Posted by: JDM..... | June 13, 2013

Your grandchildrens’ DNA….

sold down the river by….

  • Samuel Alito

  • Stephen Breyer

  • Anthony Kennedy

  • John Roberts

  • Clarence Thomas

When the Supreme Court of the United States took on the question of DNA sampling earlier this year, I thought “Well now there’s a controversy worth chewing on!

They recently concluded that DNA sampling of a person under arrest for a “serious crime” does not constitute a violation of the Fourth Amendment, which bars unreasonable search and seizure, and that the practice merely amounts to a 21st century version of fingerprinting. For starters, a five-to-four decision isn’t exactly a landside, so I’m still chewing vigorously, even if the justices aren’t. Additionally, fingerprints and DNA codes share the single fact that they are both body features that can provide information, but beyond that it becomes an “apples and socket wrenches” comparison.

How are they different?

While each is a source of information, fingerprints have limits. This is important because it helps to restrict the information collected to the identity of the individual who created the print in the first place. A person’s DNA does that, and more. In fact, scientists are not yet sure what the limits of DNA analysis might be. It is obvious from what is known however that the data can do a great deal more than simply provide evidence of whether or not a given individual was at a specific location. DNA has been used to identify the sole known living descendant of a prehistoric man whose preserved remains were found in an English peat bog. There is no reason to believe the same data couldn’t eventually be used to predict a considerable amount of information about one’s descendants many generations in the future as well. DNA research is already looking into ways to manipulate life, death, and everything in between. This is one piece of information that nobody in this world should ever control or be in the possession of except the one individual to whom it applies. Period.

In a controlled and unbreachable environment, such as that which proponents of using DNA sampling as a standard tool of law enforcement suggest would be the case, the potential for abuse or misuse might be minimal, assuming certain criteria were met. Unfortunately, when such a scenario is used as a selling point, and where questions of individual rights are concerned, the primary criterion is “perfection”, and that is unrealistic. The “ideal” environment does not exist, nor is it likely to ever exist for more than occasional brief moments in time. Policies continually adapt to new circumstances, and the personnel responsible for creating, adapting, and carrying out those policies change as well.

Maintaining consistency under such conditions remains a challenge, and our form of government was originally structured to provide that very challenge as a safeguard. Creating policies and regulations that improve consistency must be approached with great caution, and the value of individual liberty must always be weighed against the presumed value of any government activity that has the potential to diminish that liberty, with liberty holding the priority position.

Thus, as scientists play around with the challenge of cloning a wooly mammoth just because it might be a fun thing to do, our Supreme Court has pooh-poohed concerns about DNA sampling and given police departments the go-ahead to swab away. It isn’t just about whether or not it is Constitutional to engage in such fishing expeditions to see if a few bad guys might be nabbed. It’s about The Supreme Court of the United States taking an unbelievably cavalier attitude towards an issue which may arguably constitute as great a threat to humanity as did the creation of nuclear weaponry. The Justices may know all of the big words for such things, but that doesn’t preclude the posing of absolutely valid questions by any citizen able to voice them.

The argument that one’s fingerprints are already obtained prior to conviction does not segue into justification for any other tool of identification being granted a free pass to do the same. Echoes of the old “if you aren’t guilty, you have nothing to fear” rationale, used on more than a few occasions down through the ages to do harm, ring very loudly.

Blackstone’s Formulation and the dangers of expediency

.One very primary and essential consideration has obviously been overlooked, or even discarded, by the five justices who approved the practice of DNA sampling. An English jurist of the mid eighteenth century named William Blackstone wrote in his Commentaries on the Laws of England, published in the 1760s, “It is better that ten guilty persons escape than that one innocent suffer“. That principle, known as Blackstone’s Formulation, has guided our western concept of justice ever since… least until June 3, 2013.

More than just the practice of building a general DNA data base in the currently understood context needs to be considered. Present day supporters claim with all sincerity that such sampling would only be done in the case of “serious crimes”, but there are no safeguards to prevent awarding that designation to behaviors that might be objectionable under the unforeseen politics of any given time in the future. For example, as an outgrowth of efforts to eliminate laws and practices that denied full citizenship and Constitutional rights to Americans descended from African slaves, the “PC” culture evolved, eventually giving rise to the classification of certain actions as “hate crimes”. While many support such ideas, many others, including myself, question how a man beating the tar out of another man is any more or less traumatic or hateful depending on criteria such as “race”, which has been largely disavowed by anthropologists and geneticists, and other factors like ethnic origins, religion, gender, gender preference, etcetera. A light skinned person harming a light skinned person is not hateful, while the same person committing the same acts against a dark skinned person is? Surely, our nation and society, along with the rest of the world’s nations and societies, will continue to grow and change as long as we continue to exist, and there will arise many circumstances when it will be tempting to chip away at the components of liberty out of a temporary desire for expediency. The McCarthy era paranoia of the mid twentieth century demonstrates the danger of “expedient” redefinition of what may be considered threatening to our “national security”, and the Watergate scandal of the Nixon administration shows that even the highest office in the land is not immune to corruption and bad judgment

Growing list of involuntary data bases

The establishment of any kind of involuntary database of personal information is cause for concern, and we already have several. We have centralized collections of information assembled and maintained by the Bureau of Census, the Internal Revenue Service, the Social Security Administration, and more, and those are just the ones we know about. Protecting selected knowledge data bases such as sensitive military, business, and technical information is understandable and a matter of common sense, but personal information is another story. Complicating the numerous databases developed to further the interests of numerous government departments and agencies, statutes and procedures have broadened in recent years to facilitate the exchange of such information among the various offices.

In the case of the Social Security Administration data base for example, both its scope and purpose have expanded far beyond its original focus just in my lifetime. I did not have a Social Security number until I was fourteen, and the only reason I was assigned one at that time was because I had entered the workforce as a part time stock boy and window washer at a local Five and Dime store. I earned one dollar per hour, and my first little brown pay envelope contained eight one dollar bills and some change. I remember that day! I walked across the parking lot of the shopping center to the bank and opened my first savings account. I had to give them my name, address, phone number, and my deposit money, of course. In return, I got a little folded piece of Manila paper showing my name, account number, account balance, and so forth.

There have been a lot of changes since then. In the early sixties, the IRS began using the SSN as an identification number, and when I joined the US Naval Reserves, I was assigned a service number. When I received a commission a few years later, my Social Security Number went on my “dog tags” instead. In 1970, the IRS mandated that all financial institutions start obtaining the SSN of all customers.

Strangely enough, although the Social Security Administration in 1971 proposed taking a “cautious and conservative” position and not encourage the use of the SSN as a general identifier, they also recommended using it to identify school children, as well as for certain health, education, and welfare purposes. Today, there are few if any purposes for which the government doesn’t require or authorize the use of the Social Security Number. The huge credit industry has largely moved to factoring consumer debt through giant financial institutions, providing rationalization for the use of the once sacred SSN in the private sector as well. And, that’s just one database created, mandated, and then mongrelized by the federal government.

I therefore have little reason to trust that any other personal information databases under government control would retain the original restrictions and applications for which they were created, either should various centers of authority decided it would be in their interest to change the rules at some point. I certainly question with extreme vigor the SCOTUS approval of creating DNA databases, especially without any irrevocable, dedicated checks and balances.

I find it odd that government can justify confiscation and retention of DNA, which essentially constitutes the complete blue print and Owner’s Manual for an individual, though not yet convicted of a crime, at the same time that they are releasing the hounds with extreme prejudice against the guy who ratted on them for spying on all domestic phone and internet communications. Actually, I find it more than “odd”. I find it somewhat alarming. I’m not necessarily in favor of any carte blanche collection of DNA samples from those convicted of crimes either. The definition of what constitutes a “crime” is far too vulnerable to political missteps or excesses to be used as a stand-alone ticket to proceed.

Such practices as the homogenization and dilution of the Social Security system, coinciding with the wholesale dismantling of traditional “boundaries” within the private sector that society is experiencing as the digital revolution barges headlong through the building blocks of tomorrow’s history, increases the potential for misuse dramatically. With the possible exception of the senior generation, most have been lulled into a naive level of trust and a false sense of security, eagerly and openly gobbling up each new electronic tool or toy as soon as it hits the market. The current controversies concerning the allegedly intrusive behaviors of social media such as Google and Facebook are but the tip of the iceberg, an objectionable circumstance even without considering the government’s self-autographed permission slip granting itself the authority and right to dive into their data bases. This isn’t the first time in history that designating virtually any situation a matter of “National Security” has become a universal and unquestionable door opener to anywhere the Ghost of Tyranny Future might like to dabble.

Pogo may have been right

Unless the Supreme Court reverses itself, which isn’t likely, or unprecedented citizen initiatives bordering on Revolution change the direction in which we are headed, this experiment in a “government of the people, by the people, and for the people” may saddle our children and grandchildren with a social and political environment that would be quite unrecognizable to the six or seven generations preceding them.

There is no single answer, of course, but the power does still reside in the people, the only caveat being we have to choose to express it. One particularly effective expression of that power has always been the word “NO”.

For nearly forty years, I have found little ways to say “no” and to remind myself to think before simply handing over pieces of me just because somebody with a nametag instructs, or asks, me to do so. This doesn’t mean just adopting an oppositional persona, as that would likely be counterproductive. It means thinking things through.

Who is asking for the information, why do they say they need it or want it, do I want to provide it, and do I agree that it is a reasonable request? The 2010 Census was the first survey since 1970 to which I have responded, and even then I was selective in my choices of which questions to answer. To the best of my recollection, I have never answered questions that I believe contradict my values or my beliefs regarding the proper roles and limits of government. The explanation that certain information is needed to help the federal government provide needed services is more of a red flag to me than a motivation to hand over the requested information. These days, the term “needed services” is just as likely to suggest job security for the million or so people on government payrolls. I always decline to answer questions about race, ethnicity, education, employment, or income. That option is now offered in many places, but when it is not, I either ignore the questions or cross them out.

The challenge when “bucking the tide”, of course, is being willing to stick to one’s principles in the face of consequences. So far, I have usually been willing to take that risk. A couple of years ago, while working on the family budget, I attempted to access a credit card account on line for up to date information. I was denied the opportunity to set up on line access unless I was willing to provide my Social Security Number. I was not, so I called the company in question only to discover that they wouldn’t even discuss my account with me unless I provided a Social Security Number. While I appreciate the fact that the organization was concerned about protecting my personal financial information, I explained that my Social Security Number is for interactions with the federal government only and that didn’t wish to provide it to a private company. The person to whom I spoke was surprisingly flip when she agreed that I wasn’t required to give them my Social Security Number but that, similarly, they were not required to provide me with the service I was requesting. Needless to say, that credit card went to the top of the list for replacement. To date, that has been the only company to respond in such a manner.

This is not to say I haven’t compromised. One has to choose one’s battles unless one wants to simply drop out and live in a cave or in the woods. I tried that gig back in the seventies, anyway. It was fun and a bit of an adventure, and I have always enjoyed the out of doors, but that was not the way I wanted to live for the rest of my life. I happen to like certain modern conveniences. Being employed, driving a vehicle, owning property, and a number of other everyday pursuit-of-happiness activities require a certain amount of “cooperation”.

a few final thoughts…

The Supreme Court of the United States was dead wrong on this one. It will be up to the people to change it and correct the course we are on. It will take level heads and some voice other than the traditional two parties, who are now so polarized and ineffective, lest we just continue to bounce back and forth between the extremes creating additional problems instead of solutions.

It is a short leap from collecting DNA from untried suspects to collecting DNA from kids when they enter school, from adults in order to own property, to travel, or even, like the Social Security Number, for the DNA profile to become a universal national ID. The justices of the SOCUS erred on the DNA issue, but they didn’t consider the companion question of whether or not a person has the right to say “no”. They needn’t bother. I’ve already ruled. I have that right. Period. Everyone else has that right as well, but only if they take it.


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  1. My hackles were raised when I read, beginning last fall and again just recently, about the growing number of grade school children having DNA swabs taken. Children under the age of 18 caught by the police for minor infractions are having DNA swabs taken ( Just last year a high school sending home permission slips for parents to give consent for DNA samples be taken from their children for a supposed health study. ( If permission slips were NOT returned then it would be taken as an indication of consent. It sounded as if the note sent home with the consent forms was a mere formality and that the tests would be taken, regardless.

    The taking of a DNA swab from a criminal in a major crime case; ie, murder, rape, hate crimes, terrorism, etc. But there is no reason to take the DNA of children. There is no way to guarantee that these samples will be kept secret or not be used for things like medical profiling for the possibility of future medical problems in any given subject for the purpose of God only knows what.

    I am also against DNA being taken in the name of “safety”. In the 70’s, when my children were born there was a move to have the children fingerprinted and the parents were to keep the issued identification card with their child’s fingerprints, identification and picture, in the unthinkable event that the child came up missing. If I remember correctly, this was prompted by the abduction of and subsequent murder of 6 year old Adam Walsh. But, if allowed to take DNA samples of children in the name of safety what’s next? Tracking implants? Tattooing, like prisoners of war received? Where do we draw the line? As you pointed out, this goes against the Fourth Amendment. But , sadly, it seems as if our beloved Constitution is just so much scratch paper these days.

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