This case note analyzes the 2007 Ninth Circuit case United States v. Kriesel in depth and comments on the larger policy implications of using DNA databases.
EXCERPT: “We want to make certain that every American can bank on the infallibility of the system, and to ensure that what keeps us safe will also keep us free.” This was how the fictional government in the film Minority Report justified surveillance technology used to capture criminals even before they committed their crimes. While courts do not “base decisions on dramatic Hollywood fantasies,” this statement nonetheless underscores the anxiety many Americans feel about trading personal freedoms for greater police protection.
All fiction aside, this liberty-for-security compromise is particularly salient when it comes to DNA identification. In 2000, Congress enacted legislation to encourage the nationwide development and implementation of advanced DNA analysis and database technology, spurred on by the considerable crime-solving promise that such tools hold. Since then, several recent cases have expressed enthusiastic judicial support, declaring that the compulsory collection of DNA from all probationers and felons is constitutional.
Yet is it true in this case that what keeps us safe also keeps us free? This note examines the legal discussion on compulsory DNA extraction from criminals and how judicial tests direct attention away from the potentially harmful consequences of unregulated DNA profile use. In order to avoid the bleak Orwellian predictions of database critics, policymakers should recalibrate the scales of the “totality of circumstances” balance, examine why database limits are needed, and explore what limits are feasible under the standing legal scheme.
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