Introduction
The Commonwealth of Massachusetts asks this Court to allow it unfettered
access to the DNA of certain inmates, parolees and probationers. By so doing,
the Commonwealth would gain access and control over highly personal
information relating to these inmates, parolees and probationers and to their
relatives (regardless of whether those relatives have committed any crimes).
The Commonwealth has been slow to adopt regulations defining how this DNA
database can be created, used and protected against access by unauthorized
persons. Indeed, the Commonwealth has been forced to implement its current
regulations regarding the DNA Database only because of this very litigation.
Even so, the Commonwealth still has failed to develop security plans for the
data it seeks to collect pursuant to those hastily-adopted regulations.
Such unregulated invasions of privacy -- even where the victims are inmates
-- fall below the standard that any citizen has a right to expect, especially
for information as personal and sensitive as that contained in DNA.
Accordingly, the decision below enjoining the Commonwealth’s DNA Database was
amply justified and should be affirmed.
Interest of Amicus
The Council for Responsible Genetics ("CRG") is a private, non-profit
bio-ethics advocacy organization. Its mission is to educate the public about
the social and environmental implications of new genetic technologies and to
advocate for the socially responsible use of those technologies.
CRG was founded in 1983 by a broad coalition of scientists, bio-ethicists,
public health advocates, and other concerned citizens. At the time CRG was
founded, research in the field of genetics was starting to move very quickly,
and there were few controls in place to evaluate the safety or negative social
implications of the new uses for DNA that were being proposed.
CRG was created in order to inject a public interest analysis into what had
been a largely uncritical discussion about genetic technologies. Its mission
has been to ensure that these powerful new technologies are developed and
applied carefully and appropriately. In the nearly fifteen years since CRG was
founded, protecting the privacy of personal genetic information has remained
at the forefront of its work, while the protection of genetic privacy has
grown as an issue of concern among the general public.
CRG submits this amicus brief in support of its general mission.
Because of the methods proposed for collecting and maintaining the DNA
information and releasing it from the Massachusetts State Police’s DNA
Database (the "DNA Database"), CRG believes that there will be serious harm to
the rights of privacy and bodily integrity of the Massachusetts inmates,
parolees and probationers whose DNA samples will be included in that database
forever. Because genetic information from one individual also contains
information about his or her relatives, CRG also believes the DNA Database
will unfairly compromise the privacy of the relatives of the individuals whose
DNA is stored in this database. If left unchecked, the Commonwealth's DNA
Database will have adverse consequences for the rights of all these
individuals.
CRG includes both the "producers" of genetic testing services (i.e.,
scientists and physicians) and the "consumers" of these services (i.e.,
individuals who undergo genetic testing after consulting with their
physician). Some of CRG’s "consumer" members have experienced discrimination
or social stigmatization as a result of the unauthorized release of genetic
information from predictive DNA tests. Even though these individuals are
currently healthy, the unauthorized disclosure of their genetic information
has resulted in the loss of jobs or the denial of insurance coverage, simply
because they were viewed as having "bad genes."
CRG is strongly opposed to the practice of such genetic discrimination.
Like racial or sexual discrimination, genetic discrimination arises from the
evaluation of people based upon stereotypes regarding future performance or
the fear of future consequences, rather than upon actual evidence of ability
or events.
CRG is also concerned about the public health impact that could result from
the fear of genetic discrimination. Fear of discrimination already prevents
some people from taking advantage of recommended genetic tests or other
medical options. Additional exposure or careless treatment of genetic
information in the State Police's DNA Database will only exacerbate this
chilling effect and work to prevent people from seeking appropriate treatment
for fear that private information revealed in the course of that treatment
will be wrongfully disclosed.
Statement of Facts
The Contents of DNA Samples
There are significant differences between DNA and more traditional types of
identification records. What the Commonwealth refers to as a "DNA fingerprint"
is not simply a high-tech substitute for identification using actual
fingerprints or dental records. See Defendants-Appellants' Brief at 20-21. In
particular, while dental records or fingerprints provide little information
beyond the identity of an individual, DNA contains information about highly
personal matters that are unrelated to identification, including intimate
family relations (e.g., paternity or adoption), genetic traits and health
conditions. This Court has recognized this distinction between DNA and other
means of identification and has expressly rejected the use of the term "DNA
fingerprinting." Commonwealth v. Curnin, 409 Mass. 218, 219 n.2 (1991)
(rejecting the use of the term "‘DNA fingerprinting’ because (1) it tends to
trivialize the intricacies of the processes by which information for DNA
comparisons is obtained (when compared to the process of fingerprinting) and
(2) the word fingerprinting tends to suggest erroneously that DNA testing of
the type involved in this case will identify conclusively, like real
fingerprinting, the one person in the world who could have left the
identifying evidence at the crime scene.").
The Commonwealth claims that it will use only those portions of the DNA
samples it seizes that are relevant for identification purposes. Even if this
were true, it would not change the fact that the Commonwealth seizes and
retains the entire DNA sample, which contain a vast amount of personal
information that could be subjected to unauthorized review, research or
testing. Cf. Defendants-Appellants' Brief at 19. As one justice of the
Superior Court has stated in this regard:
[S]ubmission of such [DNA] samples clearly gives government the power to
conduct intimate inquiries of a type it could not even begin to approach
absent the sample's possession.
Murphy v. Commonwealth, 9 Mass. L. Rptr. No. 4, 82, 83 (Mass. Super.
November 9, 1998) (McHugh, J.). The Supreme Court shares these concerns:
"[T]he mere existence in readily available form of the information about
patients[] creates a genuine concern that the information will become publicly
known and that it will adversely affect their reputations."); Whalen v. Roe,
429 U.S. 589, 600 (1977) (discussing legality of state-maintained records of
use of controlled substances such as opium, cocaine and methadone); see also
Affidavit of Donald E. Riley, Ph.D, dated December 17, 1998, a copy of which
is included in the Addendum hereto (hereinafter "Add.") at Tab A. Given the
lack of law or regulation to limit what types of data may be included in the
state’s DNA Database, the Appellees’ fears of such misuse are justified.
DNA is Significant Both for
the Amount of Information It
Contains and
the Highly Personal Nature of that Information
Genes have been linked to over 4,000 specific disorders and diseases,
including common forms of cancer and heart disease. Some researchers also have
suggested more controversial genetic links to homosexuality, aggression and
criminality, obesity, mental illness, and alcoholism. N. Angier, "Matter Over
Mind? The Curse of Living Within One's Genes," New York Times, p. D1, December
18, 1994. (Add., B) Even the suspicion of such controversial links could cause
grave injury to a person's reputation. See P. Billings, et al., Discrimination
as a Consequence of Genetic Testing, 50 Am. J. Human Genetics 476, 481 (1992);
K. Hudson, et al., "Genetic Discrimination and Health Insurance: An Urgent
Need for Reform," Science, v. 270, October 20, 1995. (Add., C and Add., D) See
also Lawrence O. Gostin, Health Information Privacy, 80 Cornell L. Rev. 451,
490 (1995) (citing impact of disclosure of information, including economic,
social and psychological harms).
Moreover, the Commonwealth has not imposed upon itself the requirement that
an individual be notified when his or her DNA specimen is used by the
Commonwealth or made available to a third party. As a result, current or
former inmates or their relatives may not know of any abuses of this
information until long after the damage has been done. See generally, Mass.
Gen. L. ch. 22E, § 1-15; 515 CMR § 1.00 et seq. Appendix (hereinafter "A.")
0042 and A.0270. It is concern for this highly sensitive and intensely
personal information that has prompted the actions of Mr. Landry and the other
plaintiffs and that motivates the filing of this amicus brief.
Uses for the DNA Database Besides Identification
The actions of the Commonwealth suggest that it may have plans to utilize
the DNA Database for purposes other than personal identification. There is a
long unfortunate history of despicable behavior by governments toward people
whose genetic composition has been considered "abnormal" under the then
prevailing societal standards. For example, for many years it was commonplace
to forcibly sterilize "mental defectives" who where held in state
institutions. See Buck v. Bell, 274 U.S. 200, 207 (1927) (Holmes, J.)
(affirming Virginia law allowing for forced sterilization of mentally retarded
persons who were in state institutions and stating, "It is better for all the
world, if instead of waiting to execute degenerate offspring for crime . . .
society can prevent those who are manifestly unfit from continuing their kind
. . . . Three generations of imbeciles are enough."). Those individuals who
were sterilized because of the Supreme Court's ruling in Buck v. Bell would
surely not be subjected to the same treatment today. Stephen Jay Gould, The
Mismeasure of Man at 336 (1981); see also Skinner v. Oklahoma, 316 U.S. 535,
541 (1942) (discussing the harm that can come from "evil or reckless hands" in
regard to "races or types which are inimical to the dominant group . . .
.").
Genetic discrimination by the government is not merely a artifact of the
distant past. During the 1970s, the Air Force refused to allow healthy
individuals who carried one copy of the sickle-cell gene to engage in flight
training, even though two copies of the gene are needed for symptoms of
sickle-cell disease to develop. This restriction was based upon the then
untested (and now known to be incorrect) belief that people with a single such
gene could display symptoms of sickle-cell disease under low oxygen
conditions, even though they would not actually have sickle-cell disease.
Because the vast majority of sickle-cell carriers are individuals of
African descent, this Air Force policy had the insidious effect of reducing
the number of African-Americans who became pilots. Although this policy was
ultimately discontinued, that change occurred only after an Air Force trainee
sued to have it changed in 1979. See Council for Responsible Genetics,
"Genetic Privacy: A Discussion Paper on DNA Data Banking," at 6 n.4 (1994)
(Add., E); E. Donald Shapiro and Michelle L. Weinberg, DNA Data Banking: The
Dangerous Erosion of Privacy, 38 Clev. St. L. Rev. 455, 480 n.132 (1990).
Genetics and Crime
In addition to this unfortunate history of genetic discrimination, there is
also a history of specific negative genetic bias with regard to the propensity
to commit crimes. Reference to this bias is even found in a Department of
Correction study from 1996, which refers to the search for a "crime gene." See
"Questions Concerning Biological Risk Factors for Criminal Behavior," (Mass.
Dept. of Correction/Mass. Dept. of Public Health, June 30, 1996) at 2. (Add.,
F); see pp. 15-17 supra.
One early suspect in the search for a "crime gene" is the so-called "XYY
syndrome." "XYY syndrome" refers to a chromosomal abnormality in some men who
have not one, but two Y chromosomes._ Certain early studies in the field of
human genetics suggested that XYY men were more violent and aggressive and
more likely to commit crimes than other men. However, the idea that XYY
syndrome related to crime or antisocial personality disorder has now been
discredited. 1 Harrison’s Principles of Internal Medicine at 2137 (12th ed.
1991). (Add., G) Instead, the majority of modern studies have concluded that
the effect of XYY is difficult to define. 2 Harrison’s Principles of Internal
Medicine at 53 (12th ed. 1991). For "although increased height, behavior
difficulties, and infertility are common, the extra Y is sometimes found in
otherwise normal men." (Add., H); M. Linden, B. Bender, A. Robinson, "Sex
Chromosome Tetrasomy and Pentasomy," Pediatrics, Vol. 96, No. 4 (October 1,
1995) at 672 ("Within each polysomy X and/or Y group, substantial variability
exists, such that a generalized prognosis is not possible."). (Add., I)
Even if it were found that XYY men were jailed more frequently than the
majority XY male population, linking XYY status to criminal behavior would
still be a dangerous leap. For example, one study of XYY men concluded that
XYY men actually commit fewer crimes than XY men, but that they might be
incarcerated at a higher rate than XY men because of the possible negative
impact XYY syndrome has on intelligence. D. Owen, "The 47,XYY Male: A Review,"
Psychological Bulletin, 78, 209-233 (1972). (Add., J)
Even as the predictive validity of genetic information (such as the single
sickle cell gene and XYY syndrome) is being challenged and reevaluated, such
questionable information is being widely used in decisions about whether or
not to employ certain people, what kind of health insurance policies
particular individuals should receive or whether they should be eligible for
health insurance at all. In particular, genetic information is being used to
discriminate against the "asymptomatically ill," individuals who are not sick,
but whose genetic makeup leads insurers or employers to fear that certain
illnesses may occur in the future (and that they might have to bear the costs
of those illnesses). P. Billings, et al., Discrimi nation as a Consequence of
Genetic Testing, (Add., C); J. Alper, et al., Genetic Discrimination and
Screening for Hemochromatosis, 15 J. Pub. Health Policy 345, 349- 50 (Autumn
1994) (discussing examples of denials of employment and insurance to
asymptomatic carriers of hemochromatosis, a relatively common but significant
genetic disorder that is symptomless and amenable to treatment at low cost).
(Add., K)
In this regard, Dr. James Watson, winner of the 1962 Nobel Prize for his
role in discovering the helical structure of DNA, has warned of the dangers
inherent in the collection and analysis of genetic information:
[Society] has to recognize the terrible past of eugenics and the way
incomplete knowledge has been used. [Society has] to ensure people that the
knowledge encoded in their own DNA is private. [Society] must protect
that.
E. Donald Shapiro and Michelle L. Weinberg, DNA Data Banking: The Dangerous
Erosion of Privacy, 38 Clev. St. L. Rev. 455, 468 (1990). The same risk of
discrimination and harassment exists in regard to the information contained in
the DNA specimens the Commonwealth seeks to collect and store. The court below
recognized these dangers when it enjoined the Commonwealth’s DNA Database.
The Commonwealth Has Commissioned Research
on the Genetic
Components of Criminal Behavior
In 1996, the year before the Legislature’s enactment of the law authorizing
the Commonwealth’s DNA database, the Legislature commissioned a study to
research the biological origins of crime. The authorizing legislation for that
study described it as follows:
the department of correction, in conjunction with the department of public
health and the department of education, shall conduct a study into the
biological cause of crime based on the premise that scientists have been
studying biological risk factors which they believe predispose individuals to
criminal behavior; provided further, that said study should incorporate these
findings to work toward a more effective approach toward criminology; provided
further, that the results of said study shall be submitted to the general
court no later than June thirtieth, nineteen hundred and
ninety-six.
1996 Mass. Acts ch. 12, § 2 at 13. (Add., L)
The research that the Legislature commissioned resulted in a report issued
June 30, 1996 entitled, "Questions Concerning Biological Risk Factors for
Criminal Behavior." (Add., F) That report specifically focused on genes as the
basis for criminal behavior, stating:
This report concentrates on research that seeks to make a direct link
between genetics or biology and crime.
The report foresaw a future where "genetics begin[] to play a role in the
effort to evaluate the causes of crime . . . ." (Add., L) and even cited two
articles regarding the debunked "XYY syndrome." The report also acknowledged
several of the concerns regarding genetic privacy that are referenced in this
brief:
••"Efforts to find a biological cause for crime or violence has [sic]
proved controversial."
••"Sensitivity about the issue of eugenics has heightened concerns about
genetic research of this topic."
••"[T]here has been substantial discussion among researchers in this
field about the need for careful and thoughtful analysis of issues invoking
consideration of minority community issues."
••"The ethical implications of genetics research in this area must be
carefully weighed as a part of any such investigation."
(See Add., F)
Despite this recognition of the risks of collecting, storing and using
genetic information, a little more than a year after the report was issued, on
September 30, 1997, the Massachusetts Legislature enacted the DNA Seizure and
Dissemination Act, Mass. Gen. L. ch. 22E, §§ 1-15. A.0042. The Act provides
for the collection of DNA samples from Massachusetts inmates (and others) and
their inclusion in a "state DNA database" to be maintained indefinitely and
administered by the Commonwealth’s State Police Crime Laboratory.
The Commonwealth's stated purpose in creating and maintaining this Database
is:
to assist local, state and federal criminal justice and law enforcement
agencies in:
(1) deterring and discovering crimes and recidivistic criminal activity;
(2) identifying individuals for, and excluding individuals from criminal
investigation or prosecution; and
(3) searching for missing persons.
1997 Mass. Acts, ch. 106, § 1. The Commonwealth collected more than 1,100
DNA samples for this Database before its forced collection policy was enjoined
by the court below. (That injunction was subsequently modified by a single
justice. A.156)
Initially, no regulations were issued by the Commonwealth to govern the DNA
collection process. Through this litigation, however, the Commonwealth was
forced to issue such regulations to govern the collection, storage and release
process.
One of those regulations, 515 CMR § 2.07, sets out the required "Security
Features Preventing Unauthorized Access" to the inmate DNA samples. A.0270.
That regulation specifies that:
The Crime Laboratory . . . must have a written Information Systems Plan
which specifies the architecture of the laboratory's computer hardware and
the structure of security features comprising the access control component
of the computer software employed to prevent unauthorized access to DNA
records.
515 CMR § 2.07(1). A.0270. Yet as of December 30, 1998, the director of the
State Police Crime Laboratory conceded that the "Information Systems Plan for
the DNA Database has not been instituted . . . ." (See December 30, 1998
letter from John G. Molloy, Staff Counsel, Massachusetts State Police.) (Add.,
M) The admission that the Commonwealth lacks any mechanism to protect the DNA
data they wish to collect is deeply troubling, as its means that the
Commonwealth has not provided any details or assurances regarding the
safeguards that will be taken to protect this highly sensitive personal
information. The lack of regulatory control over the DNA Database together
with the Legislature's recent report on alleged genetic bases of crime,
underscores the reasonableness of the plaintiffs' concerns regarding the use
and potential misuse of the information in their DNA.
* * *
With regard to the parties in this case, the Commonwealth has forcibly
collected DNA samples from plaintiffs Vincent Gallello, John Hallett, and
Geoffrey Pironti, who were then inmates in the custody of the Commonwealth.
The Commonwealth also instructed Donald Landry, Miriam Cartagena, Albert
Troisi and William Pistorino, who were then on probation, to schedule
appointments to provide their DNA samples to the Commonwealth. A.0009-11.
Once the Commonwealth demanded (and in some cases forcibly collected) DNA
samples from the plaintiffs, the plaintiffs became concerned about the
confidentiality of those samples and the information contained in them. It is
those concerns that led to the filing of this action. It is difficult to
imagine anyone who would not have qualms about the conditions under which that
information might be released and object to granting the Commonwealth such
broad discretion over such sensitive material.
ARGUMENT
THE FORCED COLLECTION OF DNA SPECIMENS FOR THE COMMONWEALTH'S
DNA DATABASE VIOLATES THE FOURTH AMENDMENT TO THE CONSTITUTION AND ARTICLE 14
OF THE MASSACHUSETTS DECLARATION OF RIGHTS
I. The Plaintiffs Retain Certain Constitutional Rights Despite Their Status
There is no dispute that Mr. Landry and the other plaintiffs surrendered
certain rights when they were convicted of their crimes and were incarcerated.
No person, however, surrenders all of his or her constitutional rights upon
being convicted of a felony (let alone being convicted a misdemeanor).2
Like all citizens, those convicted of committing crimes have certain
fundamental rights that cannot be stripped from them, including the right to
privacy and the right to be free of unlawful searches and seizures, especially
after they have served their time and are released from prison. In this
regard, it is the policy of the Commonwealth both "to protect the privacy
interests of the ex-felon and to maximize his restoration to normal
citizenship." Commonwealth v. Vickey, 381 Mass. 762, 772 (1980) (discussing
the rights of a pardoned felon).3
II. The Commonwealth’s Collection of
DNA Specimens is an
Unreasonable Seizure
The trial court concluded that the seizure of DNA from the Plaintiffs could
not be justified in the absence of individualized suspicion. The government
contends that the seizure is reasonable notwithstanding the absence of
probable cause because it serves an important government interest. Even
accepting the government's approach for the sake of argument, the authorizing
statute for the DNA Database still cannot be sustained because it still
mandates an unlawful seizure.
A.A. The Taking of Blood for the DNA Database Constitutes a
"Seizure" Under the
Fourth Amendment to the United States Constitution
and Article 14 of the Massachusetts Declaration of Rights
There can be no dispute that the taking of DNA specimens from Mr. Landry,
or from any other person (inmate or not), constitutes a "seizure" within the
meaning of the Fourth Amendment and article 14, both at the time of the taking
of the sample and again when highly personal information is extracted from
that sample.
The amount of personal and private data contained in these DNA specimens
makes these seizures extraordinary in both their nature and scope. DNA samples
provide insights into the most personal family relationships and the most
intimate workings of the human body, including the likelihood of the
occurrence of over 4,000 types of genetic conditions and diseases, interests
that are certainly protected by the Constitution. See generally, Roe v. Wade,
410 U.S. 113 (1973). Surely if private telephone conversations between
citizens are protected against seizure, Katz v. United States, 389 U.S. 347
(1967),4
then the biological instructions that are transmitted from parent to child and
carried within that child are entitled to protection as well.
B.B. The Seizure of Inmate DNA
By the Commonwealth Is
Unreasonable
The Commonwealth's seizure of DNA specimens for its DNA Database is
constitutionally permissible only in the presence of individualized suspicion
and only then if it is reasonable under the circumstances. One of the relevant
considerations in this regard is "the extent of intrusion upon the
individual's dignitary interests in personal privacy and bodily integrity."
Winston v. Lee, 470 U.S. 753, 761 (1985).
In order to justify the compelled disclosures inherent in the collection,
maintenance and use of DNA samples from inmates, parolees, and probationers,
the Commonwealth must also make "a showing of clear necessity, procedural
regularity, and minimal pain . . . . [T]he government's burden [is] to provide
more than minimal justification for its action." In re Cincinnati Radiation
Litig., 874 F. Supp. 796, 813 (S.D. Ohio 1997). Because the Commonwealth did
not make such a showing in the proceedings below, the judgment upholding the
DNA Database should be affirmed. The Supreme Court's opinions in this regard
are consistent with the holding of the court below that no precedent supports
a bodily intrusion such as this "without at least individualized suspicion, if
not probable cause, of criminal activity and a clear indication that such
intrusion will provide probative evidence connecting the defendant to said
activity." A.0287. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S.
602, 616 (1989) (characterizing the drawing of blood as a "physical intrusion
[that] infringes an expectation of privacy that society is prepared to
recognize as reasonable" and stating further that (merely "[o]btaining and
examining the evidence may also be a search . . . .").5
. The need for these DNA specimens does not justify this search and
seizure
The only justification that the Commonwealth has offered for such searches
against the citizen population is a fear of recidivism. Defendants-Appellants'
Brief at 10, 31-35. In this regard, the Commonwealth cites statistics
regarding the incarceration or arrest of former inmates. See
Defendants-Appellants' Brief at 32-33. The true import of those statistics is
unclear, however, as arrest is not evidence of an inmates recidivism; only
evidence of a subsequent conviction is.
Even assuming for the sake of argument that about 25% of all inmates will
commit crimes after their release (see Defendants-Appellants' Brief at 32),
that statistic does not justify empowering the Commonwealth to conduct
suspicionless, warrantless searches of the 75% who will not commit crimes
again. Cf. Committee for GI Rights v. Callaway, 518 F.2d 466, 475 (D.C. Cir.
1975) (quoting the district court opinion, stating that "mass searches . . .
'would be illegal in a civilian context in the absence of particularized
probable cause.'") (citation omitted).
The Fourth Amendment and article 14 of the Massachusetts Declaration of
Rights both require that the Commonwealth’s need for the information it seeks
to compel be balanced against the risks inherent in such accumulations of
information. Skinner, 489 U.S. at 619; Commonwealth v. Shields, 402 Mass. 162,
166 (1988). In practice, this means that even if one were to acknowledge the
legitimacy of collecting DNA samples from inmates for identification purposes,
the Commonwealth's program for collecting, storing, and utilizing those
samples still must be tailored to suit that purpose. Winston v. Lee, 470 U.S.
753 (1985) illustrates the application of this balancing test. In Winston, law
enforcement authorities sought to compel surgery on a criminal suspect in
order to retrieve evidence (a bullet) from his body. The Supreme Court held
that the authorities had not met their burden of justifying this involuntary
surgery, stating that the "extent of intrusion upon the individual's dignitary
interests in personal privacy" must be balanced against the fact that the
state already possessed "substantial evidence of the origin of the bullet."
Winston, 470 U.S. at 761, 766.
As in Winston, the Commonwealth has less-invasive means that it can employ
in order to identify criminal suspects. The Commonwealth already has access to
an extensive collection of fingerprints for this very purpose and to the FBI’s
own DNA network. A.0045. The availability of these records substantially
reduces the need for the invasion required for the Commonwealth’s DNA
Database. Winston, 470 U.S. at 765. Furthermore, the Commonwealth easily can
request the informed consent of those from whom it seeks to obtain DNA samples
or to make participation a condition for early release.
. The scope of the compelled
disclosures is disproportional to
the
necessity for the DNA Database
The Supreme Court has taken a dim view of searches or seizures that are
overly broad, such as those required to fill the Massachusetts DNA Database.
For example, in National Treasury Employees Union v. Von Raab, 489 U.S. 656,
678 (1989), the United States Customs Service sought to initiate a drug
testing program for certain employees. The Supreme Court stated that such an
invasive testing program would not pass Fourth Amendment scrutiny if the
"category of employees" subject to that program was defined "more broadly than
necessary to meet the purposes of the [Government's] directive." Given the
ambiguities that were found in the Customs Service's testing program, the
Supreme Court remanded the case to clarify the scope of employees subject to
the testing.
One indication of the overbreadth of the search and seizure at issue here
is the fact that the DNA samples, once collected, will be held
"indefinitely":
DNA samples on FTA Blood Collection Paper, DNA Database Collection Cards
and DNA Database Identification Cards shall be stored indefinitely in a secure
storage area unless otherwise required . . . .
515 CMR § 1.05(4); A.0124.6
Likewise, the statute that establishes the DNA Database makes no provision
for expunging DNA records of recipients of pardons, let alone of deceased
individuals. See Mass. Gen. L. ch. 22E, § 15. A.0044. The Commonwealth appears
to have no plans to dispose of or destroy these DNA samples in its database
once they are collected. See Mass. Gen. L. ch. 22E, § 15 (providing for
expunging of records only pursuant to court order). A.0044. No argument has
been advanced by the Commonwealth in defense of the retention specimens from
released inmates who have completed their parole or probationary period, and
not been convicted of a felony since that time, or even those who are
deceased. See Defendants-Appellants’ Brief at 32. The Commonwealth's decision
to retain these specimens indefinitely will virtually assure that the DNA
Database will constitute an enormous system of personal data.7
Even if the Fourth Amendment balancing test for "reasonableness" would
somehow permit the compelled collection of DNA samples, there can be no
dispute that the justification for holding those samples decreases with the
passage of time from an inmate’s release and virtually disappears on his or
her death. The effect of the unlimited retention period is of great
significance because large numbers of inmates will return to society. As a
result, this inmate DNA Database will, over time, be transformed into a
citizen DNA database. Any use or disclosure of a DNA specimen belonging to a
discharged individual would be a new "search" governed by the standards
applicable to ordinary citizen searches. Skinner, 489 U.S. at 616, 619
("Obtaining and examining the evidence may also be a search . . . . The
ensuing chemical analysis of the sample to obtain physiological data is a
further invasion of the tested employee's privacy interests."). The infinite
retention period of these DNA samples cannot be reasonably related to its
stated purpose for collecting these specimens. Indeed, upon any objective
analysis, the unlimited retention period bears no relationship at all to the
need to fight recidivism. Once the information required for identification has
been deduced, the samples are no longer needed for that purpose. Accordingly,
the DNA Database described by the Commonwealth constitutes an overly broad
invasion of privacy and fails to withstand the Supreme Court's Fourth
Amendment test. See Skinner, 489 U.S. at 619.
C. The DNA Database's Lack of Procedural Regularity and
Safeguards Renders the Seizure of DNA Samples Unreasonable and Violates the
Fourth Amendment
Procedural regularity is another prerequisite of a search or seizure that
is "reasonable" under the Fourth Amendment's balancing test. The absence of
adequate protections against improper disclosure or misuse of the DNA samples
by Department of Correction (or other government agents) also renders the
Commonwealth's DNA Database program constitutionally infirm.
1.1. The Commonwealth cannot dispute that its rules and regulations
governing the DNA Database are inadequate.
To observe a concrete example of the Commonwealth's lack of concern for
procedural regularity, one only has to examine the manner in which the
Commonwealth has developed procedures for the DNA Database. The current
regulations were issued only after this litigation against the Commonwealth
was commenced and the plaintiffs noted the absence of such regulations in
Middlesex Superior Court. Even now, the director of the DNA Database project
concedes that he has no information systems plan for the database, despite the
express requirement of such a plan of 515 CMR § 2.07. (Add., M) This course of
conduct by the Commonwealth speaks clearly about the Commonwealth's intentions
with respect to the storage and use of these DNA samples.
2.2. The Commonwealth has not implemented appropriate controls
over the use of the DNA samples in its DNA Database.
According to the authorizing legislation, the data in the DNA Database will
be used to identify potential criminals. That legislation, however, does not
preclude other uses for that data. See Mass. Gen. L. ch. 22E, § 10. A.0044.
Indeed, under the Commonwealth’s current rules and regulations, it places
virtually no restrictions upon the dissemination of the information contained
in the DNA specimens once they are collected, and does not seek the consent of
those whose privacy rights are thereby subject to abuse.8
The need for comprehensive and complete procedural safeguards for these DNA
samples is especially compelling if they are to be held in the DNA Database
for a substantial period after the release of an inmate. These safeguards must
anticipate the wide variety of situations that certainly will arise once
inmates return to society. Not only has the Commonwealth failed to provide any
safeguards, but the history of this program suggests that it will provide no
such protection for these individuals until it is faced with no other
choice.
An inmate’s DNA information should be considered in the same light as their
medical records. A fundamental protection usually given to a person's medical
records is the right to consent to their release.9
However, the Commonwealth’s regulations do not treat DNA specimens with the
care and confidentiality that medical records usually require and frequently
do not even provide for notice of, let alone consent to, the release and use
of an individual's DNA.10
Although DNA-related technologies are relatively new, there are already
numerous examples of genetic discrimination that have taken place because of
uncontrolled or careless release of DNA and the information contained therein.
See, e.g., J. Alper, et al., Genetic Discrimination and Screening for
Hemochromatosis, supra at H.
Experience shows that greater protections can and have regularly been
imposed for confidential medical information. Mass. Gen. L. ch. 111, § 70F
(HIV status). Similar appropriate and reasonable restrictions must be placed
upon the highly sensitive specimens that are being collected and stored in the
Commonwealth’s DNA Database. Inmates are entitled to no less protection than
this under the Fourth Amendment and article 14 of the Massachusetts
Declaration of Rights. Cf. Pacella v. Metropolitan District Comm’n, 339 Mass.
338, 346, 159 N.E.2d 75, 81 (1959) ("Certainly, also, the most careful
scrutiny in the public interest is appropriate in any case where
specifications appear to have a restrictive effect and possible discriminatory
impact.").
CONCLUSION
The Commonwealth of Massachusetts’ State Police DNA Database program, if
fully realized, will collect, maintain, and can ultimately release private and
highly sensitive information belonging to thousands of Massachusetts inmates,
parolees and probationers. As it is currently operated, the DNA Database poses
a grave threat to the federal and state constitutional rights of all those who
are compelled to provide DNA specimens for inclusion in that database. This
threat is not grounded in a hypothetical fear of the creation of A Brave New
World; the plaintiffs’ fear is a rational one, based upon a logical analysis
of the form and substance of the DNA Database. Considering the massive amount
of sensitive information that it collects and maintains, the DNA Database
program is overly broad and dangerously lacking in procedural safeguards.
For the foregoing reasons, the Council for Responsible Genetics joins
Donald Landry and the other plaintiffs-appellees in this matter and
respectfully requests that the judgment below be affirmed.
THE COUNCIL FOR RESPONSIBLE GENETICS
By its attorneys,
______________________________
Colin J. Zick, BBO# 556538
Nancy
N. Serrano, BBO# pending Foley, Hoag & Eliot LLP
One Post Office
Square
Boston, MA 02109
Dated: February 9, 1999
CERTIFICATE OF SERVICE
I, Nancy N. Serrano, an attorney for The Council for Responsible Genetics,
hereby certify that on February 9, 1999 I served the accompanying Brief on all
parties by causing two copies of the same to be hand delivered, to each of the
following: Gregory I. Massing, Esq., Rosemary S. Gale, Esq., Assistant
Attorneys General, One Ashburton Place, Boston, MA 02108; and Benjamin H.
Keehn, Esq., Appellate Attorney, Public Defender Division, Appeals Unit, 470
Atlantic Avenue, Suite 700, Boston, MA 02210.
Signed under the penalty of perjury.
_________________________
Nancy N. Serrano
ADDENDUM
Tab A Affidavit of Donald E. Riley, Ph.D, dated December 17, 1998.
Tab B N. Angier, "Matter Over Mind? The Curse of Living Within One's
Genes," New York Times, p. D1, December 18, 1994.
Tab C P. Billings, et al., Discrimination as a Consequence of Genetic
Testing, 50 Am. J. Human Genetics 476, 481 (1992).
Tab D K. Hudson, et al., "Genetic Discrimination and Health Insurance: An
Urgent Need for Reform," Science, v. 270, October 20, 1995.
Tab E Council for Responsible Genetics, "Genetic Privacy: A Discussion
Paper on DNA Data Banking," at 6 n.4 (1994).
Tab F "Questions Concerning Biological Risk Factors for Criminal Behavior,"
(Mass. Dept. of Correction/Mass. Dept. of Public Health, June 30, 1996).
Tab G 1 Harrison’s Principles of Internal Medicine (12th ed. 1991)
(excerpt).
Tab H 2 Harrison’s Principles of Internal Medicine, (12th ed. 1991)
(excerpt).
Tab I M. Linden, B. Bender, A. Robinson, "Sex Chromosome Tetrasomy and
Pentasomy," Pediatrics, Vol. 96, No. 4 (October 1, 1995).
Tab J D. Owen, "The 47, XYY male: A Review," Psychological Bulletin, 78
209-233 (1972).
Tab K J. Alper, et al., Genetic Discrimination and Screening for
Hemochromatosis, 15 J. Pub. Health Policy 345, 349-50 (Autumn 1994).
Tab L 1996 Mass. Acts, ch. 12, § 2.
Tab M December 30, 1998 letter from John G. Molloy, Staff Counsel,
Massachusetts State Police and related correspondence.
NOTES:
1A human
chromosome is a structure found in the nucleus of each cell which contains a
linear thread of DNA and which transmits genetic information. DorlandÕs
Illustrated Medical Dictionary at 267(26th ed. 1994). About "1 in 350 newborn
males has the complement 47,XXY or 47,XYY." 2 HarrisonÕs Principles of
Internal Medicine at 50 (12th ed. 1991). (Add., H)
2A human
chromosome is a structure found in the nucleus of each cell which contains a
linear thread of DNA and which transmits genetic information. DorlandÕs
Illustrated Medical Dictionary at 267(26th ed. 1994). About "1 in 350 newborn
males has the complement 47,XXY or 47,XYY." 2 HarrisonÕs Principles of
Internal Medicine at 50 (12th ed. 1991). (Add., H)
3Members
of the military face an analogous situation with regard to their rights as
citizens. Chappell v. Wallace, 462 U.S. 296, 304 (1983) ("[O]ur citizens in
uniform may not be stripped of basic rights simply because they have doffed
their civilian clothes.")(quoting Warren, The Bill of Rights and the Military,
37 N.Y.U. L. Rev. 181, 188 (1962)); Committee for GI Rights v. Callaway, 518
F.2d 466, 476 (D.C. Cir. 1975) ("GIs are entitled to the protection of the
Fourth Amendment as are all other American citizens"); "[O]ur citizens in
uniform may not be stripped of basic rights simply because they have doffed
their civilian clothes." Laurence H. Tribe, American Constitutional Law, at
1331-32 (2nd ed. 1987).
4In Katz,
the Supreme Court erected an analytical framework grounded in an individual's
"reasonable expectations of privacy" rather than merely focusing upon the
means by which private information had been obtained. Katz, 389 U.S. at 362;
Breest v. DuBois, 1997 WL 449898 at 188711 (Mass. Super. 1997) (Fremont-Smith,
J.) (stating that "[T]he confidential nature of communications between an
inmate and his clergyman or mental health professional is well recognized in
Massachusetts . . . .").
5Although
the current regulations call for only a blood sample for inclusion in the DNA
Database, other such plans (such as that implemented by the Department of
Defense) include scraping of cells from inside the cheek. The Supreme Court's
past decisions strongly suggest that entering someone's mouth in order to
obtain a DNA sample also constitutes an invasive search and seizure. Rochin v.
California, 342 U.S. 165 (1952) (discussing invasiveness of certain police
actions, including the opening of a person's mouth to remove something, and
holding that such actions violated the Constitution).
6These
DNA records will likely be shared with the FBI and its DNA database. The FBI,
like the Commonwealth, has no provision for expunging records or destroying
the DNA samples taken from them. See 42 U.S.C. §§ 14131-14344.
7Ironically,
the burden of locating the specimens would be substantially increased by the
removal of outdated specimens.
8One of
the state statutes that regulate the release of genetic information, Colorado
Revised Statute 10-3-1104.7, expressly recognizes that such information "may
be subject to abuses if disclosed to unauthorized third parties without the
willing consent of the individual to whom the information pertains." C.R.S.
10-3-1104.7(1)(b). The penalty for violations of this statute can range up to
$150,000 in any six month period.
9See,
e.g., Cal. Civ. Code, § 56 (Califor nia); Colo. Public Health Law, §
2803-C(3)(f) (Colorado); Fla. Stat. 395.3025(4)(d) (Florida); Ill. Rev. Stat.
ch. 110, ¦ 8 and 210 ILCS 45/1-101; 210 ILCS 45/2-104(d), 2-206 (Illinois);
Maryland Health-Gen. § 4-301 et seq. (Maryland); Mass. Gen. L. ch. 111, § 70
(Massachusetts); Mich. Comp. Laws 333.20201(2)(c) (Michigan); Nev. R.S.
449.720(4); N.Y. Pub. Health Law, § 2803-c and 8 NYCRR 29.1(b)(8) (New York);
O.R.S. 179.505 and 192.525 (Oregon); Tex. Rev. Civ. Stat. Ann. Art. 4447(d)
(Texas); see also Annotation, Physician- Patient Privilege as Extending to
Patient's Medical or Hospital Records; 10 A.L.R.4th 552 (1981); Annotation,
Physician's Tort Liability for Unau thorized Disclosure of Confidential
Information About Patient, 48 A.L.R.4th 668 (1986).
10 See
Warren and Brandeis, "The Right to Privacy," 4 Harv. L. Rev. 193 (1890);
Whalen v. Roe, 429 U.S. 589, 599 (1977) (discussing privacy interests under
the Constitution, including interests "in avoiding disclosure of personal
matters, and another is the interest in independence in making certain kinds
of important decisions."). Medical information is included in this type of
privacy interest. Henson v. Florez, 1993 U.S. App. LEXIS 29448 at *3 (9th Cir.
1993); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3rd Cir.
1980) ("There can be no question that an employee's medical records, which may
contain intimate facts of a personal nature, are well within the ambit of
materials entitled to privacy protection.")
