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Friday, May. 17, 2002

Vik: Akhil, two months ago, you and I agreed in our Findlaw column that a high school in Pottawatomie County, Oklahoma could not constitutionally require each student seeking to participate in extracurriculars to undergo a urine drug test. But last week you authored an op-ed in the New York Timesproposing that every American should be required to undergo a DNA test, with the results to be stored in a national DNA database. What gives?

Akhil: Some Findlaw readers may well think my two positions are inconsistent. But I see key differences between these two testing regimes.

Vik: I'm listening.

Democracy and the Fourth Amendment:
The Significance of Public Opinion in Interpreting a Right of the People

Indeed, the Pottawatomie policy is highly unusual and runs counter to the general sense of Americans across the country. The record reveals only "a handful" of the 15,000 school boards across the country - and no public colleges or junior colleges - with similarly draconian drug testing procedures.

Similarly, in our November Findlaw column criticizing Attorney General Ashcroft's intrusive attorney-client eavesdropping regulation, we emphasized that this post-September 11 regulation lacked solid democratic footing. Because it was issued unilaterally by the executive without congressional consultation or blessing, we found it troubling on Fourth Amendment grounds.

By contrast, the national DNA regime that I proposed would need to be approved by Congress. Realistically, the proposal could be adopted only if, after an extended and highly visible national debate over the its promise, perils, and privacy protections, most Americans supported it. As I wrote in the Times: "The first step in the creation of a truly comprehensive database would be convincing the public of its value . . . Would Americans ever agree to such a program? Only if they understood [its] benefits to society."

Vik: Of course, Congress has yet to pass or even consider such a plan, and right now I doubt there is a broad public consensus behind it. You seem to be counting your chickens before they've hatched.

Akhil: I'm just saying that if ever such a plan were to pass Congress, the Supreme Court should give more deference to Congress and the underlying national debate than the Court owes the isolated and anomalous decision of the Pottawatomie County school board.

Vik: But the Supreme Court is not, and should not be, the only place for serious constitutional conversation. So in this national debate you are imagining - and before anyone knows what the outcome of the debate will be - why should the American people and Congress support this DNA proposal despite the predictable constitutional objections that will be raised against it?

Equality and the Fourth Amendment

Akhil: For starters, they should note that the DNA proposal vindicates rather than threatens egalitarian values.

The key Fourth Amendment concept of reasonableness should be understood in light of overarching constitutional values. Equality - as embodied in the Fourteenth Amendment and other provisions - is one such value; and our earlier column found the Pottawatomie County policy troubling on equality grounds.

But the DNA proposal I have floated would treat all Americans alike. Everyone would be part of the national database.

In fact, this proposal would be an egalitarian improvement over the status quo, in which government officials have considerable discretion to pick and choose who will be tested and who won't. In some jurisdictions today, government can take a blood sample or inner-cheek swab from any suspect or arrestee, and then do a DNA test on the material. Given that suspects may be disproportionately poor or nonwhite, this current regime raises serious issues of equality, somewhat akin to the problems of racial profiling.

Privacy, Security, and the Fourth Amendment

Vik: But even if your proposal solves certain equality problems, doesn't it worsen privacy problems? After all, privacy is also an important component of constitutional reasonableness.

Akhil: I have tried to craft my proposal with sensitivity to privacy concerns. For example, the government would acquire biological samples quite unintrusively. At birth, each newborn is already given a blood test for medical purposes. I propose that a few extra drops be drawn and sent to the DNA lab.

Meanwhile, adults could undergo a quick swab of the inner cheek when applying for their drivers' licenses, for example. None of this need be any more intrusive than a standard airport experience.

Vik: I think I know where you're headed with the airport analogy. In our column on drug testing, we pointed to metal detectors at airports as quintessential examples of reasonable searches and seizures, even though these airport encounters lack individualized suspicion. Such metal detectors are nondiscriminatory, relatively unintrusive, well justified, and broadly accepted by the public.

Akhil: By contrast, the drug test policy used in Pottawatomie County is highly offensive to privacy values. It involves compelled urination with a monitor close by. On this score, at least, my proposed cheek swab is far less intrusive.

Vik: Of course, the biggest privacy problem with the DNA proposal is not how the samples are obtained, but how they are used afterwards. Once the government can perform a DNA test on these samples, it can learn a great deal of private information about a person, such as his medical predispositions, or his biological paternity. It's easy to imagine how a government might misuse information like this.

Vik: But fingerprints cannot be used to trace family lineage or paternity. So even junk DNA is more dangerous than ordinary fingerprinting.

Akhil: True, but I further propose that government should not be allowed access to the DNA database without the approval of a special DNA court, which should allow specific use of the database only for compelling reasons - to solve a serious crime, or clear an innocent person.

And here we come to another huge difference between DNA testing and drug testing. A comprehensive database that could be cross-checked against DNA found at crime scenes could revolutionize America's ability to find persons who have committed serious crimes of violence (like rape and murder); to prevent various forms of identity fraud (from financial scams to terrorist plots); and also to clear innocent persons wrongly convicted. To borrow from the language of the Fourth Amendment, a DNA database with strong privacy safeguards could actually make Americans more "secure in their persons, houses, papers, and effects" against both private thuggery and erroneous governmental prosecutions. Similarly, metal detectors at airports help make Americans more secure against private terrorism.

By contrast, the Pottawatomie policy is more intrusive with less obvious security benefits. At best, it detects and deters drug use, not rape and murder.

The Interrelation of Equality and Privacy

Vik: So far, you've argued that a DNA database would respect both equality and privacy. In fact, aren't these two issues interrelated?

Akhil: They are indeed. Although equality arguments and privacy arguments are often in tension, there are times when the best way to get more privacy is by increasing equality. DNA testing may be one of those times.

If every voter is to be tested and part of the database, ordinary voters will have a much stronger interest in enacting and preserving strong privacy safeguards. Under current law, by contrast, very few privacy protections are in place, in part because the persons now in the database-suspects and convicts, by and large- have limited political clout.

Fifth Amendment Objections:
Distinguishing Between Testimonial and Nontestimonial Compulsion

Akhil: That Amendment prohibits compelling a criminal defendant to be a "witness" -that is, to give testimony or something closely akin to testimony. Courts have long held that compelling suspects to appear in line-ups, to undergo fingerprinting and blood and breathalyzer tests, to execute handwriting samples, and to do other "nontestimonial" things fall outside the Fifth Amendment's letter and spirit.

That's why blood testing and fingerprint testing are common practice today--procedures resoundingly affirmed even by the Warren Court at high tide. In our earlier Findlaw Dialogue on the Fifth Amendment, we've explained why we think those cases are sound and, indeed, should be extended. DNA testing comfortably falls on the nontestimonial side of the line, and thus raises no serious Fifth Amendment problem. The argument that samples from a suspect's body that provide information about him or her are thereby "testimonial," so that mandatory extraction of those substances is a Fifth Amendment violation, has long been rejected by courts.

Vik: What do you propose to do with the biological samples themselves after they have been tested and the junk-DNA identifying information-the "DNA fingerprint"-- has been stored in the database?

Akhil: The samples could be destroyed, or secured in the equivalent of Fort Knox.

But Can Government Be Trusted to Play By the Rules?

Vik: In theory, your proposed safeguards seem sensible, but aren't you afraid that in practice the government will secretly break the rules you have proposed?

Akhil: Almost all technology could be abused by the government; but in general we do not ban technology if it is also capable of dramatically improving life. I have also proposed stiff punishments for anyone abusing the DNA database or the samples themselves.

I admit that there are many issues that would need to be resolved in the national conversation on DNA databases, and security issues and penalties for misuse, including government misuse, of DNA samples are among them. My Times proposal is a tentative one that might need to be revised as various technological issues were clarified in the national debate. It would be especially important that the members of my proposed DNA court be distinguished civil libertarians who would be aided by staffers who would keep abreast of new technological possibilities and dangers.

In principle, a well crafted DNA testing regime would be more egalitarian, less intrusive, and more justified than the drug testing policies you and I have condemned. It would help find the guilty while also freeing the innocent. And it would provide much more privacy protection for the persons included in the database than does current law.

Vik: I grant that there are indeed important differences between the Pottawatomie high school drug tests and your proposed DNA tests, and that your proposal lacks several of the vices of the Pottawatomie policy. But given the inherent riskiness of a truly comprehensive database, maybe your DNA proposal still falls on the wrong side of the constitutional line?

Akhil: Perhaps. I admit there are real risks in embracing my DNA proposals. But will you admit that there may well be greater risks in ignoring these proposals and continuing business as usual?

Vik: Can I take the Fifth?


Update: The Solicitor General recently weighed in on the meaning of the Second Amendment in a brief filed with the Supreme Court in United States v. Emerson. For our analysis of the Second Amendment and Emerson, see our first "brothers in law" column.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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