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Editorial: DNA and Privacy in Vermont

The intersection of technology and law has been the scene of numerous collisions in recent years, and often it has been unclear which had the better claim to the right of way. A sharply divided Vermont Supreme Court decided just such a case last week, ruling that the routine collection of DNA samples from defendants charged with felonies is unconstitutional. We think the outcome is right, although not all the relevant issues have been addressed.

A little background is in order here. Vermont began collecting DNA samples in 1998 from those convicted of violent crimes. Seven years later, the law was expanded to include those convicted of any felony or attempted felony. Then in 2009, the Legislature extended the mandate to provide DNA samples to those arraigned on a felony charge for which a judge has found probable cause — that is, those who have been formally charged, but not yet convicted.

It was this iteration of the law that the justices last week ruled to be in violation of the Vermont Constitution’s provisions governing searches and seizures. It’s worth noting that these guarantees are more stringent than those contained in the Fourth Amendment of the U.S. Constitution. This is an important distinction because the U.S. Supreme Court has upheld a statute similar to Vermont’s that was challenged on Fourth Amendment grounds.

In a 3-2 ruling, the majority of the Vermont court basically held that the privacy interests of defendants who have not yet been convicted outweighed the state’s interest in collecting the samples and analyzing them. The justices noted that if the accused are eventually convicted, they would have to provide the sample anyway. And if not, the law requires that the sample and the analytic record drawn from it be destroyed — a recognition by the Legislature of the “limited weight of the State’s interest” in collecting the samples.

That seems about right to us. There are only two possible reasons to take samples from those charged and awaiting trial. One is to confirm that defendants are who they say they are, and the second is to compare their DNA profile with those taken from the scenes of crimes not yet solved or that are committed in the period between arraignment and trial. More conventional means of establishing identity have been used for years — fingerprints and photographs — and have proven effective. And the presumption of innocence requires that defendants who have not been convicted of any crime not be subjected to what amounts to a warrantless search when they are not suspected of committing any specific crime other than the one they are charged with.

One key issue not addressed in the decision — and which is a question to be sorted out another day by the courts or the Legislature — is the manner and duration of storage of DNA information. Vermont’s statutory program creates a DNA databank, containing DNA samples, and a DNA database, which contains profiles derived from the samples. These profiles are shared with a national database maintained by the FBI. The profiles are derived from analyzing the samples at 13 standard locations within the subject’s chromosomes, a process that yields highly specific individual identification without having any known association with disease or other personal medical information.

But as the court’s majority noted, DNA samples themselves contain a “massive amount of unique, private information ” that goes beyond identification. This could include health status; risk for developing certain diseases; and perhaps sexual orientation and even propensity for certain kinds of conduct. Prohibitions exist in Vermont’s law against misuse of this information. Nonetheless, it is cause for concern when government collects, and has the ability to analyze, vast amounts of personal information about individuals and potentially about their family members. It is a legitimate question what purpose is served by retaining the original DNA samples once the profile — the identification tool — has been derived. It seems to us that DNA analysis is such a powerful tool that it presents a strong temptation to misuse it, a temptation that could be removed without impinging on legitimate law enforcement needs.