SAN FRANCISCO — Plaintiffs suing the California Justice Department over its retention of DNA samples from people arrested but not convicted of felonies said erasing private evidence of the innocent should be made an automatic requirement.
“Our DNA contains our entire genetic makeup—private and intensely personal information that maps who we are and where we come from,” Jamie Lee Williams, staff attorney for the Electronic Frontier Foundation (EFF), told the Northern California Record. “The state’s failure to automatically expunge DNA samples and profiles from the hundreds of thousands of Californians who were not ultimately convicted of a crime is unconstitutional. It’s time for the state to start honoring the privacy rights guaranteed to all Californians.”
Persons arrested for a felony in California are required to provide law enforcement officers with a DNA sample, a swab of saliva taken from inside the mouth. The samples are put into a computerized file called a CODIS.
If the arrested person is proven innocent they have the right to submit an application to have the DNA sample removed, but few people bother. Over the past 10 years over 700,000 samples have been taken and only 1,500 such requests made.
The remaining samples remain on file.
Critics of the system say it violates right to privacy laws.
Last April, the California Supreme Court rejected an attempt to declare the process in violation of federal Fourth Amendment (search and seizure laws).
On Dec. 10, the EFF and other San Francisco-area-based social activist groups, including the Equal Justice Society (EJS) and the Center for Genetics and Society (CGS), filed suit in the San Francisco Superior Court against the State of California. All three nonprofits have mission statements that say they are advocates for the responsible use of genetic, reproductive and digitally-acquired information.
The lawsuit alleges the Justice Department's DNA procedure violates privacy requirements of the California Constitution intended to prevent overbroad, draconian collection of personal data.
A Justice Department spokesperson declined to comment on the suit, simply saying officials were looking into the complaint.
Marci Darnovsky, executive director of the CGS, said one-third of people arrested for felonies in California were never convicted.
“The government has no legitimate interest in retaining DNA samples and profiles from people who have no felony convictions,” she said in a statement. “It’s unconstitutional for the state to hold onto such material without any finding of guilt."
Critics of the program also contend it targets the poor and minority groups, including African Americans who are subject to racial profile arrests.
“The over-expansion of the CODIS database and California’s failure to promptly expunge profiles of innocent arrestees exploits and reinforces systemic racial and socio-economic biases,” Lisa Holder, EJS interim director, said in a statement. “We want the Court to recognize that California’s DNA collection and retention practices are unfairly putting already vulnerable poor communities and people of color at even greater risk of racial profiling and law enforcement abuse.”