(June 28, 2021) – Bills signed into law in Maryland and Montana restrict warrantless law enforcement access to private DNA databases, preemptively taking the issue out of the purview of federal courts.

In Maryland, Del. Emily Shetty (D) sponsored House Bill 240 (HB240). Under the law, police must get court authorization based on probable cause before using information from private DNA databases such as Ancestry or 23andMe. The law also limits the type of cases police can use private DNA data to murder, rape, felony sexual offense, or a “criminal act involving circumstances presenting a substantial and ongoing threat to public safety or national security.”

In Montana, Rep. Mallerie Stromswold (R) sponsored House Bill 602 (HB602). Under the law, police cannot obtain information from a consumer DNA database without a search warrant based on probable cause. The warrant requirement is absolute for a “familial DNA search” defined as ““specialized software to detect and statistically rank a list of potential candidates in the DNA database who may be a close biological relative to the unknown individual contributing the evidence DNA profile.” The law also requires a warrant for direct searches of DNA databases unless “the consumer whose information is sought previously waived the consumer’s right to privacy,”

Getting Federal Courts Out of the Loop

DNA searches are widely viewed as a Fourth Amendment issue. By passing laws to require a warrant at the state level, Maryland and Montana take the issue out of the purview of federal courts.

This is an important step given how the federal judiciary has gutted the Fourth Amendment over the years. Federal courts have created all kinds of exceptions to the privacy protections and the warrant requirement in the amendment and applied them across the entire United States through the dubious “incorporation doctrine.”

This legal doctrine was invented out of thin air by the Supreme Court based on the 14th Amendment and purportedly empowers the federal government to apply the Bill of Rights to the states. Without this made-up court doctrine, this wouldn’t be a federal issue to begin with.

To date, the Supreme Court hasn’t issued an opinion on whether warrantless access to private DNA sites runs afoul of the Fourth Amendment. But in King v. Maryland, the Supreme Court held that forcibly taking DNA samples from individuals after an arrest doesn’t violate the Fourth Amendment even if the person wasn’t convicted of a crime. Given the Court’s track record, it seems likely it will ultimately give police some leeway in warrantlessly accessing DNA databases. When it does, this standard will apply to every state in the U.S.

Of course, the SCOTUS could issue an opinion in keeping with the intent of the Fourth Amendment. But do you want to take that chance?

The Electronic Frontier Foundation (EFF) argues that these DNA database searches violate the Fourth Amendment.

“Through FGGS, Law enforcement regularly accesses this intensely private and sensitive data. Just like consumers, officers take advantage of the genetics companies’ powerful algorithms to try to identify familial relationships between an unknown forensic sample and existing site users. These familial relationships can then lead law enforcement to possible suspects. However, in using FGGS, officers are rifling through the genetic data of millions of Americans who are not suspects in the investigation and have no connection to the crime whatsoever. This is not how criminal investigations are supposed to work. As we have argued before, the language of the Fourth Amendment, which requires probable cause for every search and particularity for every warrant, precludes dragnet warrantless searches like these. A technique’s usefulness for law enforcement does not outweigh people’s privacy interests in their genetic data.”

But the Federalist Society has already argued that a warrantless search of a private DNA database “does not implicate the Fourth Amendment’s prohibition against unreasonable searches and seizures requiring law enforcement to obtain a warrant, even under the most expansive reading of recent Supreme Court precedent.”

By passing bills requiring warrants to access these DNA sites, Montana and Maryland take their fate out of the hands of the Supreme Court. Law enforcement agents in these states will have to get a warrant no matter what the SCOTUS ultimately says.


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