In 2015, genes have many uses.
Soon after every baby in California is born, a hospital worker extracts and logs its genetic information. It will be tested for diseases and then stashed permanently in a warehouse containing a generation of Californians’ DNA.
For those charged with a felony – or, potentially, just arrested – a sliver of genetic code will be taken and placed in a state database that has grown rapidly in the last decade.
As scientists have mapped the personalized blueprints contained in each strand of DNA, the government has been collecting and storing reams of genetic material to combat disease and capture criminals. In seeking to shape when public agencies can take genetic information and how they can use it, lawmakers face a tension between individual privacy and public health and safety.
“You want to make sure government isn’t collecting too much DNA, but you also recognize it is the modern fingerprint,” said Assemblyman Mike Gatto, D-Los Angeles, though he differentiated genetics from fingerprints: “You’re taking the very stuff of life.”
It begins with a prick to the heel. Blood from every baby born in California is screened for diseases such as sickle cell anemia and severe combined immunodeficiency. Every state has a similar program. Where California differs is its policy of storing dried blood on cards indefinitely and, for a fee, loaning them out for research.
The advantages of immediately identifying and treating diseases are indisputable. What makes Gatto and privacy advocates nervous is the knowledge that the government can hold on to that information and share it without consent. Security concerns intensify those fears.
“I think it’s only a matter of time before there’s a high-profile hack, and then somebody would have access to your data,” Gatto said. “As we increasingly discover genes for everything from alcoholism to a propensity for violence, someone could interfere with your ability to get a job by saying, well, that person has the alcohol propensity gene.”
Gatto has a pair of bills that would allow parents to have their babies’ samples destroyed, and dictate when police officers can glean DNA. With the support of district attorneys, Assemblyman Jim Cooper, D-Elk Grove, has a bill allowing DNA collection from people convicted of certain misdemeanors.
While the Department of Public Health emphasizes that the infants’ information is kept anonymous and never assembled into a full genetic profile, skeptics point to a series of studies in which researchers identified supposedly anonymous donors to public genetics databases.
“DNA is a strong identifier of a person, and there is always a theoretical possibility of identifying someone,” Yaniv Erlich, an assistant professor of computer science at Columbia University, wrote in an email. He added that California “mitigates the risk of harm” by not storing some details and penalizing unauthorized release of any data.
Critics also question whether researchers can get their hands on samples. Texas shared newborn samples with a military laboratory hoping to enhance its forensic capabilities, alarming those who said the data should be used strictly for medical research.
“As we build out criminal DNA databases in California and nationwide,” asked Jennifer Lynch, a senior staff attorney at the Electronic Frontier Foundation, “are we going to get the point where law enforcement says, ‘Well, we have this giant repository with the information of everyone born in California in the last 30 years, and that’s a huge treasure trove’?”
Just as the newborn database’s benefits are firmly established, DNA has become indispensable for law enforcement.
Sacramento District Attorney Anne Marie Schubert called forensic DNA “the greatest tool ever given to law enforcement to find the guilty and to exonerate the innocent.” Since Proposition 69 in 2004 empowered law enforcement to sweep up samples from anyone arrested for a felony, the number of people in a Department of Justice database has grown substantially.
“That changed how we deal with DNA in this world,” Schubert said.
But the program is in dispute. The California Supreme Court will soon take up a case challenging DNA collection from people who have not been charged or convicted. Privacy advocates warn about overly broad data collection that ensnares the innocent and the guilty alike.
“Once you start collecting DNA before a person is even convicted of a crime, you’ve started down a road where you’ve erased any balance between the legitimate needs of law enforcement and individual rights,” said Jeremy Gruber, president of the Council for Responsible Genetics.
Speaking from years of experience in the Sacramento County Sheriff’s Department, Cooper said such fears are unfounded. He argued that most Californians will never enter the database.
“If you’re not out committing homicides or sex crimes, your DNA’s never going to pop up,” Cooper said. “So I think if you get arrested and you’re involved in this, there’s a certain right that you lose.”
Gatto’s bill would create new rules if the California Supreme Court strikes down Proposition 69’s mandatory collection provisions. It allows DNA collection only after a probable cause hearing and would automatically erase from the statewide database people who are not convicted.
“People who are innocent of crimes, they should have the right to have their genetic information be as private as they want it,” Gatto said.
The case follows the U.S. Supreme Court’s 2013 ruling that swabbing the DNA from someone arrested for probable cause was legal, akin to taking fingerprints. Justice Antonin Scalia warned in a vehement dissent of the long-term consequences.
“As an entirely predictable consequence of today’s decision,” Scalia wrote, “your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
While imposing limits on collection in some areas, Gatto’s bill enables DNA collection after misdemeanor convictions that would disqualify someone from owning a firearm.
Similarly, Cooper’s bill would have law enforcement collect samples not just from felony offenders but from people who are convicted of misdemeanors, such as fraud or drug possession, that were collection-triggering felonies until voters reduced sentences by passing Proposition 47 in 2014.
The change has dammed the flow of DNA into the state database, prosecutors say, in the process reducing their ability to make connections to previous crimes and find case-cracking leads. They note that repeat offenders tend to have long records: If a person’s DNA is already logged because of a less serious offense, investigators can identify that person when he breaks the law again.
“Whether it’s theft, possession of drugs, we’ve been able to tie them back to some of the most heinous crimes,” San Bernardino County District Attorney Mike Ramos said at an event announcing Cooper’s bill.
None of this is abstract for Gatto. His father was shot dead by a home intruder last year. As Gatto awaits a break in the case, he is working to regulate the very technology that could bring his father justice.
“For families like mine, who are waiting for breakthroughs that can be caused by DNA and similar evidence, it can be a very long, painful wait if these technologies are prohibited by the courts,” Gatto said. “The right balance is what’s critical here.”