NEW YORK (GenomeWeb News) – The United States is planning to expand the collection of DNA samples to include all people who are arrested or detained under federal authority, as well as any non-US citizens who are detained, according to a Department of Justice proposed rule.
In an effort to advance the ability to use DNA information to solve a broader array and volume of crimes, the Justice Department is planning to implement amendments that would expand federal DNA collection policies under the primary law covering DNA analyses in the Federal Bureau of Investigation’s Combined DNA Index System.
All 50 states already allow collection and analysis of DNA samples from convicted state offenders, but until recently, the collection of DNA samples by federal authorities was limited.
The DNA Analysis Backlog Elimination Act of 2000 initially authorized DNA collection only from persons convicted of certain “qualifying” federal, military, and District of Columbia offenses. This authority was later expanded by several subsequent acts, including the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection Safety Act of 2006.
The proposed rule would implement aspects of these two acts under the DNA Analysis Backlog Elimination Act of 2000, which would direct US agencies that arrest or detain individuals “to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States … for purposes of analysis and entry into the Combined DNA Index System.”
The rule would limit the collection of samples to “individuals from whom an agency collects fingerprints,” and would give the Attorney General the latitude to approve certain exceptions or limitations about who may obtain samples.
The DOJ published the DNA Sample Collection rule in the Federal Register on Friday and is currently taking public comments. The rule has been called an invasion of privacy and an unwelcome expansion of police powers by the American Civil Liberties Union.
The new rules may reflect an “eagerness to collect a growing amount of private information about innocent people,” ACLU legislative counsel Jesselyn McCurdy told GenomeWeb Daily News in an e-mail. “This completely undermines the presumption of innocence in the American criminal justice system,” said McCurdy, who believes this kind of DNA collection “is likely to increase racial profiling and discrimination against people of color.”
McCurdy also believes that the law, or the application of the law, may prove to be unconstitutional.
“What Congress and the DOJ have done is once again skirt around the edges of the Fourth Amendment search and seizure requirements,” she told GWDN.
The DNA fingerprinting proposal is similar to an ongoing program in the UK, where there is a DNA database of samples from criminals, suspects, and crime scenes, which began in the mid-1990s.
While privacy issues have been raised in the UK over the law, there now is some discussion that the entire population of the UK should be sampled and stored in a massive UK DNA database. This sweeping project also would take DNA samples from any visitor to the UK who plans to stay in the country longer than one week.
Senator Jon Kyl (R – Ariz.), who is listed as a co-author of the 2006 US law, believes this expanded power will enable the government to solve many crimes that are otherwise difficult to prosecute and to prevent crimes not yet committed.
“The regulations will save lives, prevent crimes and bring justice for victims and their families,” Kyl said in a statement on Friday.
Kyl also does not see the worries about privacy as warranted. “Most crime labs don’t even have the equipment to extract medically sensitive information from DNA samples, and it would be a federal offense for any lab employee to misuse a DNA sample in this way,” he said.
The proposed rule does not include information on how long federal authorities will retain DNA samples or what would happen to these samples in cases where detainees are later found innocent or if charges against them are dropped.
While the DOJ lays out general rules for how the policy is to be implemented and how samples are to be collected and handled, it is left up to the individuals who have been arrested or detained to clean their records if they are not convicted of a crime.
In order to have DNA profiles expunged from the database, it is incumbent on individuals to obtain proof that their underlying arrest did not result in a conviction, or that the underlying conviction was overturned, and then to submit that documentation to the appropriate agency, the DOJ said.
The DOJ will hold an open a comment period for 30 days on the new regulations.