Jeffrey Rosen: What if the FBI put the family of everyone who has ever been convicted or arrested into a giant DNA database?
Jeffrey Rosen, a professor at George Washington University Law School and the legal affairs editor at the New Republic, writes about genetic privacy at Slate. Rosen has written several books on privacy and recently discussed privacy, free speech and the gatekeepers of the Internet in the New York Times Magazine. Rosen writes about the increased calls by law enforcement for “familial searches” of DNA databases. Police do these searches “looking not for perfect matches to convicted offenders but for near matches, in the hope of using them to identify a relative who might have committed the crime.”
[The district attorney of Denver, Mitch Morrissey,] returned to the United Sates and pitched the FBI, urging the agency to expand the search capacity of its Combined DNA Index System for “familial searches.” He met resistance from Thomas F. Callaghan, who was then head of the FBI laboratory’s CODIS unit, which encompasses the national DNA database. Callaghan is a former forensic scientist with the Pennsylvania State Police who has a doctorate in molecular biology; he balked at Morrissey’s suggestion. His concern was that if the FBI began doing familial searches without congressional or judicial authorization, there could be a political and legal backlash over privacy and civil liberties that would imperil the federal government’s recent decision to begin storing DNA samples not merely from convicted felons but from anyone who is arrested. […]
[T]he FBI decided not to reconfigure the national CODIS software to allow familial searches. Nevertheless, current FBI policy allows individual states to decide whether to proceed with familial searches on their own. As a result, last April, California Attorney General Jerry Brown (who is considering a run for governor) began to allow familial DNA searching in the largest state database in the country. The decision may provoke precisely the legal and political backlash that Callaghan predicted. […]
All of this could mean a slew of legal challenges on the horizon—not only over familial searching but also over the decision to include people who have been arrested in DNA databases at all, as 14 states and the federal government have done.