A contentious legal contest is shaping up in the Sunshine State to try and halt the DNA testing of anyone arrested – however not yet convicted – of a felony. The challenge to California’s state law comes on the heels of a recent Supreme Court ruling allowing a similar law in Maryland to continue. In the 5-4 ruling by the high court, the constitutionality of Maryland’s law to collect DNA samples from those arrested for a felony investigation as part of their routine booking process, was narrowly upheld. While the Maryland law is different in that it only targets those being arrested for felonies, it created a baseline for which many states are moving to vastly expand DNA testing for law enforcement use in the wake of the ruling.

California law expands of Supreme Court ruling

Civil liberty advocates including the ACLU (American Civil Liberties Union) are up in arms in California over the proposed law. The California law is a much broader threat to the rights of citizens according to advocates for its suspension, because the law allows for DNA collection from anyone arrested for any reason whether felony or a simple misdemeanor. Sample collection is carried out using oral swabs, in a method that is quick and painfree > get additional information. Advocates say the collection and retention of the most personal and basic human genetic material is a clear violation of constitutional protections American’s have against unusual search and seizure.

A clear distinction from the Maryland law and the subsequent vindication by the US Supreme Court, is that it can only be used in serious felonies and only after review by a judge who finds probably cause in the case.

9th Circuit court to decide

Prior to the ruling by the Supreme Court this year, most privacy experts in California though the circuit court seemed poised to invalidate the Californian law. In court proceedings there has been concerns expressed about the handling of DNA once collected from an individual, who in the end may likely never be charged or convicted in a court of law. However the ruling in the Maryland case has breathed new life into the case making it that much more difficult for the court to overturn California lawmakers.

California Attorney General Kamala Harris, an outspoken proponent of the law, says the differences between California and Maryland laws on DNA collection “are not constitutionally significant” and has advised the 9th circuit court to uphold the law. In another twist to the case, the Obama administration has even weighed in, backing up the California law by stressing the national importance of the combined 28 states which have similar laws on the books.

An important tool for law enforcement

There is one aspect of these privacy protection from DNA collection cases that both sides tend to agree on: the use of DNA testing for law enforcement is an invaluable tool in solving cases. Privacy aspects do not contend that there is no science backing the use of this testing to solve literally thousands of US cases each year. The issue they say is that in addition to violating constitutional protection rights when the genetic material is extracted, there is no clear answer on what happens next. In cases where the suspect has been sampled but never convicted of a crime, what becomes of their personal genetic information? Who stores it and who has access to it? The implications are troubling for many and the California law does not sufficiently address these critical privacy questions.