The Privacy, Probability, and Political Pitfalls of Universal DNA Collection

Meghan J. Ryan, Southern Methodist University, Dedman School of Law

Abstract

Watson and Crick’s discovery of the structure of DNA (deoxyribonucleic acid) in 1953 launched a truth-finding mission not only in science but also in the law. Just thirty years later–after the science had evolved–DNA evidence was being introduced in criminal courts. Today, DNA evidence is heavily relied on in criminal and related cases. It is routinely introduced in murder and rape cases as evidence of guilt; DNA databases have grown as even arrestees have been required to surrender DNA samples; and this evidence has been used to exonerate hundreds of convicted individuals. DNA evidence is generally revered as the “gold standard” in criminal cases because, unlike eyewitness testimony, bite-mark evidence, hair analysis, and the like, it is considered nearly infallible. This potency of DNA evidence has led to suggestions that we, as a nation, should magnify the power of DNA by increasing the size of DNA databases. Several of these proposals have gone so far as to propose that we should collect DNA from every single American–that there should be universal collection of DNA. This article explains that, while the universal collection of DNA may be alluring, it imposes greater privacy burdens than typically suggested and may be less useful than one might imagine. Depending on whether individuals’ DNA profiles or samples are stored, and how they are analyzed, this may potentially provide the government–and other actors–with an unprecedented amount of private information about ordinary Americans. Further, because we live in a system with limited resources, investing in the universal collection of DNA will likely result in scaling down law enforcement resources elsewhere, such as by reducing the number of professional crime scene investigators or police officers on the street. These accompanying events will likely detract from any anticipated increase in crime-solving resulting from the universal collection of DNA and will likely overcome any progress made on that front.