• Bryan Perkins

A Reasonable Expectation of Privacy to Your Own DNA? Not so Much.



DNA – the basic building blocks of your very existence. It is within every cell that is a part of your body. It contains the unique blueprint that makes you who you are. It contains your hereditary history and medical information. It is your past, your present, and your future. It is your “secret recipe” so to speak. It is “you.”


Coke also has a secret recipe. The secret recipe for Coke is protected by the full force of our American system of justice. In 2006, the FBI launched an undercover investigation which led to the arrest and federal prosecution of three Coke employees who had conspired to sell the secret Coke recipe to “the highest bidder.” When the judge sentenced one of the conspirators, a former secretary at Coke, he imposed a severe eight year prison term. In passing this sentence, the judge exclaimed: “This is the kind of offense that cannot be tolerated in our society.”


If conspiring to steal the recipe of an inanimate substance owned by a Fortune 500 corporation is the “kind of offense that cannot be tolerated in our society,” one could only imagine the great lengths that our government must take to protect the very personal genetic code of its own citizenry. Or so it should seem. After all, “the People” are protected by the force of the Bill of Rights. So, what lengths has the Supreme Court taken to protect your private DNA from arbitrary government confiscation?


In 2013, the United States Supreme Court decided the case of Maryland v. King. In King, the Supreme Court held that if the police arrest you for a serious crime (not convicted — just arrested) then as part of the identification procedure (similar to taking your mug shot and fingerprints) the police can take a sample of your DNA. It can do this even when the DNA that is confiscated has nothing to do with the offense for which you are arrested.


In his dissent, Justice Scalia saw the absurdity of the majority’s decision. Justice Scalia began by pointing out the most basic premise that must have been purposely ignored by the majority.”The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”


Scalia then went on to show the disingenuous nature of the majority’s claim that taking an arrested person’s DNA had anything at all to do with the identification procedure, especially in light of the fact that it took weeks for the DNA to be analyzed, well after the arrestee had already been identified and put into the court system. This of course is just the pretext that is used by the government to obtain your private information. Then your private data can be placed in the government’s database in the hopes of solving past crimes.


Scalia concluded as follows: “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”


Reading that last line gave me the absurd image of a proud George Washington, Thomas Jefferson, and James Madison all lined-up with their mouths held dutifully agape as the King’s soldiers put their fingers inside of their mouths to get a sample of their spit. Of course, those great men would have never allowed that to happen, or at best, there would have been some soldiers of the Crown with missing fingers.


So, the next time your drink a Coke, don’t forget that your Government is more concerned about the privacy of what is in that can, than it is about protecting the privacy of you as a citizen of the United States.


Read the entire King decision.


Read the definition of “panopticon” and see why Scalia’s choice of this word was perfect.

Attorney, Bryan Perkins, in Cincinnati, Ohio, has extensive trial and appellate experience in the area of criminal defense law.

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