ALBANY (Jan. 10, 2023) – A bill filed in the New York Senate would prohibit the use of DNA ‘phenotyping’ in criminal prosecutions and proceedings.
Sen. Michael Gianaris (D) introduced Senate Bill 226 (S226) on Jan. 4. The legislation would prohibit state and local law enforcement agents from contracting for DNA phenotyping services. I would also bar them from making arrests based on evidence that results from the practice. Any such evidence would be inadmissible in court.
Phenotyping is defined as “the process of predicting a person’s physical biometric information and other observable physical or biochemical characteristics, ancestry or familial connections based on an analysis of such person’s DNA.” In practice, the process can be used to build a composite of a person’s likeness and allows authorities to profile potential suspects with clues to hair and eye color, facial shape, skin color, sex, and more.
GETTING FEDS OUT OF THE LOOP
DNA searches are widely viewed as a Fourth Amendment issue. By banning DNA phenotyping, New York would 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 or not DNA phenotyping 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 using DNA phenotyping. 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?
Banning DNA phenotyping at the state level would also help keep information out of federal databases.
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
If data doesn’t exist, it can’t be shared with the feds through this vast information network.
S226 was referred to the Senate Codes Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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