By Tim Welch

Last month, the FBI drastically changed its policy on whose DNA will be entered into and stored in the largest forensic DNA database in the world.  Previously, the FBI only collected DNA samples from convicts, i.e., people who have been declared guilty by a judge.  The FBI now plans to join 15 states in collecting DNA samples from people who have only been arrested or detained.  Law enforcement officials claim that including people in forensic DNA databases who have either been released without charges or declared not guilty in court will ultimately put more criminals in jail.  But the federal government's decision raises privacy issues as well.

Forensic DNA databases exist at the local, state, and federal level.  When a person is convicted of a crime, his or her DNA code is entered into a computer system, such as the Combined DNA Index System (CODIS), which allows investigators to compare biological specimens collected at crime scenes to DNA profiles of convicted criminals already stored in the database.  Even if no match is found, investigators can cross-check anonymous samples from different crime scenes to hopefully shed light upon unsolved crimes.  Law enforcement officials claim that their forensic DNA databases have helped convict thousands of criminals and have exonerated hundreds of innocent people who were wrongfully convicted.

A major use of forensic DNA databases has always been to identify and track violent criminals—such as rapists or murderers—who are entered into the databases under the assumption that they may have committed previous crimes, or are likely to commit a similar (or worse) crime again.  But including people who have not been convicted in court departs from this reasoning in that the law should not suspect them of any prior or future wrongdoing.

Then there is the question of what happens to the DNA after someone who was arrested and swabbed is acquitted and released.  Many states that allow DNA to be taken from people who have not been convicted in court require the DNA records to be expunged upon release without charges or acquittal in court.  However, the law isn't always so clear.  One Texas law (Tex. Gov't Code Ann. § 411.1471) states that upon acquittal or dismissal of a case against a defendant, the court must order the DNA record to be destroyed.  But another Texas law (Tex. Gov't Code Ann. § 411.151) details a process by which DNA records are expunged per petition of the individual whose DNA is in the database.  It could be easy for the law to be interpreted such that DNA samples are kept indefinitely without conviction.  If a person has been not been charged or was acquitted in court, law enforcement authorities should not have the right to control that person's DNA.  If a DNA sample remains in a forensic database against an innocent person's will, it is in violation of that person's privacy rights.

The FBI wants to increase the growth rate of its DNA database 15-fold by 2012.  DNA databases can help solve crimes, but the United States needs to make sure that innocent people have control over where their DNA is stored.  People have the right to decide what is done with their genetic material, which can be considered the most basic form of individual property.