Open Season On DNA May Not Be Far Away
Atlanta Journal Constitution | October 19, 2005
By BOB BARR (Former U.S. attorney and congressman)
Want to keep your DNA
out of the hands of the government? Think your DNA is too private to be forced
to give to government bureaucrats to analyze, catalog, share, retain
indefinitely and possibly abuse? Tough luck.
If Sen. Jon Kyl (R-Ariz.) and Rep. Mark Green (R-Wis.) have their way, every person in this country who has the misfortune of being arrested for any federal offense, or merely "detained" by the federal government, will be forced to give a DNA sample to the government, to be used for whatever purpose it wants, whenever it wants.
Hard-liners might say "Hey, that's fine; if you've been picked up by the feds, you've surrendered your right to keep your DNA private." It's not quite that simple.
There are more than 4,000 federal offenses on the books, a number that is constantly growing. Those offenses include many misdemeanors, as well as many regulatory dictates that involve no harm to anyone. Also, and most important, don't forget that being arrested — much less merely detained — is not proof that you are guilty of anything.
Congressional proponents of the federal database scheme are unmoved by such "technicalities." For them, if a federal agent picks you up for any reason, even if you're innocent, Uncle Sam has a right to your DNA, by force if necessary.
While some advocates of forced DNA databasing argue it is no more intrusive than taking a fingerprint, DNA is far more than a mere reflection of a physical characteristic. Your DNA not only identifies you physically; it also could tell whoever possesses it a great deal about your biological makeup, health, propensity for certain diseases, aspects of your ancestry and more.
Aside from the obvious argument that if you arrest a person, photograph them and take their fingerprints, you already have information sufficient to identify them and do not really need all the additional information gleaned from a DNA sample, consider the vast universe of persons who would be subject to this intrusive requirement if the Kyl-Green legislation becomes law.
Persons detained at a political gathering — such as occurred last summer at both the Republican and Democratic national conventions — for nothing more than expressing their political views would find their DNA forever enshrined in government files. Similarly, citizens who exercise their Second Amendment rights by purchasing firearms, but make a mistake in filling out one of the required federal forms, would be forced to submit their DNA information to a federal agent.
A landowner who dares exercise dominion over his own property, but runs afoul of the myriad federal wetlands, endangered species or Environmental Protection Agency regulations, would be forced into the DNA Hall of Shame. The hapless air traveler who somehow offends a Transportation Security Administration employee's sense of decorum, and is thereby subject to detention, would be roped into the DNA database.
Misplace or misstate a deduction on your tax return? You go directly to DNA jail. The list is as long as the humongous Code of Federal Regulations, the Internal Revenue Code and the Federal Criminal Code combined.
If we were talking about a database that included DNA information on persons convicted of certain serious offenses, where it is important to retain such information for crime scene identification based on bodily fluids — something the government is already permitted to do — the host of privacy questions would not be at issue. But maintaining a forced DNA database of persons who may never be charged with or convicted of a felony represents an unnecessary and abusive invasion of privacy.
Even the mechanism the federal legislative proposal provides for remedying an improper collection of DNA is inadequate. In typical Big Government fashion, the Kyl-Green proposal makes it easier for the bureaucrats and harder on the individual. The aggrieved person has to "opt out" after his or her case is won or dismissed, rather than requiring the government to track the progress of its own case and affirmatively expunge the information when the person is exonerated or not charged.
This latest bad idea making the rounds in Congress is strikingly similar to another proposal passed last November by California voters. The only difference here is that the California initiative was an open measure on a public ballot.
The current congressional proposal, on the contrary, was slipped quietly into a larger, unrelated piece of legislation that most senators and House members were strongly predisposed to support — reauthorization of the Violence Against Women Act. At least California was honest and upfront with its proposal.
•Former U.S. attorney and congressman Bob Barr practices law in Atlanta.
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