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DNA Collection

LEGAL CASE

DNA Collection

EFF has long been concerned about the privacy risks associated with the collection, testing, storing and sharing of genetic data. DNA contains an extensive amount of sensitive personal information beyond mere identifying information and has the potential to reveal intensely private details about a person’s life and future, including who they're related to, their propensity for disease and perhaps even their behavioral tendencies.

DNA analysis is also not necessarily accurate or reliable. In several known cases, DNA has linked a person to a crime he or she didn’t commit. In other cases, labs have screwed up the DNA analysis, threatening people’s civil liberties in the process. In 2015, for example, the San Francisco Chronicle revealed a crime lab analyst had been making assumptions about poor-quality, incomplete genetic evidence and falsely linked a DNA profile to the defendant in a case. This analyst’s misconduct could affect as many as 1,400 cases.

As law enforcement agencies across the country have collected DNA from broader classes of people each year, we've challenged that collection by filing amicus briefs in state and federal courts. We've also filed multiple public records requests with local, state and federal agencies to learn more about their DNA collection practices and published a white paper on issues related to collecting DNA and other biometrics.

In the last few years, we've become increasingly concerned about new technology called Rapid DNA that will, in the near future, allow the average police officer on the street to stop anyone and collect and process their DNA. Using Rapid DNA analyzers—portable machines that allow non-scientists to process a DNA sample out in the field in as little as 50 minutes—the police can collect a DNA sample, extract a profile and match that profile against a database in less time than it takes to book someone.

There are currently no standards governing the use of Rapid DNA—who can use the tools, and when and from whom DNA may be collected. And because police don't need to rely on an accredited lab to use Rapid DNA, the profiles generated using Rapid DNA analyzers can't be included in the FBI's national DNA database or in the Combined DNA Index System (CODIS). This has encouraged local agencies to create their own local DNA databases—often called "rogue databases"—to include the DNA profiles that don't necessarily meet the FBI's standards.

The lack of standards governing Rapid DNA's use is also problematic because the accuracy of Rapid DNA has only been tested on single-source samples—like a swab taken directly from a person’s inner cheek. Rapid DNA is not reliable and should not be used for crime scene samples where DNA may have come from multiple sources. And yet, Rapid DNA manufacturers are trying to convince law enforcement agencies to buy these machines to get through their backlog of rape kits and for low-level property crimes—situations where there's a very good chance the DNA came from multiple people—some of whom may have had no connection to the crime at all.

Before the FBI can incorporate Rapid DNA-generated profiles into CODIS, Congress must update DNA laws and the FBI must revise its strict guidelines, both of which control DNA data. FBI officials have been briefing Congress on the Bureau's plans and giving talks about the program at biometric industry conferences, but they've disclosed little to the communities that will be affected by Rapid DNA collection.  

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