Can the government force people who are arrested – but not yet convicted of a crime – to give a DNA sample without a search warrant, or does that violate the Fourth Amendment?  One arrestee is asking the U.S. Supreme Court to consider this important question, and this week EFF urged the court to take the case.

A federal law mandates DNA collection for those who have been arrested for felonies. The FBI analyzes the samples, and puts a profile into CODIS, a national database.  Those who aren’t eventually convicted of a crime can get their information removed if they request to do so, but data from other individuals remains indefinitely.  In this case from the Third Circuit Court of Appeals, U.S. v. Mitchell, the defendant argues that the DNA collection violates his Fourth Amendment right against unreasonable searches and seizures.

Some judges have considered DNA profiles in the same light as fingerprints – a means of identification.  But DNA is much more than that.  It can reveal your family background, your current health, and your future propensity for disease, among other personal details.  In the future, as technology advances, scientists will be able to read even more into DNA.  Meanwhile, the government is collecting this information without warrants, and storing them in a database that’s freely accessed by state and federal law enforcement agents across the country without any need for a search warrant. The Fourth Amendment prohibits warrantless searches and seizures of private information, and we think its protections apply to the DNA collection at issue here.

Earlier this summer, we filed a brief before the Ninth Circuit Court of Appeals, arguing that this warrantless DNA collection violated the Fourth Amendment. But shortly before the case was to be argued, the defendant pleaded guilty, making the issue go away and forcing the appeals court to dismiss the case. Now, without the Supreme Court’s intervention in this Third Circuit case, the blanket DNA collection from people who are not convicted of crimes continues unchecked – perhaps leading to a future where everyone’s DNA is sampled, profiled, stored, and routinely accessed by government officials without suspicion of any criminal wrongdoing.

We hope the Supreme Court will take our advice, and review this complicated and controversial practice.