DNA technology has become so refined that, according to the New York Times, scientists can now conjure your identity and wanderings out of thin air.
In their quest to monitor animal species in nature, wildlife researchers have accidentally stumbled upon the ability to decode a person’s DNA found floating in the air, or lingering in water, snow, or practically anywhere you’ve been. The technology is so precise that scientists could recover medical and ancestry information from minute fragments you left behind while sitting in a park. The wind really does cry Mary, and all her relatives too.
This discovery is another technological accelerant of comprehensive surveillance. Authoritarian states could use this technology to locate downstream traces of repressed ethnic minorities, like Uighurs in China. Healthcare and biotech firms could trace genetic diseases to specific individuals and preemptively deny healthcare coverage or advertise treatments before that person would even know they have a vulnerability. Police could end up using this untested technology to mistakenly convict someone with DNA evidence, for which there are few legal protections, and from which there are minimal legal remedies.
Erin Murphy, a professor at New York University School of Law who specializes in the use of new technologies in the criminal legal system, is worried about the surveillance potential of this technology. She told The Times that the state of privacy protections is “a total wild west, a free for all… The understanding is police can sort of do whatever they want unless it’s explicitly prohibited.”
The history of forensic data use by authorities does not instill comfort. According to another NYT article, more than 150 men and women in America were exonerated in 2018 – just one year – because forensic experts exaggerated statistical claims to bolster unscientific assertions. While DNA matching is very reliable, it is not clear that trace amounts taken from the environment would equal that high degree of certainty. Despite the uncertainty about these technologies, “courts are still reluctant not to allow it or to overturn a case” because of the long precedent of their use, said Aliza Kaplan, a professor at Lewis & Clark Law School.
The problem is that, since the early 2000s, courts have held that a warrant is unnecessary for DNA that is not still attached to a person. As a result, the Fourth Amendment’s prohibition of “unreasonable search and seizure” without probable cause flies out the window the moment your DNA leaves your body. But given that DNA technology can now be used to sequence a person’s entire genome instantly and provide nuanced biological information, DNA can share a library full of your private information with third parties.
This is just another example of the widening capability of the surveillance state, from facial recognition, to our digital traces being purchased, to now actual traces of us in the environment. It is clear that privacy law has not kept pace with the rapid scientific developments of the last few decades, to the detriment of Americans. Congress must take steps to improve privacy of Americans’ data, including that taken from our very selves.
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