Proposition 69 could threaten privacy of DNA, Donohue asserts in op-ed

Proposition 69 could threaten privacy of DNA, Donohue asserts in op-ed

In a San Francisco Chronicle op-ed, CISAC fellow Laura K. Donohue writes that California's Proposition 69 -- which would expand the state's DNA database to include all those arrested for any felony -- would give the government too much control over citizens' genetic information and provide too few safeguards against misuse.

Our DNA contains the most intimate details of who we are -- including secrets even we don't know about ourselves. Should the government have control over our genetic information, when we have not been found guilty of any crime?

Proposition 69 would do just this. Privacy advocates from across the political spectrum have begun to raise red flags about this potential expansion of government power.

Six years ago, California's DNA and Forensic Identification Data Base and Data Bank Act gave the state the authority to collect the genetic material of felons convicted of violent crimes, such as murder, rape and other sexual offenses. The idea was to establish a database like the fingerprint and criminal record information bank that already exists.

California was not alone in incorporating DNA provisions into its penal code -- every state introduced DNA databases for the most serious crimes. But California's version lacked protections guaranteed elsewhere. Many states retained only the DNA "fingerprint" or profile and destroyed the original sample. California not only kept the full genetic information, but it also has steadily expanded the number of qualifying offenses.

Gov. Arnold Schwarzenegger signed a ballot argument in support of Proposition 69 in July. If approved by voters on Nov. 2, it would unleash the government to gather this information to a degree and among unprecedented numbers of people. Proposition 69 extends collection to every felonious offense and, within five years, requires every adult and juvenile in California arrested for -- but not convicted of -- a felony to provide the government with cells containing his or her complete genetic structure.

Proposition 69 does not stop there. It would apply retroactively, empowering the government to seek out individuals previously arrested for a felony but found not guilty, and require them to turn over their DNA.

The extension to all felony arrests means a radical expansion in the number of citizens deprived of control over their genetic material. Felonies range from computer hacking and shoplifting, to writing bad checks and fraudulently procuring services.

The numbers are significant. In his advance release of Crime in California 2003, state Attorney General Bill Lockyer reported in July that there were just over half a million felony arrests -- not convictions -- in the state. Under Proposition 69, all 507,081 would be required to relinquish their genetic material -- even though statistics show that approximately one third of those arrested would have the charges dismissed or be found not guilty in a court of law.

The idea that you could easily retract your DNA from this felony database is fiction. Once an individual is found to be innocent, he or she could apply to have material removed, but the state would not be required to do so. Following the initial hearing, no appeal would be allowed.

Perhaps of greatest concern is the very real possibility of error. A recent Stanford University study showed that even sophisticated laboratories exhibit up to a 3 percent error rate in the handling and coding of genetic material. Of the half a million citizens from whom DNA would be collected annually, 15,000 might have their name associated with the wrong sample. Even if the error rate was significantly less -- 3/10 of a percent -- there would still be 1,500 people associated with the wrong DNA sample. And it would be extremely difficult for citizens to find out about, much less rectify, such mistakes.

Proposition 69 shrouds the system in secrecy. It prevents citizens or the courts from obtaining information about the structure of the data bank or database, or the software program in operation. Simultaneously, it makes information available to private laboratories, third parties assisting with statistical analysis, auditing boards, attorney general offices, local law enforcement and federal DNA databases.

The safeguards against misuse are inadequate. The initiative limits the ceiling of liability and exempts government employees or third parties from further civil or criminal penalties. It fails to protect against the threat of felony arrests as a tool for interrogation or the use of felony charges as a way to collect DNA from particular populations.

Behind the immediate and obvious privacy concerns lie deeper issues: We don't yet know how genetic information can -- or will -- be used. So we don't know the full extent of the rights we will relinquish.

We know that genes provide information about parentage and familial relationships, propensity for particular diseases, and biological vulnerabilities. We don't yet know the link between genes and personality, how to clone individuals, or how genetic structures can be altered once their content is known. When these and other discoveries are made, and efforts are made to take advantage of them, it will be too late.

Even seemingly innocuous information appears different depending on context: Within two days of the attack on Pearl Harbor, the Census Bureau provided the military with a list of the number of Japanese Americans in specific neighborhoods. In less than 90 days, the Army "evacuated" 110,442 citizens from the West Coast. DNA contains far more information than simple ancestry.

Even as science wrestles with the implications of the Human Genome Project, there will be repeated efforts to create a universal database that catalogs our biological inheritance. But every attempt to expand this awesome power should be met with skepticism and careful discussion about the implications of giving up control over the very essence of our being. We need to think hard about where we draw the line. A system that captures innocent citizens' DNA, lacks transparency, and fails to adequately protect the gathered information against future misuse goes too far.