blog.bioethics.net

Stray genetic material and expectations of privacy

Popular Mechanics recently ranked what are, in its opinion, the 10 most prophetic sci-fi movies ever. Number 1? The genetics-focused drama Gattaca. As the mag notes, "The technology on display in the movie is still years away, but the central message—that genetic oppression can become institutionalized before anyone notices—is increasingly relevant."

One of the plot elements in Gattaca is that a person's stray genetic material -- hair, saliva, whatever -- could be picked up by someone else and used as evidence against them.

And, as it turns out, that's actually happening.

From Amy Harmon's piece today in the New York Times:

On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed.

The practice, known among law enforcement officials as “surreptitious sampling,” is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Mr. Gallego’s trial on murder charges, scheduled for next month, is the latest of several in which the defense argues that the police circumvented the Fourth Amendment protection against unreasonable search and seizure.

Critics argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds in the course of daily life, police officers are exploiting an unforeseen loophole in the requirement to show “probable cause” that a suspect has committed a crime before conducting a search.

“The law cannot tolerate such back-door methods, which seize something that any reasonable person expects to remain private,” Mr. Gallego’s lawyer, David Lynch, wrote in a motion to suppress the DNA evidence extracted from the cigarette butt.

The privacy implications of surreptitious DNA sampling may extend beyond individual investigations. The police, critics say, could collect DNA deemed “abandoned” from targeted individuals and monitor their movements even if they are not suspected of committing a serious crime. Innocent people whose DNA turns up unexpectedly may find themselves identified by a database file that they did not know existed.

“Police can take a DNA sample from anyone, anytime, for any reason without raising oversight by any court,” said Elizabeth E. Joh, a law professor at University of California, Davis, who studies the intersection of genetics and privacy law. “I don’t think a lot of people understand that.”

And, just so you know, a Massachusetts court has ruled that you have no reasonable expectation of privacy when you expectorate.

-Greg Dahlmann

film still: Columbia Pictures