In a disappointing and deeply divided opinion released today, the California Supreme Court upheld a state law law mandating DNA collection from arrestees. A lower court had held this law violated the privacy and search and seizure protections guaranteed under the California constitution. Today’s decision lets this flawed law stand.

The case, People v. Buza, involved a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. California law allows police to collect DNA from anyone arrested on suspicion of a felony—without a warrant or any finding by a judge that there was sufficient cause for the arrest. The state stores arrestees’ DNA samples indefinitely, and allows DNA profiles to be searched continuously by local, state, and federal law enforcement agencies.

EFF first weighed in on the case in 2012 and again in 2015, filing amicus briefs arguing the state’s constitution prohibits the collection of DNA from arrestees because of the severe impact DNA collection has on our right to privacy. Our DNA contains our entire genetic makeup—private and personal information that maps who we are, where we come from, and whom we are related to.

In our brief, we noted California’s law sharply impacts tens of thousands of innocent Californians every year—nearly a third of the more than 400,000 people arrested for suspected felonies in California each year are never charged with or convicted of a crime. However, law enforcement can and has collected DNA from all of them. Their DNA remains in the state database, and state rules make it almost impossible to get it expunged or removed.

California Supreme Court Justices Liu and Cuellar agreed in separate dissenting opinions that the law’s massive impact on privacy should have proved fatal under the California constitution. Justice Cuellar recognized California’s constitutional right to privacy protects not just our right to self-determination over our bodies but also our rights to privacy of our personal information and our dignity. He noted that focusing solely on the somewhat minimal impact on bodily privacy posed by the initial cheek swab to obtain DNA is not enough. The fact that the state retains, processes, and continually searches individuals’ DNA samples “is a far more significant invasion of an arrestee’s privacy.” This is because, Justice Cuellar says:

“A DNA sample stored by the state contains an arrestee’s entire genetic code — information that has the capacity to reveal the individual’s race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, pre-disposition to certain traits, and even the propensity to engage in violent or criminal behavior.”

However, like the U.S. Supreme Court’s 2013 opinion in Maryland v. King, the Buza majority accepted the government’s argument that a DNA sample is no different from a fingerprint and that the government’s interest in “identifying” an arrestee outweighs the arrestee’s right to privacy. But, as Justice Liu notes in his dissent, “This is not a scheme carefully calibrated to identify felony offenders. Instead, it can be fairly described as a biological dragnet”—a dragnet that disproportionately impacts African Americans. “The fact that felony arrests of African Americans disproportionately result in no charges or dropped charges means that African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining.”

Both dissents also take the majority to task for relying too heavily on the federal Supreme Court’s opinion in King and failing to exercise their independent jurisdiction to evaluate California’s law under the state’s own constitution. The California constitution, like other states, has a provision parallel to the Fourth Amendment that protects state residents from unlawful searches and seizures. However, unlike the federal constitution, California’s constitution also has a provision that expressly recognizes and protects a right to privacy. This difference, combined with significant differences between California’s law and Maryland’s law addressed in King, should have tilted the court toward finding California’s law unconstitutional. 

The majority takes great pains to emphasize that its ruling is narrow and limited to someone in Mr. Buza’s position—a person arrested while in the act of committing a serious felony like arson. The court says that someone else arrested in the future absent probable cause could have a “valid as-applied challenge to the adequacy of the DNA Act’s expungement procedures or to application of the Act’s other operative provisions, in addition to the other remedies available for unlawful arrest.”

Justice Liu doesn’t agree the court’s holding is narrow. “One need not be a diehard civil libertarian to have serious qualms about where all of this may lead.” He notes the same reasons put forward by the government to justify this law could be applied to any circumstances for which the state collects fingerprints today—including from any law-abiding person who applies for a driver’s license or attends a public school. “Such broad-based policies would similarly aid law enforcement while having the virtue of being less discriminatory in their effects,” Justice Liu wrote.

 So what happens now? California can still correct the more serious problems with the law. In 2015, after the state supreme court granted review in Buza, the California legislature enacted changes to the DNA collection statute that would have gone into effect had the court found the statute unconstitutional. These provisions would have provided for automatic expungement and for delay in analyzing samples until a judge determines probable cause justifies an arrest. Even though the state supreme court did not invalidate California’s law, these provisions could still go into effect. The original DNA Act approved by California voters allows the legislature to amend the law "by a statute passed by each house of the Legislature that furthers the purpose of the measure." Absent that, California voters could amend the law through the initiative process. We urge the state legislature to protect Californians’ civil rights and fix the worst parts of California’s DNA law.