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August 18, 2011

How Long Can Gov't Keep DNA?

Dna A recent article in the Virginia Law Review caught my eye and is interesting reading for anyone concerned with long-term data preservation. 

The article, by Penn State Professor David Kaye, is titled, “DNA Database Trawls and rhe Definition of a Search in Borian v. Mueller. 

As most people know, the government collects DNA profiles from convicted offenders (and, in some cases, when people are arrested), and stores those DNA profiles in large databases. The databases are searched for matches against DNA samples recovered at crime scenes. The article addresses the question:  how long can the information be kept in the database?  In other words, “Is there no way an offender can escape ‘lifelong genetic surveillance?’ ”

The First Circuit Court of Appeals held that there is essentially no limit to how long the government can keep DNA information in databases.  That case was Borian v. MuellerThe article observes that the First Circuit concluded that a check of the database does not constitute a “search” within the meaning of the Fourth Amendment and, accordingly, is not subject to any constitutional limitation.  This is because, under this interpretation of the Fourth Amendment, once the government acquires the DNA information, every review of the database constitutes only a minimal invasion of a person’s privacy. 

The broader e-discovery issue involves reuse of data.  Once the government lawfully acquires data, can the government reuse that data?  Kaye suggests that, in most instances, the answer is usually “yes.”  He writes:  “a simple rule allowing reuse of data works well enough as long as the additional interests in the privacy of the information are either outside the scope of the Fourth Amendment or too tenuous to justify the usual need for individualized suspicion or warrants.”



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