Home > Journals > LAWREVIEW > Vol. 93 > No. 3 (2020)
DNA Is Different: An Exploration of the Current Inadequacies of Genetic Privacy Protection in Recreational DNA Databases
Part I of this Note discusses the fundamental science behind DNA and defines and explains the process of familial DNA searching. Part I also discusses how Carpenter v. United States provides a framework to begin thinking about the unique nature of DNA and privacy implications for its use, and why the revealing nature of this type of data warrants protection. Part II of this Note delves into the lack of constitutional and statutory protections for DNA in recreational DNA databases. First, Part II explains that traditional Fourth Amendment concepts, like search warrants, probable cause, reasonable expectation of privacy, third-party doctrine, and consent, do not adequately protect or map onto DNA stored in recreational databases. Next, Part II highlights the complete absence of statutory protections for the forensic use of DNA in this particular context. Part III assesses the strength of common arguments intended to minimize the necessity of statutory protection and concludes that they are not persuasive. Such arguments include the strong government interest in being able to use familial searching to solve and prevent crimes, the anonymization of DNA samples to resolve privacy concerns, and the work-intensive nature of familial searching in these databases tending to decrease the likelihood that the technique would be used frequently. Finally, Part IV asserts that statutory protection is the appropriate solution and that it is imperative to protect the genetic information of individuals stored in recreational DNA databases against invasive use by government actors. Part IV also provides an overview of possible regulations.