100) can store ~2700 persons’ genomes. So it’d take only 117,000 such drives, costing only $12M, to store the DNA of every person in the U.S.

    Are you seriously arguing that our governments can’t scrape together $12M for this very very very important venture that’ll catch so many criminals and exonerate so many innocents and won’t invade our privacy one single bit so shut up you paranoid libtards?

  224. 224
    Chet says:

    @Adam C:

    All of that information still exists in the sample you’re happily surrendering.

    But they’re probably not going to keep the sample. They’re going to characterize the microsatellite loci and then throw it away. It’s too expensive to keep a physical sample collection of every DNA sample they’ve ever taken – and they go bad.

  225. 225
    Chet says:

    @MikeJ:

    And when asked why the current standard of 50 pairs isn’t good enough, the answer will be be that with 10,000 pairs matches will be more accurate. And a year and a half after they can do 10,000 pairs they’ll have the tech to do 20,000.

    But they won’t have the information to do it, unless they re-sample everybody currently in the CODIS database.

    Again, there’s an architectural issue, here. The sole utility of CODIS is that you can take a sample today in Chicago and match it to a sample taken in Los Angeles 20 years ago. You lose that utility if the samples you take today are characterized via a different scheme than the old samples, which limits the degree to which they can improve the analysis. It has nothing to do with the tech – and believe me, we far exceeded restriction-fragment analysis techniques 15 years ago; direct sequencing of DNA is now standard bioinformatic practice. Has been for a decade. We’ve got an instrument here that can sequence your entire genome in five days for less than a thousand dollars. But the result of that analysis can’t be directly compared to CODIS because it’s a drastically different kind of data.

  226. 226
    Chet says:

    @Tonal (visible) Crow:

    They can store your entire DNA sequence, but still match using only the current set of STR loci.

    The DNA tests crime labs do don’t produce sequence data. They produce length polymorphism data. So there’s no sequence to store.

  227. 227
    Adam C says:

    @Chet:
    Yes, I doubt they’d ever keep a physical sample, but as Tonal Crow aptly pointed out, that’s hardly necessary, is it? You’ve surrendered your right to withhold the information, what they do with it is up to them.

  228. 228
    Tonal (visible) Crow says:

    @Mnemosyne:

    So find the markers, document them, and destroy the original sample.

    Please document the processes that ensure that government will destroy the original samples after extracting only the relevant markers. Be specific, including the penalties (if any) for abuse, the probabilities that they will be enforced, the existence of any remedies for the individuals whose DNA is compromised, and the probabilities that they’ll be able to take advantage of them.

    Also remember to account for the fact that crimes by government are sometimes retroactively legalized, either de jure (e.g., warrantless telecom spying) or de facto (e.g., Bush/Cheney torture).

  229. 229
    Chet says:

    @Tonal (visible) Crow:

    So it’d take only 117,000 such drives, costing only $12M, to store the DNA of every person in the U.S.

    Only once it’s assembled. A shotgun read of the full human genome – shotgun reads being massively redundant – can be as much as ten terabytes. Per genome.

    There isn’t enough computing power in the country – even including all of the iPhones – to assemble every human genome in less than 20 years.

  230. 230
    Tonal (visible) Crow says:

    @Chet:

    The DNA tests crime labs do don’t produce sequence data. They produce length polymorphism data. So there’s no sequence to store.

    The original sample can be stored, and sequenced by someone else, either contemporaneously or sometime in the future. How stupid do you think we are?

  231. 231
    Chet says:

    @Adam C: CODIS doesn’t hold sequence data, and the DNA tests the crime labs do doesn’t produce sequence data, either. If you want sequence data from a sample taken by the cops, you’d have to sequence the physical sample (you can’t infer the sequence from CODIS.) If the sample was used up by the testing – DNA testing is inherently destructive – then there’s nothing to sequence.

  232. 232
    Chet says:

    @Tonal (visible) Crow: Storing physical DNA samples is incredibly expensive and inherently time-limited, unless you think law enforcement agencies have the magic power to suspend the laws of physics.

  233. 233
    Adam C says:

    @Chet:
    You know, I put italics around the word currently in every single comment I posted here in the hopes that you would notice it. If you’re just going to ignore that word and pretend that current practices will never change, then you’re wasting my time.

  234. 234
    Chet says:

    @Adam C: I’ve already explained why current practices are likely to continue for decades. Didn’t seem to matter to you, though. But what the hell do I know? I only design genomics databases for a living.

  235. 235
    Tonal (visible) Crow says:

    Only once it’s assembled. A shotgun read of the full human genome – shotgun reads being massively redundant – can be as much as ten terabytes. Per genome.

    There isn’t enough computing power in the country – even including all of the iPhones – to assemble every human genome in less than 20 years.

    You need to read current lit, not stuff from 1980. From http://www.lifetechnologies.co......html.html :

    Life Technologies Corporation (NASDAQ: LIFE) today announced it is taking orders for the new benchtop Ion Proton™ Sequencer that is designed to sequence the entire human genome in a day…The Ion Proton™ Sequencer, priced at $149,000….

    At that price, government could spend $15B (What? One month in Iraq?) to sequence ~36,500,000 persons’ DNA per year. And the speed is sure to increase, and the price to decline, so it’d hardly be cost-prohibitive for government to fully sequence the entire population’s DNA, let alone beyond the country’s total computing power.

  236. 236
    Tonal (visible) Crow says:

    @Chet:

    @Tonal (visible) Crow: Storing physical DNA samples is incredibly expensive and inherently time-limited, unless you think law enforcement agencies have the magic power to suspend the laws of physics.

    DNA’s half-life at room temperature is ~500 years. http://www.nature.com/news/dna.....fe-1.11555 . Tilt, wanna play again?

  237. 237
    Adam C says:

    @Chet:
    No, you didn’t. You explained that there is a current database that doesn’t store complete information, and I’m sure that’s true. You claimed that it would be incompatible with any possible new database that does store complete information, but I don’t believe that. You also seem to think that this means no new database would ever be created, but I don’t believe that either.

  238. 238
    Chet says:

    @Tonal (visible) Crow: I know all about IonTorrent, there’s one across the hall in the lab. I’ve used it quite a bit. The last run off of it was 200 mb. Of course, that’s a demultiplexed run for the genome of a single strain of E. coli. The multiplexed raw data was over 2 GB. To sequence a human genome with it, you’d need at least four runs to statistically cover every base. So, 8 GB. De novo assembly of our microbial genomes takes about an hour on my 32-core Xeon box.

    I’m on about 70 microbial sequence projects listed in GenBank right now; how much sequencing have you done?

  239. 239
    Tonal (visible) Crow says:

    @Adam C:

    You claimed that it would be incompatible with any possible new database that does store complete information, but I don’t believe that.

    Neither do I. They’ll need to process complete genomes to extract the appropriate STR loci sequences, but neither physical law nor cost prohibits that.

  240. 240
    Chet says:

    @Adam C: And you don’t believe that the current laws against establishing a national database of non-anonymized human genomes with involuntary participation are any obstacle to establishing such a database. So presumably you don’t believe that any possible laws could pose an obstacle to establishing such a database.

    So what, exactly, in your view could possibly stand in the way of a national database of non-anonymized human genomic sequences, involuntarily collected from every resident of the US? Be specific.

  241. 241
    Omnes Omnibus says:

    @Chet: If it is theoretically possible, there is a legal concern. Con Law decisions needed to be made with an eye toward the future.

  242. 242
    Chet says:

    @Tonal (visible) Crow:

    DNA’s half-life at room temperature is ~500 years.

    Inside of a dinosaur bone that may be true. Do you contend that the police are going to store DNA samples inside of dinosaur bones?

  243. 243
    Keith G says:

    @JWL: That’s going to happen sooner rather than later. I wouldn’t be surprised if within about two decades a very strong case will be made for universal bio-metric identification for all folks occupying space in this land.

    A handful of years ago, I would have thought that such a thing was horrific. Now I see an advantage in unifying our very convoluted and piecemeal approach on this topic. The sooner we get to free universal ID, the sooner we get to making sure all citizens can vote if they wish. The sooner we get to a national policy about the use of DNA the sooner those without good lawyer and/or with a lot of time to burn can use DNA evidence in their favor (in those applicable cases).

    I see O.O. above sees DNA collection as invasive. I understand.

    But

    I think being “video recorded” on nearly every step I take outside my apartment is more personally intrusive. My DNA record will be stored by a computer and essentially left alone unless a match is detected, My video files (evidence of discrete personal activities and habits) are open to a lot more humans, and a lot more speculation, and a lot easier to decode.

    As far as abuse by the nefarious…I do not see that as being a wide spread issue unless it can be monetized. And in any case, if “black opts” forces are ready, willing, and able to comb through DNA files, we have a lot bigger issues to deal with.

  244. 244
    Tonal (visible) Crow says:

    @Chet: OK. let’s go with 8GB/genome, uncompressed. That’d raise the cost to store the entire U.S. population’s genomes to ~$120M, which is hardly prohibitive. It’d take awhile (and ~$15B of investment) to manufacture enough high-throughput sequencers to do the job (assuming current tech), so this isn’t something that can be done overnight, but neither would it take 20 years.

  245. 245
    Keith G says:

    @Tonal (visible) Crow:

    DNA’s half-life at room temperature is ~500 years

    So if 400 years from now someone finds a away to abuse my (theoretical) DNA record, I will deal with it then.

  246. 246
    Corner Stone says:

    @Keith G:

    unless it can be monetized

    This is inevitable. Why are you so blase about this? Like the results will be used to exonerate people more than harm?
    That is fantasyland.

  247. 247
    Tonal (visible) Crow says:

    @Chet:

    @Tonal (visible) Crow:

    DNA’s half-life at room temperature is ~500 years.

    Inside of a dinosaur bone that may be true. Do you contend that the police are going to store DNA samples inside of dinosaur bones?

    Srsly? That’s your argument? But for everyone else’s benefit, the authorities will store the samples in clean test tubes in a cool, dry place, with nice labels printed on acid-free paper, which will provide plenty of time to sequence them. Though I haven’t read a paper on it, I’d guess that a sample stored in a nice clean test tube at ~5 degrees C will last much longer than a sample stored in a dinosaur bone allowed to lie outdoors under who-knows-what conditions.

  248. 248
    Keith G says:

    @Corner Stone: Hmmm. Would it be a waste of time to ask how you actually feel about this? I mean, I have an ideal, but still….

  249. 249
    Just Some Fuckhead says:

    @El Cid:

    As long as there’s no registry of gun ownership, because that would be a violation of freedom and privacy.

    lolz!

  250. 250
    Tonal (visible) Crow says:

    @Corner Stone:

    Like the results will be used to exonerate people more than harm?
    That is fantasyland.

    Welcome to Balloon-Juice, where the denizens are eager to “justify” invasions of Liberty by (1) denying that the Liberty ever existed; (2) denying that it’s being invaded; (3) denying that the invasion is meaningful; (4) arguing that something else outweighs the invasion, where “something else” is often highly speculative; (5) arguing that the invasion will benefit the persons being invaded; (6) calling you a “Republican” or “pro-rape” because you oppose the invasion.

    I’ve gotta hand it to this site for one thing, though: it’s motivated me to contribute even more to the ACLU than I would otherwise have done. And you know who hates the ACLU….

  251. 251
    Mnemosyne says:

    @Tonal (visible) Crow:

    OK. let’s go with 8GB/genome, uncompressed. That’d raise the cost to store the entire U.S. population’s genomes to ~$120M, which is hardly prohibitive. It’d take awhile (and ~$15B of investment) to manufacture enough high-throughput sequencers to do the job (assuming current tech), so this isn’t something that can be done overnight, but neither would it take 20 years.

    Those sequencers and DNA tests don’t magically run themselves — you will also need actual humans to do the collection, seal it properly, transport it to the location where it’s going to be tested, do the testing, document the results, prepare the sample for storage, and store it.

    Test tubes aren’t big, but if there was a project to store the original physical sample from every American, good luck finding secure and climate-controlled storage space for over 350 million test tubes, with more coming every day.

    There’s a reason why police labs have 400,000 rape kits sitting untested on their shelves — DNA testing is a very labor-intensive process that requires a lot of skilled humans, and most states don’t have the budget needed to keep up with the demand of what’s being collected right now. We are very, very far from the days when a robot will be able to collect, analyze, and report results in 10 seconds like you see in a science fiction movie.

    Also, I’m a little frightened that Chet and I are agreeing on, well, anything. Is is Opposite Day and no one remembered to tell me?

  252. 252
    Corner Stone says:

    @Keith G: If you honestly believe that massive DNA accumulation by the govt will be used to preclude or exonerate individuals then I guess there’s not much else to converse about on this issue.

  253. 253
    shortstop says:

    @Tonal (visible) Crow:

    And you know who hates the ACLU….

    Hitler’s descendants?

    Not making fun of you, BTW. I share your concerns.

  254. 254
    patroclus says:

    I gotta go with the liberal Scalia and against the authoritarian Kennedy and the “swing” Justice Breyer (I think they’re fucking with us) on this one. No probable cause; no search, plus the slippery slope argument. I read portions of the majority opinion and the logic seems tortured and reads like a decision in search of a justification. In my view, DNA test results are not as yet definitive enough to justify a DNA database with which we investigate all unsolved crimes – markers aren’t matches and there remain false positives. Unlike polygraphs, they are accurate enough to be useful (and admissible), but there should be a standard like probable cause that justifies what I view as invasive. I see the potential for abuse here – adhering to the constitutional standard would lessen errors and enhance certainty.

  255. 255
    JWL says:

    @Corner Stone: Besides, a person is still be presumed innocent until proven guilty in this country.

    For the time being, anyway.

  256. 256
    Tonal (visible) Crow says:

    @Mnemosyne: Nothing in that list is anything like insurmountable for a motivated government, so you can stop pretending. The fact is, sequencing tech is advancing very rapidly, so throughput is only going to go up, and price is only going to go down.

    The day is not far off when the authorities will have your DNA sequence, too. At which point you can proudly proclaim how good that is, until the police come to search your home (and computer) because of a database hit on one of your relatives, at which point you will loudly screech that your liberty has been raped by jack-booted brown-shirted thugs.

    On rape kits, it’s purely a matter of motivation. Many police (and the politicians who fund rape-kit tests) don’t consider rape a real crime. They’re too busy stopping and frisking black men, arresting people for smoking doobies, and researching new ways to violate the 1st, 4th, 5th, 6th, 8th, 9th, 10th, and 14th Amendments.

  257. 257
    Tonal (visible) Crow says:

    @JWL:

    @Corner Stone: Besides, a person is still be presumed innocent until proven guilty in this country.

    For the time being, anyway.

    I can already hear the usual suspects here arguing that whittling away that presumption is good because (1) It was never a right anyway; (2) If you have nothing to hide, you have nothing to fear; (3) Think of all the criminals we’ll catch! (4) You’re a Republican because you question its fairness.

  258. 258
    patroclus says:

    @Mnemosyne: For me, the issue is accuracy – DNA test results (so far) are very accurate in excluding some suspects from crimes (the West Memphis 3, for example) but not nearly as accurate at proving that a certain suspect committed a certain crime. That is, the markers can definitively establish that someone did not commit the crime, but the markers aren’t matches and cannot as definitively show the opposite. That’s why I used polygraphs (rather than fingerprints) in my first response. Does anyone support a national database of polygraph test results? No – because they aren’t reliable and people can pass polygraph tests even though they’re lying. DNA test results are not (as yet) as definitive as fingerprints; hence, they should not get the same favorable legal treatment. When and if they become so accurate, I would support a greater use of them. I think the Justices are confusing the greater accuracy for exclusion with the lesser accuracy for commission – a big mistake, in my view.

  259. 259
    Mnemosyne says:

    @Tonal (visible) Crow:

    Nothing in that list is anything like insurmountable for a motivated government, so you can stop pretending. The fact is, sequencing tech is advancing very rapidly, so throughput is only going to go up, and price is only going to go down.

    Yes, in a country where our frickin’ bridges are falling down right and left, I’m sure that Congress is going to push through a $100 billion (at a minimum) startup program to buy the equipment, train the personnel, and find the laboratory space, plus the additional $100 billion per year to run everything, with increasing costs every year. I’m sure they’re going to jump right on that.

    On rape kits, it’s purely a matter of motivation.

    I have a feeling that when you say “motivation,” what you really mean is “money,” because you’ve done it twice now. Stop-and-frisk is cheap — the cop is already on patrol, you’re already paying him a salary, may as well have him do a little street harassment. Arresting guys smoking pot is cheap. Even research is cheap — have an intern or clerk do it using Lexis.

    Laboratory work is expensive — you need the physical space, the equipment, the people to run everything. And when state and county budget cuts come, the first thing that gets cut is that expensive lab, and that rape kit gets put back on the shelf because it costs too much money to process it.

  260. 260
    Keith G says:

    @Corner Stone: Okay. Gotcha.

  261. 261
    Mnemosyne says:

    @patroclus:

    That is, the markers can definitively establish that someone did not commit the crime, but the markers aren’t matches and cannot as definitively show the opposite.

    I am not certain that you are up on the most current science about DNA tests if you think they’re no more accurate than a polygraph. Even the ACLU says that DNA tests can “confirm guilt or innocence” and their issue with the court decision is not accuracy, but privacy. Are you confusing them with the old blood type tests that showed which blood type group someone belonged to?

  262. 262
    Omnes Omnibus says:

    @patroclus: Yes, DNA can unequivocally rule someone out, but it can only establish that one is a member of a pool of people who could have provided the sample. I have serious doubts that many jurors can grok this. Cynical of me? Probably.

  263. 263
    Tonal (visible) Crow says:

    @Mnemosyne: Dunno where you get the $100B startup cost and $100B yearly budget. Got some calculations? Especially I don’t know where the “increasing costs every year” figure comes from, given that sequencing tech is rapidly becoming cheaper and faster.

    And when I say “motivation”, I mean exactly that, not cost. Some of the authorities like to harass black men because they’re black men. Some of the authorities like to arrest people for drug possession, even when that emphasis detracts from working on serious crimes. And (far too many) of the authorities like to leave rape kits on dusty shelves because they don’t believe rape is a real crime.

  264. 264
    Tonal (visible) Crow says:

    @Omnes Omnibus:

    @patroclus: Yes, DNA can unequivocally rule someone out, but it can only establish that one is a member of a pool of people who could have provided the sample. I have serious doubts that many jurors can grok this. Cynical of me? Probably.

    No, realistic, and yet another bias in the criminal “justice” system that sorely needs work.

  265. 265
    patroclus says:

    Well, I’m not a DNA specialist, but I just re-watched the HBO documentary “Paradise Lost” and every DNA expert there said that the WM3 could be definitively excluded but the actual DNA found could not even rise to the level of “probable cause” to justify a belief that one of the step-fathers should be considered a suspect. And the reason was because all they could say about the DNA was that there was a “probablity” that 1.5% of the population had the “markers” in the DNA found at the scene. There was thus a greater degree of accuracy in the exclusion of guilt analysis than in the “proof of guilt” analysis. The experts included the leading forensic pathologist in the country and the 20-year DNA specialist at the FBI – this was 2011. If standards have increased since 2011, I’ll take your point. But I think I’m fairly up-to-date. Barry Scheck made this point last night on Chris Hayes and he’s considred an expert too. DNA is very accurate as to excluding people; not so much as to proving guilt.

  266. 266
    Mnemosyne says:

    @Omnes Omnibus:

    Yes, DNA can unequivocally rule someone out, but it can only establish that one is a member of a pool of people who could have provided the sample.

    I remember that in the OJ Simpson case, when the coroner testified that the likelihood that someone other than OJ had left similar DNA at the scene was 1 in 10 million, that was one of the things they used to acquit him — after all, that meant that it could have been someone else who just happened to have similar DNA.

    So, given how actual juries have been making decisions, I think they’re more likely to think that if there’s a remote possibility that it was someone else, that’s enough to create reasonable doubt.

  267. 267
    patroclus says:

    @Omnes Omnibus: Thanks for making my point more pithily! That’s what I’m trying to say.

  268. 268
    Mnemosyne says:

    @patroclus:

    Well, I’m not a DNA specialist, but I just re-watched the HBO documentary “Paradise Lost” and every DNA expert there said that the WM3 could be definitively excluded but the actual DNA found could not even rise to the level of “probable cause” to justify a belief that one of the step-fathers should be considered a suspect.

    IIRC, it didn’t rise to the level of “probable cause” to get a court order to require the stepfather to give them a sample of his DNA. They didn’t have DNA evidence from the stepfather to compare the existing DNA evidence to, and they didn’t have enough other evidence against him to be able to legally require him to give them a sample.

    You need to be able to compare two sets for a match (or no match). One set by itself doesn’t give you very much useful data. That’s why they’re able to exclude people who were wrongfully convicted (two sets of data that can be compared) but can’t necessarily use the same data to find someone. It’s a confirmation of existing evidence, not a tracer to an unknown person.

  269. 269
    Mnemosyne says:

    @Tonal (visible) Crow:

    Dunno where you get the $100B startup cost and $100B yearly budget. Got some calculations? Especially I don’t know where the “increasing costs every year” figure comes from, given that sequencing tech is rapidly becoming cheaper and faster.

    No calculations, just a guess based on the fact that starting salary for a police lab assistant is $50,000 a year and goes up from there, plus the cost of office space, plus the cost of equipment — the price for the computers may be going down, but test tubes and other physical lab equipment is staying the same.

    I’m starting to feel like I need to find a “How It’s Made” episode for something like this because you seem to think that one lab assistant and maybe a manager can process 350 million sets of DNA. It’s a very, very labor-intensive process that costs a lot of money for things that computers cannot do. The cost of digital storage space is going down, but where are your statistics to show that the cost of climate-controlled physical storage space is also going down? Is the price of test tubes going down as rapidly as the cost of a computer processor? Cotton swabs? Gloves? Labels?

  270. 270
    Mnemosyne says:

    Some quick numbers for a crime lab:

    The LA County Sheriff’s Department processes about 70,000 pieces of evidence a year with a laboratory staff of 198. Assuming that’s a full load and no one’s slacking off, how many additional staff members would it take to process the 400,000 rape kits sitting on shelves in police labs?

    It doesn’t matter how many terabytes of cheap storage you have if you don’t have enough people to do the actual work of testing and documenting the samples.

  271. 271
    El Cid says:

    Someone had to set the stage for the Mutant Registration Act.

  272. 272
    JWL says:

    @Mnemosyne: Technology advances.

    Today, DNA testing is in the crank phone, Alexander Graham Bell era.

    All too soon it will be the satellite communication era.

    Ever been hassled by a crooked cop? Ever hear tell of a crooked DA? Do you unreservedly place your faith in political organizations?

    Because I: (1) have been, (2) am aware of, and (3) do not.

  273. 273
    Cassidy says:

    Lots of irrational fear of the gov’t. I thought us left leanin types were supposed to believe in the good that gov’t can do.

  274. 274
    JWL says:

    @Cassidy: Government can, has, and will continue to “do good”, as you’ve phrased it.

    But human nature, harnessed to power, is inherently corruptible.

    It’s a fine line each generation that has inherited our Constitutional Laws has tread.

    The bad deal with the ruling in question is that a citizen need only be arrested- not convicted- to be coerced into giving up their DNA profile. Look crosswise at a cop who had a fight with his/her wife/husband that morning? Fuck you if you don’t like it; fuck you if you’re cut loose without being charged after 3 hours. Your DNA is now in The System.

    And technology evolves.

  275. 275
    Corner Stone says:

    @Cassidy: There’s nothing irrational about it. Left leaning types believe that government can be a force for good in people’s lives. It certainly has been in mine.
    And there’s no conflict in realizing the limitations of privacy and respect individual citizens should expect their government to adhere to.

  276. 276
    Chet says:

    @Tonal (visible) Crow:

    Though I haven’t read a paper on it, I’d guess that a sample stored in a nice clean test tube at ~5 degrees C will last much longer than a sample stored in a dinosaur bone allowed to lie outdoors under who-knows-what conditions.

    I can tell you that, in every research lab I’ve worked at, we can’t get DNA to store effectively for longer than about two years under any conditions at all. I don’t know what the deal is inside of dinosaur bones – that’s not my field – but the extraction and purification of DNA leaves it very susceptible to damage. In a 2010 paper, Roder et al apparently set the benchmark for long-term storage with a buffer solution that prevented any substantial change in qPCR threshold over a period of 100 days.

    500 years? You don’t know what you’re talking about. Googling a couple of Nature articles isn’t going to cut it on this.

  277. 277
    Chet says:

    @Omnes Omnibus: A DNA test match based on the number of markers they use is sufficiently specific that, statistically, there would have to be 100 billion living human beings in order for the “pool” of potential matches to contain more than a single individual.

    Until we colonize the rest of the galaxy DNA tests are perfectly specific.

  278. 278
    Chet says:

    @Corner Stone: I just don’t believe that the “right to privacy” extends to identity. The US government has a right to positively and uniquely identify the people within its borders. All governments have that right and have had it since the Domesday Book. There’s no right to wear a disguise in public; there’s no right to fraudulently misrepresent your identity; there’s no right to have the government be unable to uniquely and positively identify you as distinct from other persons.

    Privacy protects your right to conceal information that is personal, subject to social opprobrium, and whose threat of disclosure could be used to coerce you. It doesn’t protect your right to get away with crimes or conceal evidence of lawbreaking, and it doesn’t protect you from the right of the government to positively identify persons they’ve taken into custody.

  279. 279
    Tonal (visible) Crow says:

    @Cassidy:

    Lots of irrational fear of the gov’t. I thought us left leanin types were supposed to believe in the good that gov’t can do.

    Lots of irrational unconditional trust of the government, including the police and prosecutors. I thought us left-leanin’ types were supposed to believe that no establishment has a monopoly on good, and thus “the price of Liberty is eternal vigilance”.

  280. 280
    Tonal (visible) Crow says:

    @Chet:

    I can tell you that, in every research lab I’ve worked at, we can’t get DNA to store effectively for longer than about two years under any conditions at all. I don’t know what the deal is inside of dinosaur bones – that’s not my field – but the extraction and purification of DNA leaves it very susceptible to damage….

    How, then, do sperm banks and in-vitro fertilization clinics work? Or, for that matter, how do seed-banks work? You don’t need to store the purified DNA; you need only store the sample containing it in such a way as to slow the DNA’s deterioration enough to allow you to sequence all the samples before the DNA has deteriorated “too much”. You don’t extract the DNA until you’re ready to sequence it.

    Also, whole-population DNA sampling would (of course) be done on a rolling basis, to limit the number of samples that need to be stored and to ensure that they’re fresh enough.

  281. 281
    Corner Stone says:

    @Chet:

    I just don’t believe that the “right to privacy” extends to identity. The US government has a right to positively and uniquely identify the people within its borders.

    I’m sorry. Say what now?

  282. 282
    Tonal (visible) Crow says:

    Also on DNA preservation in whole tissues under (naturally) frozen conditions:

    Regeneration of whole fertile plants from 30,000-y-old fruit tissue buried in Siberian permafrost

    http://www.pnas.org/content/ea.....9.abstract

    Whole, fertile plants of Silene stenophylla Ledeb. (Caryophyllaceae) have been uniquely regenerated from maternal, immature fruit tissue of Late Pleistocene age using in vitro tissue culture and clonal micropropagation. The fruits were excavated in northeastern Siberia from fossil squirrel burrows buried at a depth of 38 m in undisturbed and never thawed Late Pleistocene permafrost sediments with a temperature of −7 °C. Accelerator mass spectrometry (AMS) radiocarbon dating showed fruits to be 31,800 ± 300 y old….

    —–
    Gotta be magic, ‘cuz Chet says it’s impossible.

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