In another 5-4 decision, the U.S. Supreme Court has spoken.
It has said that it’s all right for police to take a DNA swab from anyone they arrest and put the results into the National DNA Index System, where it becomes part of the federal Combined DNA Index System, the FBI program that supports criminal justice DNA databases.
As has been illustrated in recent cases involving Lawrence and area residents, these DNA checks can help to clear people falsely convicted of crimes and bring to belated justice criminals who initially escaped paying for their acts.
Even the dissenting justices agreed. “This will solve some extra crimes, to be sure,” said Justice Antonin Scalia. However, he and the three other justices who joined in the dissent said the court was allowing a major change in police powers. “Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia warned.
Although the decision cleared the way for police to take a DNA swab from people arrested for “serious” crimes, Scalia predicted that limit will not last.
The justices who were in the majority reasoned that the swab was not that big of a deal. “Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote.
Perhaps it is not that big of a deal — at the moment. If it can convict a criminal who has escaped detection, who would argue? Likewise, if it can free an innocent person, isn’t that worthwhile?
The challenge lies in where to draw the line on a growing number of identification techniques. Just because science has discovered a process, does that mean it can be used at every turn? Iris scans of a person’s eyes are being used for security purposes. Facial recognition techniques are growing in sophistication. There’s even a “gait recognition” that can identify individuals by their walks.
Those three latter means of identifying individuals can be imposed by camera monitoring systems, so there’s no need to find yourself arrested in order to be identified, indexed and ultimately tracked.
This U.S. Supreme Court case involving DNA swabs was, on one level, about “reasonable expectations of privacy” and “warrantless, suspicionless searches.” In many ways, privacy and the public lost. Perhaps what the court said, indirectly, is that protection of individual rights no longer can be carried out without “Big Brother” and intrusive technology. Is that something we want to hear?