On Nov. 1, the Ohio Supreme Court issued a startling — and unnecessary — opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual’s personal DNA profile. In the court’s words, “[a] person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample.”
The case, State v. Emerson, originally involved DNA evidence legally obtained from Emerson through a valid warrant in a rape investigation. Emerson was acquitted of the rape charge, but his DNA profile was kept in the Ohio DNA database. His DNA profile could then be searched again and again, anytime law enforcement compared a sample from a new crime scene with the DNA profiles in the database. Emerson was later convicted of murder, mostly due to a DNA match with a sample found at the scene of that crime.
The conviction in this case is not the issue. Courts around the country have applied the Fourth Amendment to DNA databases similar to Ohio’s. Courts have struck a balance between Fourth Amendment privacy interests and the substantial government interests in solving crimes through DNA, permitting the police to retain DNA profiles in some circumstances but not in others. The Ohio Supreme Court, in contrast, held that there is nothing to balance — because individuals have zero Fourth Amendment privacy interests in their DNA profile.
To be clear, the court recognized that individuals have a privacy interest in the DNA material itself — such as the blood, saliva or hair used to discover the DNA profile.
But assuming the government can lawfully get its hands on someone’s DNA material — which these days is relatively easy — the decision implies that the Fourth Amendment places no limits on what the government can do with the resulting DNA profile.
What makes this especially problematic is that DNA is not just a tool for identification, like fingerprints. DNA shows who we are on a microscopic level. DNA can tell someone your race, ethnicity, gender and the identity of your closest relatives. DNA can reveal whether you are at risk for a variety of medical conditions.
For example, assume an Ohio Supreme Court justice throws away a cup, and the government collects the trash and extracts a DNA sample — a lawful practice under the Fourth Amendment. Say the state then publishes the justice’s DNA profile on a public website, revealing genetic predispositions to certain illnesses. If the court had recognized that individuals do have a reasonable expectation of privacy in their DNA profile — as most courts around the country have done — it would have been free to evaluate whether particular government uses of a DNA profile are important enough to be “reasonable” under the Fourth Amendment.
But under the logic of the Emerson decision, the justice has no Fourth Amendment privacy interest in what the state does with the DNA profile, and so lacks standing in court to challenge the publication of the DNA profile.
New technologies like DNA testing continue to give law enforcement the ability to solve more crimes and better protect citizens.
But those same technologies threaten individual privacy, creating risks that the government might use deeply personal information for improper purposes.
The Fourth Amendment — which protects each of us against unreasonable searches and seizures — is a bulwark against such abuses.
Courts applying the Fourth Amendment should balance the privacy interests of citizens against the government’s interest in fighting crime. Instead, the Ohio Supreme Court established a categorical rule that threatens to have wide-ranging consequences for privacy.
Many other courts across the country have found ways to incorporate DNA technology into the law enforcement tool kit without wholly sacrificing individual privacy.
As these decisions show, it was not just unwise, but also unnecessary, to eliminate the Fourth Amendment entirely in this area.
The Ohio Supreme Court should have followed the example of other state high courts and upheld a person’s reasonable expectation of privacy in his or her own DNA profile.
Jonathan Witmer-Rich and Brendan Heil, Cleveland Plain Dealer