EFF Objects to Un-Warranted Police DNA Searches

The Electronic Frontier Foundation is arguing that law enforcement officers should not be able to collect someone’s DNA or perform searches in a consumer-facing genealogy database without first obtaining a proper warrant. The organization makes the claim in an amicus brief in the Iowa Supreme Court, which was filed in conjunction with the ACLU and the ACLU of Iowa.

The brief specifically concerns the case of State v. Burns, which stems from a murder that occurred in 1979. The police did not have any leads until 2018, when they partnered with a company called Parabon Nanolabs to build a DNA profile of the suspect using evidence gathered at that crime scene. That profile was then uploaded to GEDMatch’s consumer database, which flagged three brothers as potential matches. The police put the brothers under surveillance, and arrested Jerry Burns after pulling his DNA from a discarded straw.

The problem, according to the EFF, is that that process violates the Fourth Amendment of the US Constitution, which protects US citizens from the unreasonable search and seizure of their personal property. In that regard, the US Supreme Court has ruled that those protections do not extend to the trash (insofar as there is no expectation of privacy with items that have been abandoned). However, the EFF counters that the same is not true with our DNA, largely because it contains so much personal information (from medical records to hair color) that it is impossible for someone to abandon their interest in their own genetic material.

As it relates to criminal investigations, the EFF also notes that it is impossible to avoid leaving DNA behind. Since people are constantly shedding hair, skin cells, and other bits of material, the concept of privacy would become meaningless if that DNA is not protected in some way.

Genealogy databases, meanwhile, take that a step further and allow the police to identify an individual even if that person’s DNA is not stored in that database, extrapolating from the data that is available to find relatives with a similar genetic profile. In doing so, they strip people of their right to privacy, since their biometric profile is available with or without their consent.

As it stands, more than 26 million people have already submitted their DNA to consumer-facing genealogy sites. GEDmatch, in particular, has 1.3 million users (or 0.5 percent of the US adult population), from which it is possible to identify 60 percent of all white Americans.

That’s ultimately why the EFF believes that DNA should be subject to Fourth Amendment protections, regardless of where that DNA was collected. The organization also warned that DNA matches have led to false convictions in the past, since DNA can spread and implicate someone that never set foot at a given crime scene.

The amicus brief argues that State v. Burns violates Article I, Section 8 of the Iowa state constitution, in addition to the Fourth Amendment. The EFF has previously objected to a policy proposal that would give the Department of Homeland Security sweeping abilities to collect the DNA of immigrants and the US citizens that sponsor their arrival.

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April 14, 2021 – by Eric Weiss