Endgame for DNA Collection Debate?

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

DNA Collection

For five years, the ACLU of Pennsylvania has fought legislation to collect and store DNA from people who have not been convicted of a crime. The varying forms of the legislation demanded DNA collection from people who had been arrested for or charged with certain crimes, flipping the idea of “innocent until proven guilty” on its head.

In each of the last two sessions, a bipartisan coalition of state representatives has turned back the legislation when it has reached the House. If you follow the personalities of state politics, check out this amendment vote from 2012. Those voting “yea” voted to remove the preconviction collection provision from that bill. Yes, Rep. Daryl Metcalfe (R-Butler County) and Rep. Dan Frankel (D-Pittsburgh) voted together, along with a host of liberals and conservatives and moderates.

On Tuesday, the House Judiciary Committee took up yet another version of this legislation. But instead of moving the bill along with the offending language, as the committee has done in the past, Chairman Ron Marsico (R-Dauphin County) offered an amendment to remove the language that requires DNA collection from people who have been arrested. His amendment replaced it with expansion of the current postconviction collection to include all first-degree misdemeanors and some second-degree misdemeanors.

While some civil libertarians won’t like expanding the post-conviction practice, which is currently for all felonies and a few misdemeanors, stopping across-the-board, blanket DNA collection from people who have not been convicted is, in the words of Vice President Biden, a big (frickin’) deal. Twenty eight states and the federal government collect DNA from people who have been arrested or charged but not convicted, and in 2013, a divided Supreme Court upheld the practice.

The privacy implications of preconviction DNA collection are huge. First, the government must jam a swab into your mouth or pluck a hair from your head or take blood to get a DNA sample. (The swab is the most common form of the practice.) In that practice alone, the government is in choppy privacy grounds in invading the person of someone who is still considered innocent under the law and in doing so without a warrant approved by a court.

Then, the government takes that very personal, very private information and uploads it to a database at the Pennsylvania State Police, which is linked to a query system at the FBI called the Combined DNA Index System, or CODIS. Remember, our DNA contains more than 1,000 identifying characteristics about us. And while the profile created for these databases only contain the markers that identify a person, don’t kid yourself. The infrastructure is in place to store more. If you’re acquitted or never charged or exonerated, you have to go back to court to get your DNA profile out of the database.

Of course, every win comes at a cost. The Marsico amendment maintained and actually worsened language in the bill on “modified DNA searches,” or what are more commonly known as familial searches. You and your family members share DNA. The more distant the relative, the less DNA you share. If this language becomes law, a law enforcement agency can go to the state police and ask for a modified search. PSP would then determine if the evidentiary sample is a close enough match to someone in their database that it could be linked to a family member of that person. If your troublemaker cousin is in the DNA database, you’re in the DNA database.

(If any of my cousins are reading this, apologies for throwing you under the bus.)

Senate Bill 683 contains all sorts of requirements before a familial search can be conducted, but the Marsico amendment added language that prohibits a person from challenging an arrest, conviction, search, or any other investigatory action because the law enforcement agency did not follow the requirements. So the limitations on familial searches are, essentially, meaningless.

This will probably be a contentious issue if and when this bill makes it to the House floor. Familial searches are highly controversial. And in its opinion upholding Maryland’s arrestee DNA law, the Supreme Court suggested that familial searches may be unconstitutional.

This bill still has several steps to go before it is finished, so no one is declaring victory. But the House Judiciary Committee, for the first time in three tries, recognized that the will of the legislature- and, specifically, Republicans and Democrats in the House- wasn’t there to pass a bill to collect DNA from people who have not been convicted of a crime. That’s a BFD.

Read more about Senate Bill 683

Victory! PA House conservatives, liberals, moderates team up against expansion of DNA collection

By Paul Anderson, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

Harrisburg Capitol

For the second consecutive legislative session, a bill that would greatly expand when law enforcement could collect your DNA has failed to pass in the state legislature. The bill would have invested a lot of additional money into the existing state DNA database, and more alarmingly, it would have required state police to collect DNA samples from individuals who were arrested for specific crimes, even if they were never actually charged.

The new collection would have been introduced gradually, covering only people arrested on suspicion of murder in the first year of implementation before expanding to felony sexual offenses in the second. By the third year, however, the mandate expands to arrestees of ALL felonies and certain specified misdemeanors. Even if an arrestee was never charged (let alone convicted) of the crime, the DNA sample would remain in the database unless the person filed a written request for removal and the request was granted.

We strongly opposed this bill. It almost goes without saying that everyone has an expectation that his or her genetic makeup will not be extracted and stored in a government database. To allow the police to collect and store DNA evidence even before charges have been filed violates this bedrock principle of privacy that is crystallized in the Fourth Amendment. (See – Our Work: In The Legislature)

Supporters of this bill got a win in the United States Supreme Court in 2013, when the court upheld Maryland’s arrestee DNA collection procedure as an adequate identification procedure. We—and many other groups and individuals—disagreed with the court’s interpretation of the Fourth Amendment and were incredibly cynical about the claim that arrestee DNA collection was primarily used for identification and not investigation, but because they ultimately interpret the Bill of Rights, our tactic had to change slightly. We were prepared to make a case that even if arrestee DNA collection is permissible under the Fourth Amendment, it still violates the search and seizure provision of the state constitution. The PA Supreme Court has articulated some scenarios where the state constitution affords a higher level of protection that the Fourth Amendment, but it can be a difficult argument to make and sell to legislators.

Fortunately, we never really had to make that argument. DNA collection expansion provoked strong opposition in the House, as numerous representatives expressed serious concerns about how this bill would encroach on people’s privacy. The opposition was truly bipartisan—members who could be described as very conservative, very liberal, or moderate all expressed their disapproval of such an extreme expansion of law enforcement’s power, and many of the representatives who helped defeat the bill in the 2011-12 session were willing to stand once again against the proposed DNA expansion. This opposition encouraged us greatly, and when it became clear that House Leadership was not going to act on the Senate bill, we were optimistic that the fight might be over.

In the final two weeks, however, the Senate revived DNA expansion by amending it into an unrelated online impersonation bill that the House had already passed. This was the Senate’s Hail Mary pass, as it hoped enough House members would be supportive of the online impersonation bill to overlook the DNA language that had been added.

Fortunately, our House allies came through for us again. After the bill passed the Senate, the House Rules Committee quietly removed the DNA amendment as violating the state constitution’s Single Subject Clause before there was any opportunity to debate the substance of the DNA amendment itself. With that, the House ended any fear that the arrestee DNA collection bill would pass this session.

The last two sessions have made it clear that there is definitely motivation within Senate leadership to expand DNA collection within the commonwealth, so we may have to fight a bill like this again next year. Hopefully, the failure to pass the bill in two consecutive sessions sends a strong message to the Senate that this is not a policy that the people of Pennsylvania support, but if the Senate remains insistent that this bill should pass, then those of us in Harrisburg next session will continue our efforts to lobby against this bill and any other proposed policy that would dramatically encroach on the privacy rights of Pennsylvanians.


Paul Anderson is the 2014-15 Larry Frankel Legislative Fellow at the ACLU of Pennsylvania and a third year student at Penn State Dickinson School of Law.