DEPARTMENT OF JUSTICE

Preservation of Biological Evidence Under 18 U.S.C. § 3600A

Docket No. OAG 109
A.G. Order No. 2762-2005
Interim Rule With Request For Comments

COMMENTS OF THE ELECTRONIC PRIVACY INFORMATION CENTER

In an April 28, 2005 Federal Register notice, the Department of Justice (“DOJ”) published an interim rule to implement 18 U.S.C. § 3600A, which requires the government to preserve biological evidence collected during the investigation or prosecution of a federal crime for which an individual has been imprisoned.¹ Pursuant to the notice, the Electronic Privacy Information Center (“EPIC”) submits these comments to urge the DOJ to define how existing privacy obligations affect the implementation of the Innocence Protection Act and to prohibit the use of material stored under 18 U.S.C. § 3600A (hereinafter “section 3600A”) outside the recognized purpose of the statute.

The Innocence Protection Act (“IPA”) was enacted in 2004 to provide new avenues of post-conviction relief for defendants found guilty of crimes they did not commit.² The IPA ensures that “persons convicted and imprisoned for Federal offenses may seek DNA testing” of biological evidence collected in the crimes for which they were convicted and in which they profess their innocence. ³ It also requires the government to preserve collected biological evidence to make possible future post-conviction testing.⁴ The IPA was approved as part of the Justice for All Act, which also provided funds to allow approved agencies to test evidence to identify perpetrators of unsolved crimes.⁵

EPIC applauds the efforts of Congress and the DOJ to enable post-conviction testing to ensure that people do not continue to serve time for crimes they did not commit. As the IPA’s name and legislative history suggest, the purpose of section 3600A is to protect the innocent. To further this purpose, EPIC urges the DOJ to adopt language that recognizes the privacy implications of storing biological evidence and ensures that access to this evidence is limited to those who are authorized to analyze it under 18 U.S.C. § 3600 and 42 U.S.C. § 14135 (2005).

I. The DOJ Should Clarify the Privacy Obligations That Exist In Storing Biological Evidence Under 18 U.S.C. § 3600A.

Pursuant to section 3600A, the government must preserve all biological evidence that is secured during the investigation or prosecution of a federal offense while a defendant remains imprisoned for that offense.⁶ As the DOJ recognized in its Interim Rule, “[t]he general purpose of section 3600A is to preserve biological evidence for possible DNA testing under section 3600.”⁷ Furthermore, the DOJ links its definition of biological evidence that must be preserved under section 3600A to “the legislative purpose underlying the enactment of section 3600A — i.e., preserving biological evidence for the purpose of possible DNA testing under 18 U.S.C. 3600.”⁸ However, neither the statute nor the Interim Rule limits access of the stored evidence to uses that further this explicit legislative purpose. Furthermore, neither the statute nor the Interim Rule recognizes the privacy implications of maintaining a collection of biological material, which may contain DNA not only from the perpetrator of the crime, but also from victims and third parties.

The material stored under section 3600A is collected pursuant to the investigation of a crime. This material may include DNA samples from suspects, victims, and anyone else relevant to the investigation. Its collection is subject to the privacy protections of both state and federal law.⁹ These protections include the Constitutional right against unreasonable search and seizure, as well as statutory protections governing the general collection and storage of criminal evidence and the specific protections provided for biological material.¹⁰ The storage of the material should therefore be subject to those same protections.

In fact, Congress has already recognized that stored biological material is subject to privacy protections. In the same Act that created the obligation to store material under section 3600A, Congress created the National Forensic Science Commission (hereinafter “the Commission”).¹¹ The Commission is tasked with examining all federal, state, and local privacy protections governing DNA samples and DNA analysis. Furthermore, it is charged with the responsibility of determining whether such protections are sufficient and to make specific recommendations to enhance the privacy protections of DNA information.¹²

Because of the serious privacy implications of storing genetic material, EPIC urges the DOJ to formally recognize that the material stored under section 3600A is subject to state and federal privacy protections from the time it is collected. In addition, EPIC urges the DOJ to work with the National Forensic Science Commission to help identify and enforce the privacy protections applicable to section 3600A.

II. The DOJ Should Restrict Access To and Use of Biological Material Stored Under Section 3600A To the Purpose Specified By Congress.

DNA is useful for a variety of applications not contemplated by sections 3600 or 3600A. While biological material is preserved under section 3600A specifically to exonerate an individual convicted of a crime, this material could also be used for other purposes. According to the Human Genome Project, coordinated by the Department of Energy and National Institutes of Health to map and study the entire human genetic sequence:

DNA can provide insights into many intimate aspects of a person and their families including susceptibility to particular diseases, legitimacy of birth, and perhaps predispositions to certain behaviors and sexual orientation. This increases the potential for genetic discrimination by government, insurers, employers, schools, banks, and others.¹³

Recently, the Senate specifically noted that genetic material can be tested for advanced detection of genetic diseases or used as a basis to deny medical insurance.¹⁴

None of these uses advances the legislative purpose behind section 3600A, yet the Interim Rule interpreting the section does not explicitly prohibit any of them. The rule allows individual agencies that collect biological evidence to transfer the material to any other agency.¹⁵ It places no limits on the purposes for transferring material, instead leaving all decisions to the discretion of individual agencies.¹⁶

There is an established legislative history in favor of limiting access to DNA information to those government agencies whose use of the information advances the purpose of its collection. When Congress authorized the Federal Bureau of Investigation to create the Combined DNA Index System (“CODIS”), it limited disclosure of the stored DNA samples and DNA analyses collected under the program.¹⁷ Criminal justice agencies are allowed to access information only for law enforcement identification purposes.¹⁸ A defendant in federal or state court can access information, but she has access only to the samples and analyses performed in connection with the case in which she is charged.¹⁹ No unauthorized use of the material or collected information is permitted, because specific provisions of the statute limit access to the material.²⁰

Other sections of the Justice for All Act also have explicit privacy provisions limiting access to biological material. The Debbie Smith DNA Backlog Grant Program, 42 U.S.C. § 14135, will only provide grants to analyze biological material from crime scenes if the applicant certifies that each DNA analysis carried out under the plan adheres to the privacy requirements applicable to CODIS.²¹ Furthermore, the program is subject to privacy protection standards requiring any sample collected or analysis performed under the DNA Backlog Grant Program to be used only for specific criminal investigative purposes specified by the program.²² A person who knowingly violates this privacy protection standard is subject to a fine of up to $250,000 or imprisonment for up to one year.²³

In order to continue Congress’ established trend toward limiting the use of DNA information to narrowly defined purposes, EPIC urges the DOJ to adopt language to limit access to and restrict use of the material stored under section 3600A. As the DOJ has already recognized, “[t]he general purpose of section 3600A is to preserve biological evidence for possible DNA testing under section 3600.”²⁴ Thus, access to the material stored under section 3600A should be narrowly limited to DNA testing contemplated by section 3600.

The Debbie Smith DNA Backlog Grant Program highlights the only other legitimate government use of stored biological material: “to ensure that the true offender is caught and convicted for the crime.”²⁵ By analyzing the large backlog of DNA evidence collected in crime investigations, thousands of cases may be solved. This legitimate use, however, does not apply to the majority of material stored under section 3600A. Biological material will only be stored pursuant to section 3600A when a person has already been convicted of the crime in which the material was collected.²⁶ There is no reason for the government to analyze the stored biological material to solve an additional crime; the only reason to analyze the material is to ensure that the true offender is caught and convicted. While it is true that “[c]rime scene evidence can also be linked to other crime scenes” in order to solve cases, the link between crime scenes is the perpetrator’s DNA.²⁷ The government already has the authority to index the DNA profile of anyone convicted of a crime.²⁸ If there is no DNA profile in CODIS for any person currently in custody, the Director of the Bureau of Prisons is authorized to collect a DNA sample for analysis.²⁹ Therefore, there is no need to access stored biological material in order to create a DNA profile. Once a person is convicted, the only reason to access stored biological material is if there is doubt as to the true perpetrator of the crime.

Because of the clear intent of the Justice for All Act, there is only one legitimate reason for the government to access material stored under section 3600A: to determine if the person originally convicted of the crime is in fact guilty. EPIC urges the DOJ to adopt regulations limiting access to material stored under section 3600A to criminal justice agencies for this clearly specified purpose.

Conclusion

In light of the privacy concerns implicit in the retention of biological material and the limited reasons for accessing biological material stored under section 3600A, we recommend the following:

1. The DOJ, in conjunction with the National Forensic Science Commission, should identify the existing privacy protections concerning the storage or use of biological material.
2. The DOJ should formally recognize the existence of such privacy protections and mandate that all agencies which preserve biological material under section 3600A follow these protections. In order to do this, EPIC recommends the following change to the interim rules:
1. Strike “.” at the end of 28 C.F.R. § 28.22(c) (interim), “Conditions of Preservation,” and add “, provided that existing privacy protections concerning the storage or use of biological material are maintained.”
3. The DOJ should continue the long tradition of limiting access to biological material to those who have legitimate purposes to access the material. In order to do this, EPIC recommends the following change to the interim rules:
1. After 28 C.F.R. § 28.22(c), as modified above, add the following:
   (d) Use of Stored Biological Material. The requirement of section 3600A to preserve biological material was enacted by Congress in order to ensure the ability of future testing under 18 U.S.C. § 3600. Congress has repeatedly limited the use of biological material collected in criminal investigations through privacy protection standards. In light of the existing privacy protection standards maintained by Congress and its reasons for enacting section 3600A, access to biological material that is subject to the preservation requirement of section 3600A is limited to Federal criminal justice agencies only for the following purposes:

1. To perform DNA testing requested under the provisions of 18 USC § 3600,
2. To perform DNA testing in order to determine if an individual convicted of any Federal or State offense is actually innocent of the offense, and
3. To perform DNA testing pursuant to an investigation of additional perpetrators of the crime in which the biological material was collected, if additional evidence suggests the existence of such persons.

The DOJ must recognize the privacy implications inherent in storing biological material and ensuring that agencies follow the existing privacy protections that govern material stored under section 3600A. As Congress stated, “DNA testing has the capacity not only to identify the perpetrators of crimes but also to exonerate the innocent.”³⁰ The DOJ should limit access to material preserved under section 3600A to government agencies that will use the material to further the legislative purpose of the section, as suggested above.

Respectfully submitted,

Marcia Hofmann
Director, Open Government Project

Michael Capiro
Law Clerk

Kathryn Sheely
Law Clerk

Electronic Privacy Information Center
1718 Connecticut Avenue NW
Suite 200
Washington, DC 20009
(202) 483-1140

 

¹ Interim Final Rule With Request For Comments, 70 Fed. Reg. 21951 (hereinafter “Interim Rule”).

² Pub. L. No. 108-405 (2004), 18 U.S.C. § 3600 et. seq. (2005).

³ Interim Rule at 21951, citing 18 U.S.C. § 3600.

⁴ Interim Rule at 21951, citing 18 U.S.C. § 3600A.

⁵ “The Debbie Smith DNA Backlog Grant Program,” Justice For All Act of 2004, Pub. L. No. 108-405 (2004), 42 U.S.C. § 14135 (2005).

⁶ 18 U.S.C. § 3600A(a).

⁷ Interim Rule at 21951.

⁸ Id. at 21954.

⁹ Federal law authorizes the collection of DNA identification records in the Combined DNA Index System (“CODIS”) only of persons charged with or convicted of a crime. DNA identification records from persons who voluntarily submit samples for elimination purposes are not allowed to be included in CODIS. 42 U.S.C. § 14132(a)(1). Three states allow under certain circumstances the collection of DNA identification records of persons who have been arrested, but not charged, with a crime. Tex. Gov’t Code Ann. § 411.1471(a)(2) (2004); La. Rev. Stat. Ann. § 15:609(A)(1) (2005); Va. Code Ann. § 19.2-310.2:1 (2004). This information is not included in the federal database. 18 U.S.C. § 14132(a)(1)(C).

¹⁰ These protections include the provisions governing DNA samples and analysis, infra note 20, as well as provisions governing the use of information taken from the biological material. For example, Washington State recognizes that genetic material is the same as any health information that is covered under the state’s health privacy law. Wash. Rev. Code Ann. § 70.02.010(6) (2005). Furthermore, Congress is currently considering a bill that would outlaw the use of genetic information to discriminate in employment or health insurance coverage. Genetic Information Nondiscrimination Act of 2005, S. 306, 108th Cong. § 2 (2005); Genetic Information Nondiscrimination Act of 2005, H.R. 1227, 108th Cong. § 2 (2005); 151 Cong. Rec. S.1595 (2005) (in which the Senate approved S. 306 by a vote of 98-0).

¹¹ Justice For All Act of 2004, Pub. L. No. 108-405, Sec. 306 (2004), 42 U.S.C. § 14136c (2005).

¹² Id. at Sec. 306(b)(7)-(8), § 14136c(b)(7)-(8).

¹³ U.S. Dep’t of Energy Office of Science et al., DNA Forensics, Human Genome Project Information (last modified Sept. 16, 2004), at http://www.ornl.gov/sci/techresources/Human_Genome/elsi/forensics.shtml.

¹⁴ Genetic Information Nondiscrimination Act of 2005, supra note 10.

¹⁵ Interim Rule at 21957-58.

¹⁶ Id.

¹⁷ 42 U.S.C. § 14132(b)(3) (2005).

¹⁸ 42 U.S.C. § 14132(b)(3)(A).

¹⁹ 42 U.S.C. § 14132(b)(3)(C).

²⁰ 42 U.S.C. § 14132(b)(3) states in full that information in CODIS must be “maintained by Federal, State, and local criminal justice agencies (of the Secretary of Defense in accordance with section 1565 of title 10, United States Code) pursuant to rules that allow disclosure of stored DNA samples and DNA analyses only –

1. to criminal justice agencies for law enforcement identification purposes;
   
2. in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules;
   
3. for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged; or
   
4. if personally identifiable information is removed, for a population statistics database, for identification and protocol development purposes, or for quality control purposes.
   

²¹ 42 U.S.C. § 14135(b)(2) (requiring States or local governments who submit an application for a grant under the section to “include a certification that each DNA analysis carried out under the plan shall be maintained pursuant to the privacy requirements described in section 210304(b)(3) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132(b)(3))”). The Violent Crime Control and Law Enforcement Act of 1994 establishes the Combined DNA Index System (CODIS).

²² 42 U.S.C. § 14135e(a).

²³ 42 U.S.C. § 14135e(c).

²⁴ Interim Rule at 21951.

²⁵ “Justice For All Act of 2005 Report,” 108 H. Rpt. 711 (2004).

²⁶ 18 U.S.C. § 3600A(a).

²⁷ “Justice For All Act of 2005 Report,” supra note 25.

²⁸ 42 U.S.C. § 14132(a)(1)(A).

²⁹ 42 U.S.C. § 14135a(a)(1) (2005). The Court of Appeals for the Ninth Circuit upheld the constitutionality of this statute in U.S. v. Kincade. 379 F.3d 813 (9th Cir. 2004).

³⁰ “Justice For All Act of 2005 Report,” supra note 25.