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Gary T. Marx

Los Angeles Times, Sept. 15, 1989

Move over Buck Rogers, Dick Tracy and Mr. Spock. Space-age technology has come to the criminal justice system. Recent developments in forensic molecular biology have brought us DNA "fingerprinting," a technique that its advocates claim offers certainty in the matching of genetic material found at a crime scene with that taken from a suspect. More than half the states are exploring plans to create computerized genetic databases, and the FBI is seeking to build a national computerized DNA index, for which those convicted of serious crimes will be required to provide blood and saliva samples.

This week in California's first DNA conviction, a Ventura County woman was found guilty of murder in a case that rested largely on 15 hairs found at the scene of the crime that matched her DNA patterns. "Without the DNA test results," said the judge in the case, "there's not enough evidence."

In this euphoria of quick techno-fixes, it is possible to overlook short- and long-range problems. There are questions about the validity of DNA testing and about the standards that should be required for court use. An accurate match is no guarantee of legal guilt, and the tactic raises Fourth Amendment search and property ownership questions. Under what conditions should a DNA sample have to be provided, and who should control the findings?

But there is another problem --the danger of "surveillance creep," in which an invasive technology, benignly introduced for limited purposes, silently extends beyond those borders. Examples are everywhere: the Social Security number that Congress intended only for tax purposes has become a de facto national ID number; video cameras, once restricted to prisons and high-security areas, are found in offices and shopping malls; the polygraph, once limited to national-security violations, is now routinely applied to government employees and contractors; drug testing, once restricted to those working in nuclear-power facilities, is now required of bank tellers and even junior high students; a congressional restriction on matching computer databases only for purposes consistent with the original data collection has given way to widespread matching of databases for any reason government chooses; the FBI's records of criminal histories, created as a crime-fighting tool, are now most frequently used to investigate job applicants, not crime.

Once a surveillance system is established, many factor extend it to new subjects, and new uses. Economies of scale are created that reduce the per-unit cost of such extensions. Precedent is established; what was once seen as a shocking intrusion comes to be seen as business as usual. Interest groups lobby for expansion. The surveillance appetite becomes insatiable, both as a bureaucratic end in itself and as an insurance policy.

To be sure, sometimes the camel's nose is pushed back from under the tent. Thus, following Watergate and revelations about the FBI's COINTEL program, policies were changed and the number of domestic national-security investigations dropped from thousands to fewer than 50 a year. Director William S. Sessions recently rejected a proposal to expand the FBI's automated criminal records system to include information on persons who were under suspicion but had not actually been charged with anything. But such cases of restraint are the exception.

In the case of mandatory DNA fingerprinting, one can imagine its creeping from violent to nonviolent criminals, then to anyone having contact with the criminal justice system, and finally to everyone. In the latter case, this might initially be voluntary and only for purposes of identification, as protection for missing children and for amnesia or Altzheimer's victims. Success with that could lead to a numerically expressed national DNA standard for all Americans, which could find its way onto all the documents that make up our "data image" in distant computers.

New uses also may appear. There is no reason why the technique has to be restricted to the limited number of DNA strands used for identification. Information on one's complete genetic makeup will be available. This could lead to coercive therapy in the name of prevention, the denial of certain types of employment, insurance or even the right to have children by those whose genetic makeup indicates they may be prone to particular illnesses or forms of anti-social behavior. With that could come a permanently stigmatized genetic underclass, with enormous moral and social costs.

Some years ago, research on recombinant DNA was suspended until appropriate laboratory guidelines could be developed. It might now be appropriate to have a social moratorium on the use of DNA databases for public-policy purposes while the legal, ethical, social and psychological questions are considered. With respect to this technology, we are now in the twilight zone that Justice William O. Douglas wrote about in noting that the protection of liberty is not self-executing: "As night-fall does not come at once, neither does oppression....It is in such twilight that we all must be most aware of change in the air --however slight--lest we become unwitting victims of the darkness."
 
 

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