SAN FRANCISCO _ A trio of civil liberties groups is suing the California Department of Justice over its practice of collecting and retaining the DNA profiles of people who were arrested for alleged felonies but never convicted, calling it a government overreach that violates constitutional privacy protections and rights against unlawful search and seizure.
California police agencies' collection of DNA profiles at the time of a felony arrest has been in place since 2009, but recent advances in DNA analysis technology _ where results come back in a matter of hours rather than weeks _ and the passage of a related congressional bill last year have significantly raised the stakes on the issue.
The lawsuit was filed Monday in San Francisco Superior Court by the Electronic Frontier Foundation, representing the Equal Justice Society as well as the Center for Genetics and Society and consultant Pete Shanks.
"One-third of people arrested for felonies in California are never convicted. The government has no legitimate interest in retaining DNA samples and profiles from people who have no felony convictions, and it's unconstitutional for the state to hold on to such sensitive material without any finding of guilt," Marcy Darnovsky, executive director at the Center for Genetics and Society, said in a statement.
The office of California Attorney General Xavier Becerra did not immediately respond to a request for comment. But the lawsuit and its chief argument is sure to be met with pushback from law enforcement groups and the purveyors of what is known as Rapid DNA technology, which includes Pleasanton-based IntegenX.
Rapid DNA, which has carved the time for producing a profile from genetic material to as quickly as 90 minutes, has garnered an increasingly prominent profile. Most recently, it has been instituted to accelerate identification of victims of the historically destructive Camp fire in Butte County, and has been used to help solve a string of famous cold-case murders in the state and across the country over the past year.
As the technology grew, privacy watchdogs and civil-rights groups have been wary of its combination with the national DNA profile database maintained by the FBI, that contains upwards of 13 million criminal suspects, not all of them convicted of a crime.
The Rapid DNA Act of 2017, passed with a bipartisan vote in Congress last year, allows law enforcement agencies to perform real-time DNA testing at the time of an arrest at their own booking stations, comparing samples to profiles in the FBI's Combined DNA Index System (CODIS). While some of that might already be happening, the FBI has set a timetable for 2019 to test a more robust integration.
Critics say such expansion increases the likelihood of people arrested being treated, in the eyes of law enforcement, automatically as felons, and being denied due process. They cite the occurrence of lab mix-ups and sample contamination as examples where a legally innocent person's inclusion in the DNA database could wrongly implicate them in a crime, with pronounced effects on people of color given their disproportionate representation in the criminal justice system.
"The overexpansion of the CODIS database and California's failure to promptly expunge profiles of innocent arrestees exploits and reinforces systemic racial and socio-economic biases," Lisa Holder, interim legal director at the Equal Justice Society, said in a statement. "We want the court to recognize that California's DNA collection and retention practices are unfairly putting already vulnerable poor communities and people of color at even greater risk of racial profiling and law enforcement abuse."
Michael Risher, a former staff attorney at the ACLU in Northern California serving as co-counsel for the plaintiffs, told this news organization last year that police can still collect DNA from suspects, just not automatically. Investigators, he said, should use the same information that leads to an arrest to apply for a warrant to get a DNA sample.
Another contention by the plaintiffs in Monday's lawsuit is that the process for legally innocent people to purge themselves from the database is complicated, poorly publicized, and unreasonably difficult to navigate. The plaintiffs estimated that 750,000 DNA profiles collected by California police agencies in the past decade were eligible to be expunged because the people were either exonerated or acquitted, but only 1,510 made such requests, and of those 1,282 were approved. That amounts to a 0.1 percent removal rate.
"Our DNA contains our entire genetic makeup _ private and intensely personal information that maps who we are and where we come from," EFF Staff Attorney Jamie Lee Williams said in a statement. "The state's failure to automatically expunge DNA samples and profiles from the hundreds of thousands of Californians who were not ultimately convicted of a crime is unconstitutional."
