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Ethics and Information Technology

, Volume 6, Issue 1, pp 55–63 | Cite as

Beware! Uncle Sam has Your DNA: Legal Fallout from its Use and Misuse in the U.S.

  • Marcia J. Weiss
Article

Abstract

Technology has provided state and federal governments with huge collections of DNA samples and identifying profiles stored in databanks. That information can be used to solve crimes by matching samples from convicted felons to unsolved crimes, and has aided law enforcement in investigating and convicting suspects, and exonerating innocent felons, even after lengthy incarceration. Rights surrounding the provision of DNA samples, however, remain unclear in light of the constitutional guarantee against “unreasonable searches and seizures” and privacy concerns. The courts have just begun to consider this issue, and have provided little guidance. It is unclear whether the laws governing protected health information are applicable to the instant situation, and if so, the degree to which they apply. DNA databanks are not uniformly regulated, and it is possible that DNA samples contained in them may be used for purposes unintended by donors of the samples. As people live their lives, they leave bits of their DNA behind. They cannot be assured that these tiny specimens will not be taken or used against their will or without their knowledge for activities such as profiling to measure tendencies such as thrill-seeking, aggressiveness, or crimes with threatening behavior. Existing racial or ethnic discrimination and profiling may also encompass genetic discrimination and profiling, creating societal class distinctions. This article will explore the constitutionality of collecting genetic materials, the ethics of such activities, and balance the social good in solving crime and deterrence against the individual's security, liberty, and privacy.

DNA databanks privacy property unreasonable search and seizure 

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References

  1. L.B. Andrews. Gen-Etiquette: Genetic Information, Family Relationships, and Adoption. In M.A. Rothstein, editor, Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, pp. 255–280. Yale University Press, New Haven, 1997.Google Scholar
  2. G.J. Annas. DNA Fingerprinting in the Twilight Zone. Hastings Center Report, 20(2): 35–37, 1997.Google Scholar
  3. R.A. Brown. The Law of Property 8. In Walter B. Raushenbush, editor, 3rd ed., 1975.Google Scholar
  4. R.J. Carlson and G. Stimeling. The Terrible Gift: The Brave New World of Genetic Medicine, p. 211. Public Affairs, New York, 2002.Google Scholar
  5. J. Dwyer, P. Neufeld and B. Scheck. Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted, p. 262. Doubleday, New York, 2000.Google Scholar
  6. P. Finkelman. Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball? Cardozo Law Review, 23: 1609–1633, 2002.Google Scholar
  7. C. Goldberg. DNA Databanks Giving Police Powerful Weapon: The Instant Hit. New York Times on the Web, February 19, 1998.Google Scholar
  8. D. Hamer and P. Copeland. Living with Our Genes: Why They Matter More Than You Think. Doubleday, New York, 1998.Google Scholar
  9. K.E. Hanna. Senate Passes Genetic Nondiscrimination Bill. Hastings Center Report, 33(6): 8 November-December 2003.Google Scholar
  10. J.L. Hustead and J. Goldman. Genetics and Privacy. American Journal of Law and Medicine, 28: 285–307, 2000.Google Scholar
  11. E.J. Imwinkelried and D.H. Kaye. DNA Typing: Emerging or Neglected Issues. Washington Law Review, 76(4): 413–474, 2001.Google Scholar
  12. D.H. Kaye. American Society of Law, Medicine and Ethics conferences, Controversies in Genetics: Emerging Issues in Genetic Testing, Forensics, and Therapeutics, MA, September 2002.Google Scholar
  13. J. Kimmelman. The Promise and Perils of Criminal DNA Databanking. Nature, 18(7): 695–696, July 2000.Google Scholar
  14. J.E. McEwen. DNA Data Banks. In Mark A. Rothstein, editor, Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, pp. 231–251. Yale University Press, New Haven, 1997.Google Scholar
  15. J.D. McInerney. Genes and Behavior: A Complex Relationship. Judicature, 83(3): 112–116, November-December 1999.Google Scholar
  16. D. Nelkin. The Social Power of Genetic Information. In Daniel J. Kevles and Leroy Hood, editors, The Code of Codes: Scientific and Social Issues in the Human Genome Project, pp. 177–190. Harvard University Press, Cambridge, MA, 1992.Google Scholar
  17. P.N. Ossorio. Property Rights and Human Bodies. In D. Magnus, A. Caplan and G. McGee, editors, Who Owns Life? pp. 223–242. Prometheus, Amherst, NY, 2002.Google Scholar
  18. M.A. Rothstein. Genetic Secrets: A Policy Framework. In Mark A. Rothstein, editor, Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, pp. 451–495. Yale University Press, New Haven, 1997.Google Scholar
  19. M.A. Rothstein. The Impact of Behavioral Genetics on the Law and the Courts. Judicature, 83(3): 117–123, November-December 1999.Google Scholar
  20. S.C. Seiden and K. Morin. The Physician as Gatekeeper to the Use of Genetic Information in the Criminal Justice System. Journal of Law, Medicine and Ethics, 30: 88–94, 2002.Google Scholar
  21. W.S. Sessions. DNA Tests Can Free the Innocent. How Can We Ignore That? Washington Post: B02, September 21, 2003.Google Scholar
  22. J.D. Silver and C. Lash. U.S. targets DNA backlog. Pittsburgh Post-Gazette: p. A–1, A-12, March 12, 2003.Google Scholar
  23. R. Willing. Mismatch Calls DNA Tests into Question. USA Today, February 8, 2000.Google Scholar
  24. F.M. Zweig, J.T. Walsh and D.M. Freeman. Courts and the Challenges of Adjudicating Genetic Testing's Secrets. In Mark A. Rothstein, editor, Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, pp. 332–351. Yale University Press, New Haven, 1997.Google Scholar

Copyright information

© Kluwer Academic Publishers 2004

Authors and Affiliations

  • Marcia J. Weiss
    • 1
  1. 1.Point Park UniversityPittsburghUSA;

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