Court’s DNA Ruling Brings U.S. a Step Closer to ’Gattaca’
By Noah Feldman
Jun 3, 2013
The day that DNA cheek swabs officially became the new fingerprints deserves to be marked and remembered — and not just because of the inevitable march of technology.
No, the Supreme Court’s 5-4 holding today in Maryland v. King, that anyone arrested for a “serious crime” can have his or her DNA taken without any suspicion, is a landmark because it represents a major step toward a “Gattaca” world. This means that evidence of a crime can be collected without any particular suspicion, avoiding the pesky requirement of a warrant that the Founding Fathers thought would give us liberty and privacy.
Justice Anthony Kennedy’s majority opinion treats the standard collection of DNA samples from arrestees in Maryland as the logical outgrowth of the state’s interest in identifying the people it has arrested. This is a bit of a surprise from Kennedy, who can generally be counted on to embrace liberty. Yet in this case, he wrote, the state’s interest in keeping track of everyone it has arrested can be satisfied more accurately by DNA than by fingerprinting. And the swab of the cheek is, he said, little more invasive than a fingerprint.
If DNA sampling was actually like fingerprinting, this argument might be convincing. But of course it isn’t. Fingerprints are a phenotype that reveals nothing except a random pattern that no two individuals share. DNA, however, is your genotype: the blueprint for your entire physical person. If the government has my fingerprints, it’s like they have my randomly assigned Social Security number. If it has my DNA, it’s like they have the entire operating system.
That DNA is a full blueprint matters in two major ways: The first and most basic is that when the state possesses genetic information, it can — and in the future, almost certainly will — know vast amounts about the person whose genes are typed. The court said this wasn’t a worry because Maryland law prohibits the use of DNA information beyond identification. But in a world where every arrestee is sampled, how long will that legal principle last?