Proposed use of instant DNA testing by Homeland Security.

March 4, 2011 @

By Michael Connelly

The use of portable DNA testing devices by the Department of Homeland Security raises several issues with Constitutional implications. While it is true that the courts have held that DNA testing of defendants or suspects in criminal cases does not violate the 5th Amendment protection against self incrimination, Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), Jones v. Murray, 962 F.2d 302 (4th Cir.1992), Wilson v. Collins, 517 F.3d 421 (6th Cir. 2008), there are no court cases that have approved of random mass DNA testing.

The United States Supreme Court and lower courts look on DNA like fingerprints, but most jurisdictions still require that there be probable cause for suspicion of criminal wrongdoing, prior to testing it, and that if a person refuses to give a DNA sample voluntarily a warrant must be obtained. However, the purpose here seems to be to use this testing at checkpoints, and use it on a mass scale without any specific probable cause for running the test on any individual.

The idea of using DNA testing to stop human trafficking, or illegal immigration, sounds like a good idea, but how will that be done. Will it be used at border crossings, at airports, and at ports on everyone, including American citizens returning from a cruise, or a trip overseas? Will it also be eventually used by TSA to screen passengers boarding trains and planes, since TSA is reportedly expanding its operations to bus and train stations?

As I pointed out in my previous memorandum on the TSA body scans, the courts will allow some searches to protect the public from terrorism but there are certain criteria that must be met. Any searches must be minimally intrusive on the individual being searched and, the searches must be effective in screening out weapons and/or terrorists Illinois v Lidster 540 U.S. 419, 124 S. Ct. 885 (2004). Certainly, someone having his DNA taken, and then waiting up to an hour for the result, is being subjected to an intrusive and time consuming process. In airport situations it would also still be necessary to go through the other screening processes. A DNA sample will not tell authorities if the person is armed and will only pinpoint them as a terrorist if the individual’s DNA is already on file somewhere and a comparison is made.

There is no question that these tests will constitute warrantless searches based on an overly broad criteria and will probably violate the 4th Amendment rights of individuals in most cases. Then there is the issue of what is done with the results. If nothing suspicious is found will the sample be destroyed or added permanently to a national DNA data base?

The whole concept of the use of these devices seems to be based on a vague idea that they could be useful to Homeland Security in some way. Unfortunately, it appears that no effort has been made to even consider the Constitutional privacy issues involved with such testing. Therefore it appears to be just another way to have the government monitoring and tracking American citizens.

3 Comments → “Proposed use of instant DNA testing by Homeland Security.”

  1. Genetic Nationalist

    8 years ago

    Homeland Security is finally waking up. A global genetic database must be built.

  2. sivadasan

    8 years ago

    Can we install the ancestor abilities in our DNA?

  3. HH

    6 years ago

    I hope Genetic Nationalist is joking. No mass DNA database, global or domestic, should EVER be established. I’m sick and tired of hearing, “Why won’t you let me search your car/take your fingerprints/take your DNA if you haven’t done anything wrong?”

    We should be asking THEM, “What legal grounds do you have to search my car/take my prints/take my DNA? What evidence do you have that you need my consent for this?”

Recent News

© 2020 United States Justice Foundation.