Privacy issues with DNA databases and retention of individuals' DNA information by law enforcement agencies: the holding of the European Court of Human Rights case S and Marper v. United Kingdom should be adapted to American Fourth Amendment jurisprudence

Abstract

When law enforcement agencies collect, retain, and use individuals' DNA information in DNA databases for crime prevention purposes the presumption of innocence is reduced for those individuals. Collection and use of DNA information has benefits, greatly assisting law enforcement agencies in their criminal investigations. However, problems arise when DNA information is retained and used for individuals who have been acquitted, have had the charges pressed against them dropped, have been arrested for crimes short of violent or sexual felonies, or have served out the term of their sentence. While federal law has expungement provisions for individuals who are ultimately not convicted, state laws on expungement are often silent or inadequate. In order to prevent the presumption of innocence from being significantly eroded by the improper use of DNA information, US courts should adopt the test elaborated in the European Court of Human Rights case S and Marper v. UK, which may require law enforcement agencies to expunge their databases of DNA information of individuals depending on the individuals' statuses as arrestees, non-convicts, convicts, or ex-convicts, and in consideration of the severity of the offense alleged which provided the law enforcement rationale to extract the individuals' DNA. Adoption of the Marper test will allow US courts to balance the interests of the government in crime prevention and criminal investigation against the privacy interests of the individual citizen with a degree of far greater nuance than the sledgehammer alternative, namely, the universal DNA database proposed by Yale Law School Professor Akhil Amar and Paul Monteleoni.