san francisco

A Massachusetts Superior Court judge has barred the state police from demanding DNA samples from prisoners, parolees and probationers. This is one of the first US court decisions asserting privacy rights to stop DNA data banking.

In striking down the statute, Judge Isaac Borenstein said that compulsory blood sampling violated the privacy guaranteed to US citizens under the Fourth Amendment. He impounded 1,200 samples, saying the law's enactment in January amounted to “unreasonable search and seizure”.

All 50 US states have laws establishing a forensic DNA database for convicts. Few have been contested in court, and all those have withstood the challenge. Paul Billings, a medical geneticist who supported the Massachusetts plaintiffs, said the ruling showed a balancing trend. “There are beginning to be decisions that show there have to be rules — that all this ethics stuff isn't blowing smoke.”

Borenstein ruled that “regardless of the state's compelling interest, an unjustified random bodily intrusion without any indication of individualized suspicion is unreasonable and intolerable”.

The state plans to appeal. Assistant attorney general Elisabeth J. Medvedow says the law enforcement value of the database outweighs the intrusion. The DNA bank would help police find missing people, solve crimes and deter illegal conduct, she says.

The statute allows the permanent storage of DNA samples collected from people convicted of any one of 33 crimes ranging from murder to dissemination of obscenity. The material would be used for law enforcement and — after all identifiers had been removed — for broadly defined research purposes including those that might advance methods of DNA banking and statistical analysis. The plaintiffs argued that this creates a second invasion of privacy, because of the open-ended possibilities for using the data, despite the promise of anonymity.

Frederick Bieber, a forensic geneticist in the department of pathology at Harvard University, testified in favour of the law. He pointed to the high rate of repeat offences in Massachusetts: 26 per cent of convicts who have committed crimes listed in the statute offend again within a year of release.

“From my point of view it's an issue of public safety, victims' rights and preventing future crimes,” he says. He adds that permanent storage of samples would be important in the development of improved forensic DNA technology — for example, for use in validating systems using new markers.

State senator James Jajuga, who joined the governor in proposing the statute, says he hopes the database will one day help prevent crimes. Studies of the DNA bank might yield a ‘criminal’ DNA profile that could help predict which parolees or probationers were likely to commit further crimes, and identify how to use education, drug therapy or counselling as preventive measures, he says.

Jajuga acknowledges the controversy over such research, but says he feels it could be done fairly. “Obviously we want to be careful with this; there's no question we don't want it to be abused,” he says. But Paul Billings questions the science behind hunting for a ‘recidivism gene’ — and lawyers for the plaintiffs decry the civil-rights implications.

“The law is a blueprint for genetic engineering,” says Benjamin Keehn of the Committee for Public Counsel Services in Boston. If prisoners could be tested on the basis of a 26 per cent recidivism rate, he suggests, so could all African American males, who on average have a 28 per cent chance of spending time behind bars.

Keehn says that scientists thinking of potentially beneficial results of genetic research need to be aware of how samples are being collected.