With the recent outcry over phone and email surveillance, Americans concerned with privacy issues have become increasingly worried. They see “Big Brother,” ie: the federal government, as watching us closely to make sure we behave ourselves and do not engage in activities that could be damaging
to the government. On top of this is the issue of the IRS scrutiny of Tea Party and conservative organizations requesting 501(c)4 status to become tax exempt, which politicians on the left and right have decried as outrageous. Yet even more invasive than these other moves by the government is the attempt to obtain DNA samples from criminal suspects who have not been convicted of criminal charges. Can you imagine what the government could do with this information?
Quite frankly, I can’t imagine how the government could misuse DNA samples and see this brou-ha-ha as a tempest in a teapot. In fact, I believe the DNA database should be expanded to include every inhabitant of the United States, and that there should be a fingerprint databank as well for
everyone. The potential for abuse of this data is far outweighed by the possible benefits to society, particularly in solving and preventing crimes, and potential help in blocking terrorist activity.
Libertarians on both the left and the right are the ones fighting most vigorously against a DNA databank, seeing it as an invasion of privacy and because of concerns that this information could be misused by the government. Yet the vast majority of Americans have already surrendered their
privacy to technological intrusions. Indeed, our digital fingerprints are already available to both private and public entities and relatively easily obtainable. By that, I mean we can be tracked through our electronic appliances such as cell phones and tablets to provide our locations to those who are interested. There is also the data we willingly divulge about ourselves on Facebook, Linkedin, and other sites accessible to the public. And EasyPass and similar mechanisms record where we have gone, credit cards what we have spent and where we have spent it, and on what.
If rapists, murderers, and other violent criminals can be apprehended and convicted, and prevented from further crimes through a DNA and fingerprint database, a minor invasion of privacy seems a small price to pay. The question that must be answered is whether this contravenes the Fifth Amendment protection against self-incrimination that has been in place since the Constitution was ratified. The program might also be questioned on the basis of the Fourth Amendment right of people to be secure in their persons against unreasonable searches and seizures (invasion of privacy).
The Fifth Amendment was originally written in the Constitution to protect against torture and physical pain to obtain criminal convictions and did not even consider the possibility of a person’s DNA as evidence. The way the wording was constructed in the amendment could be interpreted as allowing DNA or disallowing it, depending whether the court interpreted it literally or more broadly. After protecting against double jeopardy the Fifth Amendment states- nor shall (any person) be compelled in any criminal case to be a witness against himself. Use of the term witness suggests being compelled to testify against himself and does not necessarily exclude physical evidence from a person being utilized. In fact, if this amendment were interpreted broadly, a person’s fingerprints couldn’t be used against him in a criminal case, and fingerprints have been accepted as evidence in criminal cases for well over a hundred years. DNA and fingerprints are really no different in the use of a person’s physical characteristics to identify and convict him or her of a crime.
Science has made huge strides since the Constitution was written. Pursuit of criminals and terrorists should not be constrained by interpretation of this document in ways that limit these scientific advances from being employed by the criminal justice system. DNA and fingerprint
databanks should be expanded maximally and used as necessary. Non-criminals need not worry that this information will come back to haunt them in the future unless the nation’s laws are dramatically transformed, an unlikely scenario.