I’d like to hear from someone in the legal profession on this. It’s great to solve crimes but is it Constitutional? Is this a serious erosion of our rights?
@MikeBKY please check my work here…
I think the general rule is that you have to have probable cause to get a search warrant, and that warrant has to be specific. You can’t just go fishing. When a search warrant is issued for your house it has to be because there’s something specific to YOU or YOUR house that gives them probable cause to suspect information regarding a crime is present. AND they have to say what they’re searching for (a gun, a knife, specific stolen property, etc.) When they want to take your DNA, they have to get a search warrant to get YOUR DNA with a specific probable cause as to why they should be allow to take YOURS.
Despite what you see on Law and Order, you generally can’t just get a warrant for broad fishing expeditions (say, all 300 people who attended a social event). And it doesn’t get much broader than the 15 or more million DNA records, IMO.
This is exceedingly scary stuff.
Is it constitutional?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
@Zee you are correct. The Constitution requires the government to obtain a warrant which must be supported by probable cause that the persons or things to be seized are located at the place to be searched. Warrants are issued by a judicial officer, independent from the agency (usually executive branch) that is requesting the warrant.
Likewise, DNA is not private. We leave it on glasses at a restaurant, on door knobs, and anywhere else we may be as small amounts of skin, hair and saliva may come off of our bodies. And then, when we send a vial off spit to Ancestry.com, we add to the proliferation of our DNA. There is no legal privilege that would protect our DNA (nor that of our ancestors, siblings or descendants) from being obtained by law enforcement through a search warrant.
It is constitutional.
I had to take a break earlier but wanted to add a little more information. The information that is voluntarily added to data these databases are a treasure trove for law enforcement. Unless that data is privileged, and it NEVER is, it can be obtained by law enforcement with a warrant. This includes DNA databases, Google histories (search, location, …), IP address history, Cell phone location history, Cellphone data, Siri and Alexa history; you name it, if it is online or in writing, it is most likely subject to a warrant. Even your medical records can be obtained with a search warrant.
And, while a warrant needs probable cause, there are other methods to obtain the same information that do not require probable cause and can be used by others, not in law enforcement, if the information relates to some other court proceedings. For instance, if you are in the middle of a divorce, litigants can get access to most of the same information if “it is reasonably calculated to lead to the discovery of admissible evidence” by issuing a subpoena. Unlike probable cause, which requires probability, (51% likely), the discovery rules are much less stringent. And subpoenas, unlike warrants, are court orders but do not need a judge’s approval, although they can be challenged in court. These are generally issued by the Court Clerk’s Office and can be picked up pre-signed and the attorney fills in the details. In Kentucky, attorneys have been able to issue subpoenas without a clerk’s signature, as an officer of the court, for several years.
REMEMBER, EVERYTHING YOU SAY OR DO IS PROBABLY BEING RECORDED SOMEWHERE BY SOMEONE! And it is all discoverable.
That’s so unconstitutional that George Washington just turned over in his grave by us talking about this!
@Randall318 these are not unconstitutional. Subpoenas are a part of the Federal Rules of Civil Procedure and Criminal Procedure and presumably the Court Rules of every state in the Union. Discovery in both criminal and civil proceedings are essential in the administration of justice for both the plaintiffs and defendants. Unlike warrants, subpoenas require notice to the parties in the action and those whose information is being requested and are subject to review by the court through a motion to quash.
So if I’m following correctly, a warrant needs to be specific, so they cant just fish the whole DNA database hoping for a match. But a subpoena could be used to fish… but they would have to notify the DNA holders first? 23andMe, has as a part of their user agreement the right to opt in or out of sharing your dna info for specific reasons. I think that’s a contract. So if you’ve opted out if sharing, would they have to notify you before including your DNA as part of a response to a subpoena?
Sort of @Zee. The warrant must have specificity, but it does not need to specify an exact match. For instance, they could specify a match within specific parameters that would match the person and persons related to that person.
Subpoenas may lead to fishing expeditions, but courts frown upon it. They must seek documents or things that are reasonably calculated to lead to the discovery of admissible evidence. So if Z is the silver bullet, you can subpoena A-Y if they are meant to lead to Z. For instance, Subpoenaing Dash and Body cams may not show an event but they may have witnesses that can be identified who did see the event. Witnesses who, for one reason or another, were not included in an investigative report.
I did not read the report. that is my fault.