SB 156: Warrantless DNA Searches
Senate Bill 156 enables unconstitutional searches by allowing law enforcement to compel private companies to turn over DNA data.
The power of DNA — and the extent of the specific information it reveals — is already far reaching and will only increase as science continues to advance. For example, the ability to “reverse engineer” DNA to accurately predict an individual’s physical appearance — including skin, eye, and hair color — is no longer science fiction. It is reality.
Although the advancement of science is noble, for freedom to continue, government use of emerging technologies, particularly in an attempt to investigate criminal offenses, must remain within constitutional boundaries.
Libertas has addressed this issue before. In 2020 we supported Representative Hall’s HB 231 which would have prohibited DNA searches without individualized suspicion required by the Fourth Amendment. We have further expressed our strong support for individual privacy in DNA in an in-depth policy brief.
These issues have resurfaced in SB 156, sponsored by Senator Todd Weiler, which allows law enforcement agencies to obtain your genetic data from private companies without a warrant. Officers simply need “reasonable grounds” that a DNA sample belongs to someone who committed a crime. And rather than getting a judge to sign off, officers only need to work with prosecutors to “consult and agree” that a “search is an appropriate and necessary step.”
The bill only allows these types of searches in some types of cases. However, law enforcement is encouraged to interpret “qualifying cases” broadly and the categories are vaguely defined, such as “crimes in which the public safety is critically threatened.” Lack of concrete definitions invites inconsistent application of law, a problem in its own right.
Under the bill, law enforcement cannot request a DNA search from a private company (such as Ancestry or 23andMe) unless a search of the FBI’s database, CODIS, returns no results. However, unconstitutional searches are not justified because of convenience.
Lastly, this bill allows law enforcement to access DNA samples of individuals who are not suspected of committing a crime. “Kinship inferences” identify possible biological relatives of the individual whose DNA was run through the database, thus assisting law enforcement in identifying possible suspects of a crime. While potentially useful, anyone who has submitted DNA to a private company could have their sensitive, genetic information turned over to police even if they are not a suspect.
The Fourth Amendment of the Constitution protects individuals from unreasonable searches and seizures. Reasonable searches must be based on probable cause (in other words, there must be enough evidence to suggest a crime has been committed) and be narrowly tailored to a particular person (as opposed to a bulk search or “fishing expedition”). SB 156 permits searches that meet neither of these requirements.
SB 156 is unnecessary and unconstitutional. Law enforcement already has an avenue through which they can run DNA samples. The warrant process ensures that law enforcement focus their investigations on suspects only.