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US Supreme Court Rules Arrestee's Privacy Interest Insufficient to Prevent DNA Collection as NSA Leak Reveals Broad Monitoring of Phone and Internet Communications

Recently, in Maryland v. King, the United States Supreme Court held that performing cheek swabs to collect DNA for identification purposes from individuals arrested for serious offenses is a legitimate booking procedure, like fingerprinting and photographing, and therefore is reasonable under the Fourth Amendment.

The case involved Alonzo King, a man who was arrested for felony assault. After his arrest, his DNA was taken by a cheek swab as part of Maryland's routine booking procedure for individuals who have been arrested for serious offenses. The DNA was later checked in the national database of DNA taken from crime scenes (CODIS), and King's DNA matched DNA taken from an unsolved rape case several years earlier. This match resulted in King's conviction for the rape. On appeal to Maryland's highest court, the court found the collection of King's DNA unconstitutional under the Fourth Amendment as an unreasonable search.

In a 5-4 decision, the Supreme Court found that Maryland's DNA collection booking procedure was a search, but that it was not unreasonable because the government's interest in identifying arrestees outweighed the individual privacy interests against the intrusion which was negligible.

The dissent, headed by Justice Scalia, eviscerated the majority opinion noting that "[t]he issue before us is not whether DNA can some day be used for identification; nor even whether it cantoday be used for identification; but whether it was used for identification here." Justice Scalia pointed out that in the case before the Court, the DNA collection procedures could not be for identification of the arrestee since the collection and analyzing process took far too long to be useful for identification. Further, the Maryland law in question banned using the collected DNA for any purpose other than purposes listed in the law, and identification was not a listed purpose. Alas, with only three other Justices on his side, Justice Scalia lamented, "[s]olving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail."

Shortly after the Supreme Court released Maryland v. King, more issues sprang up implicating serious privacy concerns; someone leaked classified information from the NSA that showed it is monitoring internet traffic using various programs (PRISM, Boundless Informant, etc.) to try to root out terrorist plots. The agency also has apparently obtained a secret court order providing it with ongoing blanket access to Verizon's call logs. This order apparently requires no individualized suspicion and applies to all Verizon subscribers in the US.

What does this mean for privacy? The Supreme Court has already said that citizens have no reasonable expectation of privacy in information stored or kept by others. Thus, communication information stored by cell phone carriers and technology companies is probably not protected by the Fourth Amendment for the purposes of the consumers, but can such blanket monitoring by the government be reasonably expected? Repeated and constant intrusions into the daily lives of citizens may result in a weightier privacy interest than Alonzo King's diminished privacy interest in preventing a negligible intrusion into his life. Then can the Fourth Amendment, which protects an individual right, protect the rights of individuals together?

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