WhatFinger


Expanse, overreach, and a slippery slope

Supremes make a terrible decision: A DNA swab is nothing like fingerprinting



This morning, Dan wrote a piece in support of the Supreme Court's decision ruling the warrantless collection of DNA is no different from collecting fingerprints. Dan prefaced the article with the suggestion that Libertarian-leaners like myself would probably disagree with his assessment. He's right. I think the Supreme Court's decision is atrocious.
Here are my three main reasons for disagreeing: 1. It clearly violates the Fourth Amendment. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

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I know. I shouldn't expect the court to care about this, seeing as its Obamacare decision trampled multiple other Amendments, but the fact is that DNA is both a part of my "person"andone of my "effects." It grew as a part of me and I own it, as surely as I own my foot or my hand. In his majority opinion, Kennedy claims that we have no expectation of privacy while in custody. That may be true, in terms of being seen, photographed, etc, but I certainly still have an expectation of ownership, and I have rights which protect my physical body from being violated. If you don't think a swab in the mouth violates your physical person, ask yourself; "What if they were putting something else in there?" When convicted of a crime and incarcerated, yes, most of those protections are forfeited. However, simply being accused of a possible transgression is nowhere near sufficient cause to strip away my pre-trial rights. What happens when I'm found innocent? Will the government be forced to destroy that evidence, or will it be sitting in a database somewhere, ready to be used against me in the future? That brings us to.... 2. My fingerprints don't contain my entire genetic code. The building blocks of everything I am as a person are contained in every drop of my blood, and in every "swabbed" cheek cell. From it, the police, feds, or government can determine not just my identity, but my health status, my genetic relations, and my entire family ancestry. Currently, there are scientists hard at work to find the "gay gene," as well as the"conservative gene," and the "liberal gene."If those genetic markers are found, they'll be readily, and easily, identifiable in every collected sample. It's easy to imagine a "Minority Report" style future where your perceived guilt or innocence is influenced by what the authorities determine you're genetically predisposed to do. The potential for abuse is virtually limitless. ...Which is one of the main reasons conservatives were so condemning of Obamacare. A genetic workup created by law enforcement carries exactly the same potential for abuse that is inherent in the Affordable Care Act. Conservatives railed against the ease with which the government could access your genetic and medical info under Obama's health care law, but today many are supporting this decision. Why, because cops are the good guys? Sorry, that's just not a solid reason. These types of federally accessible databases were wrong under the ACA, and they're wrong here. They're just too easy to exploit, and..... 3. We know we can't trust the government to handle this information properly. Let's say, for the sake of argument, that the above concerns were addressed. Imagine a hypothetical scenario where we'd dealt with the Fourth Amendment concerns, we have a system that promises to destroy the samples if you're proven innocent and accessing the database will...I don't know...require an intensely difficult-to-justify warrant. Are we really naive enough to believe those rules would be followed? If the last month has proven anything, it's that we simply can't trust our government with this level of power. The DOJ is tapping reporters' phones, the IRS is targeting people based on their political beliefs, and a veil of arrogance and secrecy has been tossed over all of it. If, in those cases, the feds are so dismissive of the First and Fourth Amendments, why should we assume genetic and medical databases will be held to a higher standard? The bottom line is: If we can't halt our government's current overreach, why in the world would anyone - right or left - be willing to grant it the tools to expand its intrusion? This Supreme Court decision does nothing but grease an already slippery slope.


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