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DNA Mass Surveillance and Privacy

Mark Tunick

June 21, 2023

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Maryland v. King�569 US 435 (2013)

  • Alonzo King (pictured at right) was arrested in 2009 for using a shotgun to menace people
  • Maryland collects DNA samples from arrestees and collected King’s DNA (using cheek swab)
  • 3 months after the arrest, DNA from an unsolved rape case of 2003 was crosschecked with King’s DNA: it matched, and he was convicted of rape

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The case for mass DNA surveillance

  • The more samples we collect and store, the better
    • Helpful: Those convicted
    • Even better: Those arrested
    • Ideally: Everyone
  • More crimes would be solved
  • Fewer crimes will be committed

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Should we allow mass collection of DNA samples?

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The idea of a “right” to privacy: we have a right to privacy if we have a legitimate interest in privacy that outweighs competing interests

  • Interests are more than desires: they are tied to our welfare
    • You desire your favorite basketball team wins tonight
    • You own the team, or bet on the team: you now have an interest that they win
    • If you have an interest (vs a desire), your welfare is at stake
  • Do you have a right to refuse a Covid-19 vaccine?
    • Because you don’t like needles? (no)
    • Because you believe you’d be eternally damned? (maybe)
    • Even if you have a legitimate interest, it can be outweighed by competing interests (need for herd immunity)

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We have a right to privacy if:

  1. We have a legitimate interest in privacy

(you can’t legitimately expect privacy in some cases)

  • That interest outweighs competing interests

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We have a right to privacy in not having our DNA collected and stored if our interest in privacy outweighs legitimate public interests in having it on file

Privacy

Public Safety

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What are the competing legitimate public interests in having a mass DNA database?

  • Private individuals or corporations knowing about your genetic makeup? (no)
  • Government interest in solving crimes?
    • In enforcing laws against adultery or marijuana use? (no)
    • In enforcing laws to prevent harm (yes)

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What is the weight of our privacy interests? (Why is informational privacy valuable?)

  • Reputation (Dog Poop Girl)
  • Avoid economic harms
  • Control how you appear to different groups (Oliver Sipple, bottom right)
  • Non-consequentialist reasons
    • Dignity (Kant, Stanley Benn)
    • Trust (Scott Sundby)

Dog Poop Girl

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How do we weigh the competing interests?

  • Utilitarian approach

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  • With DNA of everyone on file, what are
      • the benefits?
      • the disutility?
  • Can we know:
    • The benefits? (can we know a counterfactual: would we have caught the criminal without the DNA evidence?)
    • The costs?

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Jeremy Bentham, Utilitarian (1748-1832)

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�Alternative approach : strict scrutiny�

    • If a fundamental right is at stake (such as privacy), to limit that right government must have tremendous justification
      • It must pursue a compelling purpose
      • There must be no less intrusive alternative ways of achieving this compelling purpose

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    • Would Mass DNA surveillance pass this ‘strict scrutiny’ test?
      • Is there a compelling purpose?
        • Example of writs of assistance preceding revolutionary war
      • Are there less intrusive alternative ways of achieving this compelling purpose?�