'A World of Difference?': Law Enforcement, Genetic Data and the Fourth Amendment

Abstract

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA of an identified suspect from a database or, more commonly, by matching crime-scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Although both efforts would probably be called “searches” under common parlance, until recently they were clearly not searches for fourth amendment purposes, because the Supreme Court has defined that word in terms of “expectations of privacy society is prepared to recognize as reasonable” and has construed that phrase narrowly, without reference to society’s actual views. The empirical study presented in this article, which attempts to gauge those views, suggests that even the Court’s recent decision in Carpenter v. United States, which has expanded the definition of “search” to new terrains, is antithetical to societal norms as they apply in the genetic investigation context. In fact, our respondents considered law enforcement access to genetic information to be as intrusive as, or more intrusive than, searches of bedrooms, text messages or emails, not only when one’s DNA is held by healthcare providers, but also when it is obtained from direct-to-consumer genetic testing companies and public genealogy websites. Our research also suggests that the location of genetic information, rather than its nature or the purpose for which it is acquired, is the primary driver of these intrusiveness ratings. Based on this research, we argue that both police access to non-governmental genetic databases and police use of covert methods to collect DNA in the hope of matching crime scene DNA require judicial authorization, although not necessarily a traditional warrant. More broadly, we argue that empirical data about the public’s privacy concerns surrounding law enforcement’s collection of and access to genetic data should be an integral consideration in judicial determinations of how these activities should be regulated by the Constitution.