Legal Limits Murky for Use of 'Discarded' DNA Everywhere people go, they leave little bits of DNA behind. The saliva on a coffee cup or a stray hair can tell criminal investigators a lot about a person. Courts have said little about how much of a right people have to keep that genetic material private.
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Legal Limits Murky for Use of 'Discarded' DNA

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Legal Limits Murky for Use of 'Discarded' DNA

Legal Limits Murky for Use of 'Discarded' DNA

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It's MORNING EDITION from NPR News. Good morning. I'm Steve Inskeep.


And I'm Renee Montagne.

Georgia prison authorities released a man yesterday who was convicted for raping an elderly woman back in 1980. After all those years in prison, DNA testing showed he did not commit that crime. Those found innocent through genetic fingerprints can only embrace the technology. Yet DNA evidence is raising new ethical questions, as authorities rely on it more often and use more techniques and new techniques to get that DNA. We'll hear more in a series of stories on NPR programs today.

This morning, do you have a right to keep your genetic material private? Here is NPR justice correspondent Ari Shapiro.

ARI SHAPIRO: I'm sitting here in the studio with a cup of coffee, and just by taking a drink from this mug...

(Soundbite of sipping)

SHAPIRO: ...I transform this ordinary coffee cup into a storehouse of information about me.

If forensic scientists just sample the saliva on the rim of the mug, they can learn about my familial background, potentially my ethnic heritage, my susceptibility to diseases. And so the question is, if I set this coffee cup down on the table, take off my headset, and leave the studio altogether, do I have any privacy right to the DNA that I left behind on the rim of that mug?

Mr. BARRY SCHECK (Innocence Project): Traditionally the law has been that if you abandon your DNA, you lose it.

SHAPIRO: Barry Scheck co-directs the Innocence Project, a group that uses DNA evidence to get wrongly convicted people out of prison. He thinks there should be limits on what investigators can do with abandoned DNA.

Mr. SCHECK: It may be one thing to match it against a database to do DNA typing; that's like comparing your fingerprint that you may have left on a coffee cup to other fingerprints that are in the databank of unsolved crimes. But it would be quite another thing to start searching that DNA for more private information.

SHAPIRO: Courts haven't really addressed how extensively investigators can test your DNA once they have it.

Washington State ACLU attorney Doug Klunder says courts have put few limits on how police can acquire your DNA.

Mr. DOUGLAS KLUNDER (Attorney): Somebody can't just come to me, demand a DNA sample.

SHAPIRO: Well, given that, as you say, we are shutting DNA all the time, is it any consolation that a law enforcement officer can't just come up to us and demand a DNA sample point blank?

Mr. KLUNDER: Not really. At a practical level there is no protection. If law enforcement wants to get your DNA, they can.

SHAPIRO: The Washington State Supreme Court recently underscored that point in a case where police tricked a suspect into giving a DNA sample.

The Seattle police suspected John Athan of raping and murdering a 13-year-old girl. The case had gone unsolved for more than 20 years. Detectives posed as a law firm. They sent Athan a letter inviting him to join a class-action lawsuit. And when he responded by mail, the forensics lab tested the DNA where he'd licked the envelope. It matched the 20-year-old crime scene evidence and police arrested him. Athan said the ploy was an illegal invasion of his privacy.

At the Washington Supreme Court, the justices ruled 6-3 that police are allowed to use some deception, including ruses, for the purpose of investigating criminal activity. They said no recognized privacy interest exists in voluntarily discarded saliva. The dissenting justices called the ruling breathtaking in its sweep. They said DNA is not just a matter of identity, but contains the most intimate details about a person.

This has been a favorite theme of science-fiction movies, like "Gattaca," where Ethan Hawke's character tries to pass as a genetically pristine person in a world where a DNA scan takes the place of a job interview.

(Soundbite of movie, "Gattaca")

Mr. ETHAN HAWKE (Actor): (As Vincent Freeman) Each day I would dispose of as much loose skin, fingernails and hair as possible to limit how much of my invalid self I would leave in the valid world.

SHAPIRO: But one of the lessons of the movie is, you can scrub yourself head to toe and vacuum your computer keyboard every day, and you will still leave bits of yourself behind.

(Soundbite of movie, "Gattaca")

Mr. HAWKE: (As Vincent Freeman) I think I killed the mission director.

Mr. JUDE LAW (Actor): (As Jerome) What makes you think that?

Mr. HAWKE: (As Vincent) They found my eyelash.

Mr. LAW: (As Jerome) Where?

Mr. HAWKE: (As Vincent) In the corridor.

Mr. LAW: (As Jerome) Ah, well, it could be worse. They could have found it in your eye.

SHAPIRO: "Gattaca" seems less fictitious today than it did when the movie was released 10 years ago. But Harvard professor and DNA expert David Lazer says look at it this way - the government can learn at least as much from our tax returns or from our phone records as they can from our genetic data.

Professor DAVID LAZER (Harvard University): One could build a very detailed profile of every single individual based on the information that they make freely available through credit card use, through cell phone use, through paying taxes and the like. It's very difficult to hide in this life that we live in the grid.

SHAPIRO: So, Lazer says, DNA should be the least of our concerns.

Ari Shapiro, NPR News.

MONTAGNE: Later today in ALL THINGS CONSIDERED, how Kansas police found a notorious serial killer using DNA from a family member.

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