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Johnson v. Quander

Compelled Collection for DNA Databases

Introduction | Procedural History | EPIC's Interest | Legal Documents | Related EPIC Amicus Briefs| Related Resources

Introduction

Lamar Johnson, a probationer, challenged the D.C. Offender Supervision Agency's demand that he provide a DNA sample for inclusion in a federal DNA database. After having his claim dismissed by the district court and by the D.C. Circuit, he is requesting that the U. S. Supreme Court hear his case and find that the DNA collection is a violation of the Fourth Amendment protections against unreasonable government search and seizure and law enforcement accumulation and use of personal information.

Procedural History

About one month prior to the end of Johnson's probation, resulting from two convictions of unarmed robbery, Johnson was told that he would be required to submit blood so that a DNA sample could be taken and entered into the Combined DNA Index System (CODIS) and made available to law enforcement by the Federal Bureau of Investigation. Johnson refused to give the blood sample, and the D.C. District Court ordered that he explain why his probation should not be revoked because of his refusal.

Johnson claimed that the DNA Analysis Backlog Elimination Act of 2000 (DNA Act), 42 U.S.C. 14135a, and D.C. Cod Ann. § 22-4151 violated his rights under the Fourth and Fifth Amendments, as well as the Health Insurance Portability and Accountability Act (HIPAA), and the International Convention of the Elimination of All Forms of Racial Discrimination (CERD). The District Court dismissed the case. Johnson then appealed to the United States Court of Appeals for the District of Columbia.

The Court of Appeals affirmed the District Court's holding, specifically rejecting Johnson's claim that the DNA Act and the D.C. Code violated his Fourth Amendment rights and the Ex Post Facto Clauses. The court said that Johnson, as a probationer, had a lowered expectation of privacy and that the compulsory production of a blood sample was a “reasonable” search under the Fourth Amendment, since it furthered a government interest--identifying recidivist criminals--that was greater than Johnson's privacy interest in keeping his identity secret. The court refused to discuss other information obtainable from the DNA profile or the risks of storing the blood sample after the DNA profile is extracted, saying no abuse was alleged and that the court therefore did not need to consider it. The Court of Appeals also upheld the District Court's findings in regard to the Fifth Amendment, HIPAA, and CERD claims without discussion. Johnson has now petitioned for a writ of certiorari from the United States Supreme Court.

EPIC's Interest

EPIC has filed amicus briefs in several earlier cases dealing with DNA collection and databases. In United States v. Kincade, EPIC explained that DNA contains far more information than a fingerprint and that, in the absence of privacy safeguards, a DNA sample collected for one purpose could be used in the future for unrelated purposes. EPIC has also made these arguments in Maryland v. Raines, where DNA was collected under state law. EPIC has also filed an amicus brief in the context of DNA dragnets. In Kohler v. Englade, EPIC wrote that, since DNA dragnets were largely ineffective and implicated constitutional privacy rights, stringent safeguards should be put in place to protect individuals' privacy.

In supporting Johnson's petition for certiorari, EPIC seeks to emphasize three particular flaws within the DNA collection program. First, the DNA profile stored in CODIS contains more information than the unique identifier the government claims. Second, the DNA database allows for partial profile searching that implicates relatives of profiled individuals. Third, the retention of the blood sample from which the DNA profile is generated presents an opportunity for future privacy violations.

More than a Mere Identifier. The government claims that the DNA profile is generated using “junk DNA” that has no known biological function, so the profile is nothing more than a unique identifier and says nothing about the individual from whom the sample was collected. However, each profile contains at least two other specific pieces of data about the individual: sex and race. The profile itself directly stores the subject's sex. Parts of the DNA profile correlate with subjects' race with known probabilities, too, so the subject's race can be determined with some certainty. Most disturbingly, recent research into “junk DNA” is finding that it does in fact serve a biological function, though that function is not yet completely understood. Because these parts of the DNA, called non-coding DNA, do not operate in as explicit a manner as coding DNA, their functioning cannot be directly observed. Research suggests, though, that these DNA sections serve some function during early development, and scientific examination is ongoing. Eventually, we will know the functions of these DNA sections, and the DNA database will tell the government more than simply a person's identity.

Family DNA Implicated. The ability of investigators to search the database for partial matches allows identification of people related to the target of the search. For example, if a sample found at a crime scene partially matches a sample in the database, it is likely that the person listed in the database is somehow related to the donor of the crime-scene sample. This partial-match ability means that when someone is compelled to give a DNA sample for the database, he is not only subjecting himself to future scrutiny, but also increasing the likelihood that he will be investigated if one of his relatives commits a crime. Additionally, investigators finding a partial match cannot tell what relation the suspect has to the sample donor, so if the brother of a donor commits a crime it may lead to investigation of the donor's father. By being forced to provide a DNA sample, a donor brings his whole family under increased government scrutiny.

Secondary Uses of Samples. Finally, after a blood sample is used to generate a DNA profile, the blood sample is often kept in storage. While this sample could be used in the future to check for mistakes in the generation of the DNA profile, it also allows many other kinds of testing. Such a blood sample could be tested for propensity for various genetic disorders, familial ties including paternity and maternity, drug use, or even diet. A blood sample contains a wealth of information about an individual's life and family history, and the limited value of keeping the samples to assure the accuracy of the DNA database is greatly overshadowed by the grave privacy risks that the samples will be used for other purposes.

Legal Documents

Supreme Court D.C. Circuit Court of Appeals

Related EPIC Amicus Briefs

Related Resources

EPIC Home Page

Last Updated: July 7, 2006
Page URL: http://www.epic.org/privacy/johnson/default.html