The Electronic Frontier Foundation is asking a court considering the legality of DNA collection upon arrest to weigh the findings of the ENCODE project in its decision. In a letter to the US Court of Appeals for the Ninth Circuit, the EFF says that the court's panel opinion in Haskell v. Harris "relied heavily on the assumption that a DNA profile does nothing more than identify a person" and that the 13 CODIS markers commonly used in forensic cases comprise "junk DNA" that is "not linked to any genetic of physical trait."
EFF argues that the ENCODE findings — "which determined that more than 80 percent of DNA once thought to be no more than 'junk' has at least one biochemical function" — contradict the court's opinion and should be considered in its final decision.
EFF believes that DNA collection is a form of warrantless search and seizure and is therefore unconstitutional under the Fourth Amendment. "The ENCODE project results reinforce the point that DNA contains important information about who we are, who we will be and our relationships with other people. That data should not be in the hands of the government without probable cause to believe it is linked to a crime," the organization says.
However, as Double Helix Law points out, "deciphering the ENCODE papers' descriptions of the data is no easy task, and EFF's lawyers do not seem to be up to it."
David Kaye says that EFF's claim that 80 percent of DNA once thought to be "junk" has a biochemical function "is not a fair characterization of the findings" and is based primarily on a "misleading news article" in The New York Times rather than the papers themselves.
"After the judges consider the ENCODE papers (by having their law clerks read them?), will they be better informed about the actual privacy implications of the CODIS loci than they were before this excursion into this realm of the bioinformatics? I would not bet on it, but maybe I am growing cynical," Kaye says.
Meanwhile, the same week that the ENCODE papers were published, a study was published in the Journal of Forensic Sciences that found that none of the CODIS markers are within exons and "no CODIS genotypes are associated with known phenotypes."
The authors of the study, from the University of Pennsylvania and the Duke Institute for Genome Sciences & Policy, say at Penn Medicine's News Blog that the ENCODE publications, "rather than undermining our findings, support the notion that much of the genome has 'association' with varying genome function, including the regions containing the CODIS markers."
However, the ENCODE research "makes no reference to the potential importance of short tandem repeats within functional genome elements, which would implicate CODIS markers," they note. Further, "there remains no evidence that repeat-length genotypes at these markers correlate with actual gene function or genome regulation."
The authors "worry that the headlines associated with the ENCODE publications carry foreseeable risks of signaling to non-scientists in the legal profession who are trying to make sense of the information decipherable from CODIS profiles that our understanding of these markers is fundamentally altered from that of just a week ago. That is just not the case."