The Golden State Killer and Privacy in the Age of DNA

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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22 Responses

  1. Avatar Kolohe
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    says:

    “GEDmatch makes this very clear in their user agreements. Law enforcement used the service as it was intended, except to find someone else’s family rather than their own.”

    There’s the loophole right there. I’m sure the expectation from almost all the users is that people are submitting *their own* individual DNA to these sites, setting up a profile with personally identifiable information that’s their own to give – not someone else’s.

    eta:

    If you are visiting a friend, and the police barge into your friend’s home without a warrant, find a bunch of drugs in the home and decide to arrest you, you have no right to challenge the warrantless entry.

    this is something I was not aware of, and seems Not Right. (that is, morally suspect, not that you are factually incorrect)

    eta2: ‘plain view’ is also that needs some reconsideration given advances in technology and the changing nature of interactions in ‘public spaces’, both real and virtual.Report

  2. Avatar Atomic Geography
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    says:

    Well done and reasoned post. Thanks.

    A few years ago I wrote a post about 2 of post-conceptual artist Heather Dewey-Hagborg’s projects concerning DNA. In the first, she made masks of people whose DNA she found in public places.

    In the second, she developed 2 sprays, that when used together, either eliminated, or rendered unreadable trace DNA. While she considered these products part of an art project, rather than something offered commercially, it poses the possibility of products making one invisible on the DNA level, even if it seems impractical now.Report

  3. Avatar Em Carpenter
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    says:

    Kolohe: “GEDmatch makes this very clear in their user agreements. Law enforcement used the service as it was intended, except to find someone else’s family rather than their own.”

    There’s the loophole right there.I’m sure the expectation from almost all the users is that people are submitting *their own* individual DNA to these sites, setting up a profile with personally identifiable information that’s their own to give – not someone else’s.

    eta:

    this is something I was not aware of, and seems Not Right. (that is, morally suspect, not that you are factually incorrect)

    Re: that loophole: even then, any privacy violation claim inures to the benefit of the family members who submitted their DNA, not to the suspect.

    As to the other issue re: warrantless searches, all 4th amendment analyses come back to expectation of privacy, and the right to be secure in YOUR person and possessions,both of which are abated when you’re in someone else’s home. That’s the way the court has decided, anyway.
    Now, as I said, the analysis can be different depending on the extent of your visit. Overnight guests, for instance, have a greater expectation of privacy than someone who pops over for dinner.Report

    • Avatar Marchmaine in reply to Em Carpenter
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      says:

      “Overnight guests, for instance, have a greater expectation of privacy than someone who pops over for dinner.”

      Really? This seems counter-intuitive… I would think my expectation of privacy is rather more portable when I’m “popping over” somewhere vs. extended stays.

      And thus an overnight guest would have more privacy expectations than, say, a month long boarder?Report

      • Avatar Em Carpenter in reply to Marchmaine
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        says:

        I can see that perspective. And you may have less expectation of privacy from the folks whose house you are in. But I think the rationale is that it’s more like your temporary “home” at that point, giving you more expectation to be free from outside intrusion.Report

    • Avatar Maribou in reply to Em Carpenter
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      says:

      @em-carpenter Why are they abated when you’re in someone else’s home? I mean, I get that they are, the mechanics or whatever, but if my backpack (for instance) is in someone else’s home, why is it less private than in my house or (I think?) in my car or on my person as I walk down the street? It’s still clearly in my possession, “contained” within the larger house… I mean, it’s not that I would expect the cops to have to tell the difference, but if you said, “hey, that’s my bag, you can’t touch it,” why wouldn’t that have some standing? i mean, i can see that you would then have to prove it was your bag.. but i can also see ways that could be done….

      What is it about owning/renting a house (or staying in one longer-term) that’s special?

      (I realize this is an elementary question but I was raised with a different privacy basis and it still baffles me.)Report

      • Avatar Em Carpenter in reply to Maribou
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        says:

        Your backpack, your purse, or your own person is different. Those would require consent or probable cause and you would absolutely have standing to object to a warrantless search.
        In my hypothetical it was the search of the home itself to which you may not raise a valid legal objection. So, for instance, say a pile of cocaine is on your friend’s coffee table when the cops bust in, and you are all arrested. You can’t successfully argue that your 4th amendment rights were violated. I your purse is grabbed and searched against your wishes, you can object to that (generally, without getting into the weeds on searches for officer safety or “incident to arrest”.)

        Does this make more sense?

        If you own or rent or even just live in a place, it is your home under the law, your possession in which you have the right to be secure under the fourth amendment.Report

        • Avatar Maribou in reply to Em Carpenter
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          says:

          @em-carpenter Yes, it does. Thank you for explaining.Report

        • Avatar Kazzy in reply to Em Carpenter
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          says:

          Doesn’t this present a weird catch-22?

          “You don’t live here so you have no expectation of privacy. BUT you are here and drugs are here so you are legally responsible for their presence here.”

          Huh?Report

          • Avatar Em Carpenter in reply to Kazzy
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            says:

            Welcome to the world of criminal law.Report

          • Avatar DavidTC in reply to Kazzy
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            says:

            “You don’t live here so you have no expectation of privacy. BUT you are here and drugs are here so you are legally responsible for their presence here.”

            ‘Possession’ isn’t whether or not you’re holding something, it’s whether or not you have any ‘control’ of it.

            If you put _your_ cocaine out on someone else’s table, and everyone agrees that it is still your cocaine, you are still in possession of cocaine. If you give a third party permission to do a line, and they use a razor to arrange a line on the table to do, now they are in possession of that specific line, and you are in possession of the rest, even though it’s all just cocaine laying on the same table.

            That doesn’t mean you can just be arrested for being near cocaine on a table in someone else’s house. Even if you know it’s there and it’s cocaine. As long as you do not, in any manner, control it.

            This even applies, in theory, to cocaine on a table in your own home, although good luck asserting you don’t have any control over something in your own home. About the only way that works is if you can argue you literally were unaware of it…or I guess if they were going to sell it to you. (Because the fact they were going to exchange the cocaine for money rather implies you couldn’t have done anything with the cocaine _before_ giving them money.)Report

  4. Avatar Jaybird
    Ignored
    says:

    California v. Greenwood found, 6-2, that there is no reasonable expectation for privacy for the stuff you throw out.

    You’re sloughing off skin cells and hairs and god only knows what else right now. When’s the last time you sneezed?Report

    • Avatar Em Carpenter in reply to Jaybird
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      says:

      I don’t think anyone would argue there’s an expectation of privacy to the DNA the killer left behind. Not seriously, anyway.Report

      • Avatar Kolohe in reply to Em Carpenter
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        says:

        It’s not the crime scene evidence; it what can be used for sources of information to match that evidence.

        For instance, the way I see it (ianal) it would be perfectly legitimate under current rules to build a DNA snarfing Roomba, let it loose in a public place, then compare everything you’ve hoovered up with your existing crime scene database. Then use, say, traffic cameras to further figure out who you collected on if anything is flagged.

        Heck just set up a camera in a public place, have it motion activated, then scoop up whatever is sloughed off (say on a handrail) as soon as someone passes, and synchronize this data automatically so you have a visual ID to go along with the physical trace.Report

  5. Avatar DavidTC
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    says:

    I don’t understand any of the ‘search’ analogies being thrown around here at all. As far as I can tell, no one searched anything.

    I don’t just mean ‘The police asked a third party for private information’, which is indeed some sort of dubious and privacy-implicating situation that maybe we should be worried about.

    The police appear to have asked a third party for _public_ information. The entire point of people submitting this genetic information is to _be publicly matched_ to other people, right?

    This wasn’t ‘We give the police permission to search our own space’, and their space coincided with the killer’s….this was ‘We have publicly documented something about us’, and that documentation also happened to show the killer.

    This is akin to a library having people donate photo albums for public perusal, and the police looking through them and finding, in the background of one of them, an image of the killer killing someone.

    On top of that…the idea that you own your own DNA information is inherently weird anyway. I understand why we have decided to force the framework of ‘owning’ information about you, to stop abuse by various companies, but putting DNA under that exposes what a weird paradigm that is…not only do you not have anything to do with the composition, and it does DNA not contain anything unique to you (Just the combination), but it is almost trivial to get.

    This is what happens when we just keep extending the paradigm of ‘property’ from the real to the intellectual to…at this point it’s basically just informational. At some point, we need to come up with some other way to talking about ‘owning’ stuff that doesn’t really exist.Report

    • Avatar Em Carpenter in reply to DavidTC
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      says:

      What constitutes a “search” is an issue that is fought about in court quite a bit and the results are not always what one would expect. For instance, a drug-sniffing dog being walked around your vehicle has been deemed NOT a search.

      Interesting thought about not owning your own DNA. I’ll have to ponder that. What about your blood or your saliva? You can’t force anyone to turn those over without a warrant or court order or consent (though it can be collected when discarded). Doing so would be an illegal “search”.Report

      • Avatar DavidTC in reply to Em Carpenter
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        says:

        Interesting thought about not owning your own DNA. I’ll have to ponder that. What about your blood or your saliva? You can’t force anyone to turn those over without a warrant or court order or consent (though it can be collected when discarded). Doing so would be an illegal “search”.

        I wasn’t really saying we don’t ‘own’ our DNA as the law is currently, I honestly have no idea…I’m saying that property rights are a pretty poor framework to deal with things that are fundamentally privacy rights. I mean, they’re already somewhat over-extended dealing with intellectual property, but at least that is, in theory, something people creatively invented.

        DNA, and, heck, all the personally identifying stuff like fingerprints and social security numbers and stuff like that, are not things the ‘owner’ invented. And they are fairly easy to get a hold of.

        The entire idea of ‘property’ in the law is that we control it, that we can deny other people usage of it…but how do we control our DNA? We leave it laying around everywhere.

        Technology keeps making it easier and easier to track people, and we sorta keep doing silly things to make it slightly more difficult. If we actually don’t want corporations or governments keeping track of things, we need to literally just _ban_ them from keeping track of those things, and not keep jumping from fingerprints to DNA to GPS phone tracking to facial recognization to tracking our computerized car to whatever is going to happen in the future.

        Let’s figure out what personal information we are okay with having giant systemized databases of without our permission, and draw a line in the law.Report

        • Avatar Em Carpenter in reply to DavidTC
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          says:

          I’m not sure if you are referring to my article here as using a property rights framework, -and I didn’t really intend it as a property analysis It was about privacy. But in search and seizure law (which this definitely is), the concepts intertwine.
          The fourth amendment guarantees the right to be secure in our “persons, houses, papers, and effects”, broadly construed to include your car, your blood, your electronic data, email, etc. When we are talking about suppressing evidence in a criminal trial due to a 4A violation, standing is important. If it’s not yours, no expectation of privacy and no standing. If no expectation of privacy, no 4A violation.
          I think it will be an easy call for a judge here as to the matching of DNA on the website, under either a privacy or property framework .Report

    • Avatar Road Scholar in reply to DavidTC
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      says:

      I’m reminded of the NSA meta-data phone records kerfuffle. Everyone was running around all freaked out about the NSA collecting “their” data. I understand and agree with the concerns about privacy and fishing expeditions and such but it struck me as wrong to call the records of your phone calls “your” data. The phone companies collected that data from the actions of their equipment in response to actions (dialing a number) initiated by the customers. It’s a record of stuff about you and stuff you did, but that doesn’t mean that it’s your data.

      When the school photographer takes a picture of your kid that’s data about your kid, specifically an image of her face, but neither you nor your child own that image. That’s the copyrighted property of the photographer. On the other hand, the photographer can’t use that image for purposes beyond just selling you copies of it without your permission. So, yeah, it’s complicated. And I agree with @davidtc that property rights is a clumsy framework for analysis here.Report

  6. Avatar CJColucci
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    says:

    What would be the objection to fingerprinting and DNA sampling everyone at birth and creating a database ? Would I like it? No. Would it violate my rights? Nots o sure.Report

    • Avatar Em Carpenter in reply to CJColucci
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      says:

      As of now, doing so would require voluntary consent or court order. There are laws allowing fingerprints and DNA taken after arrest or convictions but I think a blanket policy of collecting that from everyone at birth would not meet a standard of compelling state interest sufficient to intrude on privacy. At least I hope not.Report

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