PD Editorial: Even a suspected felon deserves DNA privacy

A divided California Supreme Court this week ruled that police may collect DNA samples from people they arrest on suspicion of a felony. Even if arrestees are neither charged nor convicted, they must surrender their genetic privacy.

Just because a court says something is permissible doesn’t mean it is required. State lawmakers should hold a frank, public conversation about restoring privacy protections to these Californians whose only crime is having a police officer suspect they did something wrong.

The current DNA collection rules arose from 2004’s Proposition 69. After collection, the sample goes into a statewide database that investigators use to find matches. The state offers a way for people who are acquitted to have their DNA removed from the database, but it is a cumbersome process. Most people lack the time and persistence to follow that bureaucratic labyrinth to the end.

More than half of states have some form of DNA collection law, but California’s is one of the most aggressive. Other states, for example, wait for a charge or a conviction to collect DNA. They also destroy the samples and remove them from any database if the person isn’t convicted.

The U.S. Supreme Court ruled a few years ago that collection doesn’t violate the U.S. Constitution. Now the California Supreme Court says it’s consistent with the state constitution, too, which has even stronger and more clearly stated privacy protections.

We disagree with those rulings, and so did dissenting justices on both courts. In this week’s state decision, the court split 4-3. At the U.S. Supreme Court, the split was 5-4. The dissenters warned that if the state could compel some innocent people to give up their genetic privacy, it could demand DNA from anyone.

Supporters of DNA collection misleadingly liken it to collecting fingerprints. DNA is much more than a print. It is a record of who we are. It can reveal propensities for disease, genetic disorders and everything else in our cellular makeup. No innocent person should have to turn that over to the government.

Back in 2004, Californians voted for Prop. 69 almost two-to-one. We suspect it might not fare as well today. People know a lot more about the science of DNA and have seen examples of government - and corporate - overreach and failure to keep personal data secure.

Californians also know a lot more about the racial and ethnic biases that tilt the system against certain groups. African-Americans are disproportionately arrested, and they therefore are disproportionately represented in the state DNA database. That makes them more likely to become a suspect again when a partial match or a false positive occurs.

Ultimately, one-third of people arrested are never convicted.

Just a few years ago, Sonoma County Jail correctional officers tasered an inmate who refused to give up his DNA. His story began when he was pulled over for not wearing his seat belt. Things escalated from there.

Lawmakers had hedged their bets by passing a law with better privacy protections, but it kicked in only if the Supreme Court overturned the law. Now, they ought to revisit those ideas not because they are worried about a court ruling but because Californians should not have to give up their genetic privacy if they haven’t done anything wrong.