Once the arrested bit is set, it is immutable in the eyes of the State of California. Law enforcement knows if you have been arrested in the past even if the specific reasons are expunged at the request of the arrestee. Also, there's a very narrow window to request that arrest records be expunged. If you are arrested and acquitted or the charges are dropped, get in contact with the court as soon as possible to make sure you are within the window.
The way it was explained to me by law enforcement people is that law enforcement has a right to know if you have ever been arrested so that they can take safety precautions if you are ever arrested again. IMHO, that's a weak argument.
> I guess the lawyers have a way of justifying this...
Lawyers have other safeguards in the courtroom, so that random police habits don't mess up the entire system. For example, prior arrests are generally inadmissible. It doesn't mean this is a nonissue for citizens, but it blunts its ability to corrupt the entire process.
There are more violent crimes than can be tried. This is a _hard_ problem. Of the options, simplified a bit:
a) try fewer crimes and let more suspects free
b) try all crimes and forgo the right to a speedy trial
c) increase the funding of the criminal justice system by a factor of 10-100
d) allow prosecutors and defense attorneys to negotiate settlements in easy cases, to avoid wasting court resources, and providing a path for leniency for certain defendants
(d) has flaws, but I'm not surprised our system has opted for it as the least bad solution.
Legal scholars have struggled to find a better approach for decades. Curious to hear your recommendation, really interested in novel approaches to this issue.
The problem is that there are too many arbitrary laws that are applied capriciously by prosecutors who don't care whether people are innocent or guilty, that these same prosecutors don't care whether the due process of law is fact not fiction, and finally that when these prosecutors deliberately subvert the process or threaten people with horrendous consequences unless they sign a plea deal (even when they know the accused is innocent), these people suffer no consequences.
Just to clarify, I didn't mean "violent crime" is the problem, I was talking about limited resources in the justice system. It's the ratio of crimes to trial resources that causes this problem, not the raw number of either alone. Scarcity / imbalance forces a dilemma, a dilemma that's tempting to ignore, because it's a hard problem.
Sometimes hard problems look simple to people who have never worked in the profession. It's like how people who've never written code ask, "Why don't programmers just write software without any bugs / that can't be hacked?"
On the other hand, sometimes an outsider has a fresh perspective that can point out flaws in old habits.
Could be either here, but let me explain why I think it's the former.
I worked in the criminal justice system in a major metro area. Most the people I knew in the profession swapped between defense and prosecution every few years, because they were interested in the process, not in scoring points for one side.
I strongly suspect that's because people who don't have that mixed perspective, the people who are just overzealous to one extreme or the other, they are worse at connecting with judges, who pride themselves on impartiality. Their crusader bias makes them bad at their job, so eventually they get burnt out and leave.
That's not to say there aren't obstacles to fairness in the US justice system. Real problems. There are a ton, some on each side. For example: Public defenders are vastly under-resourced. Prosecutors have resource dilemmas, but defenders are just fucked. Juries have zero sympathy for victims that aren't like them. Jurisdictions that are right next door to each other can approach low level crimes way differently, because of uneven resources, so walking a block can turn a no jail time misdemeanor into a ten year offense. Those with psychological problems or mental disabilities should basically never be put in front of a jury, as either a victim or as a defendant. Also, the mentally ill need solutions that aren't jail, but they're often shoehorned into a system that only makes their situation worse.
Having seen all that on a day to day basis, the problem you described, where prosecutors just love framing innocents because fuck justice? That doesn't line up with my experience at all. I mean, I'm all for safeguards, but there are some other issues too, some of which seemed slightly more common to me.
Only the arresting officer(s) would directly "remember" your arrest if it were not permanently recorded in a database. California is a very large state. Your unofficial reputation shouldn't follow you from San Diego to San Francisco.
Yes, I understand that only the people involved in an arrest would have recollection of it.
But that is just the point. A database differs in degree from personal memories (it follows you around), but it is not different in the sense raised by a statement like That seems directly opposed to the presumption of innocence. (a second interaction could be colored by an officer's memory just the way an interaction could be colored by an entry in the database).
In the case of surveillance and databases, a difference of degree is a difference of kind. Having perfect memory stored for all time, accessible to all of a class of people, is not remotely comparable to a few people with fuzzy memories that fade over time.
Doesn't the state collect DNA from all newborns by law as well?
Now, I do see in principle why one would want one's DNA profile removed if an arrest doesn't result in conviction, but if the state already collects DNA at birth by law, would that not supercede these cases? Alternatively, the state could simply pass laws making retention from this input stream legal.
Does it? I was not aware of that. I know that my state, Pennsylvania, does no such collection -- or at least it did not a decade ago when my children were being born.
My impression is that the collection is so routine and automatic that most parents don't even notice it's happening, and would need to assert themselves in advance in writing to exercise their religious opt-out.
This site suggests Pennsylvania's policies for sample retention (8 months) and use of results (by subject and their medical provider only) are more restrictive than "save indefinitely" states like California:
If indeed DNA is being collected at birth, without consent, the EFF would have similar grounds to object to that. If an act is against the law, it doesn't matter that the state is breaking that same law in another instance. Breaking the law twice doesn't validate it, or, as my first grade teacher Mrs. Thompson might have said, two wrongs don't make a right.
It does and people are aware. It's offered as screening for diseases, etc. Few parents opt out. Fingerprints are also collected at DMV, they should look into that, afaik, there is no opt out, except not getting an ID.
> California officials argue that the court should follow the lead of the U.S. Supreme Court, which ruled in Maryland v. King that citizens’ privacy rights are outweighed by the government’s need to use DNA to identify arrestees, just as it uses fingerprints.
The article makes it sounds like the Supreme Court has already ruled on this issue. Wouldn't that make this California case moot?
In Maryland v. King the crucial difference is that according to the Maryland law in question the DNA sample has to be destroyed if there is no conviction and it can't be processed before the arrestee has been charged. (according to wikipedia: https://en.wikipedia.org/wiki/Maryland_v._King)
> The article makes it sounds like the Supreme Court has already ruled on this issue. Wouldn't that make this California case moot?
The Supreme Court issued a (relatively) narrow ruling; the EFF is arguing that this principle can and should be applied to a broader ruling.
This is a pretty standard pattern in judicial proceedings. For a number of reasons, judges are often hesitant to rule too broadly, so advocates push for successively broader rulings until they achieve their goal.
(It also sometimes happens in reverse, with advocates pushing for narrower rulings, but that's a different matter).
I have a lot of faith in the EFF but in this case I think they are confused. Our DNA is one of the least private aspects of ourselves. We share the vast majority of it with our family and even neighbors. The idea of hiding it is absurdly impossible. We leave it everywhere we go in quantities that are more than sufficient to completely reconstruct our genome. We would literally need to wear full body latex suits with filtered respirators to keep it private. In the medium term, the idea of having private DNA while living in a public environment is as incredible as desiring to have a public social experience while keeping your face completely hidden. DNA sampling arrestees is no more invasive than taking their photo. It is only our current technical capacity that makes us see the two as different.
This is kinda like saying that because our bodies constantly emit electromagnetic radiation that could be used to construct a detailed nude image, using a camera with the tools needed to do such isn't invasive.
What happens when we have the technology to read internal monologues? What happens when the police are able to hear the lawyer talking to their client because they are talking too loud for the new technology... if they didn't want to be heard should they whisper... and what happens when even that is too loud? Under this reasoning, most all privacy is as good as dead and we are just waiting for the technology to get here.
> Under this reasoning, most all privacy is as good as dead and we are just waiting for the technology to get here.
Because it is! Thank you, somebody finally noticed. You can't preserve privacy and push technology forward, it's either-or. The best we can hope for is, if we chose to continue on the path of progress, that we'll establish social customs around expected privacy, that will amount mostly to "gentlemen turn around and do not look when a lady is undressing in a shared room" and to the privacy of correspondence ("we obviously can read your mail, but it's a common courtesy that we don't"). But you can't stop the fact that we're all radiating information to the world. And there's nothing invasive in collecting it - you don't have to touch me, you just have to stand within my light cone and take a look around.
There is, but I don't believe it balances out, not in the slightest. You can obstruct a channel, but I can use others to reconstruct it. Everything you do leaves casual traces within your lightcone - be it low-level like your reflection in the shop window, or high-level like behaviour of your spouse being influenced by his knowledge about your plans, which can help reconstruct them even if you lie about them. It's like with error correction - you can try and damage the information, but we're figuring out more and more ways in which to recreate it.
At some point, to protect privacy, you'll have to expend a lot of computing power on lying about everything to everyone around you - which is not exactly a way to live or run a society.
I strictly compartmentalize. You could call it lying, I suppose. But it's mostly just not sharing anything between compartments. There's nothing complicated for me to remember.
When it comes to DNA we are already nude. You will have better luck keeping your face private and going about a normal life than hiding your genome from the world. The former can be accomplished with a mask. The latter requires living in a plastic bubble and never sharing the genomic information of anyone.
I do not want to live in a world where everyone must be masked, and although the utility of sharing information about DNA is of a different kind I will also be profoundly sad if we are too afraid of the bogeyman to let other people know what we are made of.
Perhaps I feel so strongly about this because there is literally not one case where DNA information alone has resulted in harm. I challenge you to provide an example. Digitized DNA sequence information from tens of millions of people is floating around in the world. If this were as dangerous as some people make it out to be I would expect there to have been many problems already.
(The example that I have heard is when someone learns their biological parents are not who they think they are. Although this may be troubling I find it absurd that someone should have the right to delude or be deluded about their genetic background. At worst it can pose a dangerous liability as someone lacks information about diseases that may affect them or their offspring.)
Unfortunately you are mistaken. The problem here is not the sharing of DNA information, but the incredibly poor resolution of the standard tests that are used in forensics.
> Two seemingly unrelated individuals—one white and one black—shared the same two markers at nine of the 13 places in the standard DNA profile.
Forensic standards of identity are based on a few _hundred_ base pairs of the three billion in each of our genomes. It is scientifically dishonest to represent this as a conclusive test of identity. The markers are not distributed randomly and large numbers of false positive matches against microsattelite databases are the norm.
If the full genome sequence of an individual were the standard of truth this would not be an issue. It would resolve the problem of mistaken DNA identity entirely! This is the problem the EFF should seek to solve.
>The problem here is not the sharing of DNA information, but the incredibly poor resolution of the standard tests that are used in forensics.
This seems like a goal post shift from 'DNA information alone cannot cause harm' to 'sharing of DNA information alone cannot cause harm', with the alone excluding all uses of DNA information. To me would be like arguing that giving everyone a nuclear bomb is not harmful, it is their use of the nuclear bomb that will cause harm. Or to generalize further, the harm is always the fault of the last event in a chain of events, and all events leading up to it cannot be blamed.
To make another extreme comparison, violations of the 4th amendment related to searches aren't harmful, it is only the (mis)use of that information that is harmful. That isn't an argument I'm buying.
DNA analysis is a tool that has a lot of failure cases that aren't properly understood by many. Keeping peoples' DNA out of databases is a good baseline defense until there is enough understanding and transparency to make sure it is used properly.
I'm not trying to hide it from the world. I'm just trying to keep it out of government databases, where it could be used to bother me over a crime I had nothing to do with.
How could that happen? If they have your DNA and find it at a crime scene and correctly identify you, wouldn't it mean that you were at the crime scene at some point? Perhaps at least you should be contacted to find out what you know. Perhaps for some reason your DNA is there and you have no alibi. This is not just a risk of DNA though: It would be the same effect if a witness saw you but did not see the actual criminal. It will be extremely difficult to categorically avoid this kind of mistake and keeping your DNA out of the public is not going to help.
Are you worried that the test will fail and generate false positives? That is a different issue from sharing your DNA with the government, and one that must be addressed.
The latter. Partial matches are one concern (where someone comes and asks you questions because they think one of your relatives that you've never met may have committed a crime), but laboratory errors and general investigational misconduct are the big one (e.g. http://www.cbsnews.com/news/dna-testing-foolproof/ from 2003, or a Brandon Mayfield like situation with DNA instead of fingerprints).
People can see and directly compare fingerprints, but DNA only showes up after extensive tests which gives it much stronger constitutional protections. Further it's only relevant in significant quantities as individual cells may end up hundreds of miles from where an individual has ever been.
Where you at the scene of the crime, or did you happen to walk by the factory where the shelf was manufactured?
PS: As we get better at testing DNA we ar e finding it less relevant.
The problem isn't that they're collecting DNA, it's that they're linking it to an individual for future identification.
Sure, I left my DNA all over some place I visited, but nobody has any idea who "I" am based on it, in the same way they don't have my fingerprints on file.
EDIT: Also note the DNA of everyone born after 1983 in California is on file.
As they are taking photos of the same people so that there is not question as to their identity in the future. What makes DNA different than the photo?
I don't know about you, but I can change my appearance a lot easier than I can change my DNA. Even this aside, a DNA link to your identity is a lot more accurate than just a photo.
What you're claiming about the privacy of DNA isn't strictly true. You're correct that, aside from mutations, we share all of our alleles with one or the other parent, and about half of them with full siblings, etc. But this information in itself doesn't enable one to predict the exact composition of your genome, which would be needed to form a predictive model of your body. It would still be possible to, say, link your DNA to that found at a crime scene, but you still sacrifice something by giving it up.
I have little hope that we will maintain this form of privacy, but that isn't to say nothing has been lost.
Another point, which is that although the precise composition of alleles in one individual is not known, even a handful of markers are enough to identify a member of a given family. People will share their genomes because sharing is incredibly beneficial and the risks are indistinguishable from 0. As long as people care about genealogy it will be difficult to prevent identification of your genome at a family level. This has been demonstrated for a set of anonymized genomes that were part of public genomics projects.
> Sharing sequencing data sets without identifiers has become a common practice in genomics. Here, we report that surnames can be recovered from personal genomes by profiling short tandem repeats on the Y chromosome (Y-STRs) and querying recreational genetic genealogy databases. We show that a combination of a surname with other types of metadata, such as age and state, can be used to triangulate the identity of the target. A key feature of this technique is that it entirely relies on free, publicly accessible Internet resources.
Unless we make sharing genomes illegal (and we absolutely should not!) this is going to become a hard fact of life. So we should focus on mitigating potential problems that arise in different ways.
I wasn't referring to identification (I even specifically mentioned that with respect to forensics). I'm talking about knowing the specific content of a subject's genome, the issue of primary concern. Even if you know the genomes of both parents, you can only evaluate the probability of their offspring possessing any particular combination of alleles. The more alleles you wish to know about, the lower the probability that any particular model is correct.
Regardless, you seem to completely disregard the argument for legal protections. If there were laws guaranteeing an absolute right to control one's genetic information, including who may possess it, much of this concern would go away.
We have not had this form of privacy for a long time, and I doubt we will regain it unless we would like to do away with DNA evidence altogether.
If anything we should be pushing for more precision in the use of DNA samples as evidence. The standards required for identification are incredibly low and result in large numbers of false positives. These poor standards cause harm. The correct use of DNA evidence can clarify crimescene events and has had the power to exonerate many falsely-accused people.
I think these are separate issues. There is definitely an important difference between being able to use DNA in criminal investigations and maintaining a database of every genome in the population. The first solves a problem of legitimate social concern, the second is the stuff of dystopian fiction.
None of this is at odds with insisting upon higher levels of precision and integrity in forensic science. We can talk about reducing the number of false positives and educating juries about the limitations of forensics without resigning ourselves to the unwelcome collection of our DNA.
Yet DNA is so easy to collect; you don't need permission. I think we'll have to get used to the idea of universal identification. Its inevitable. Better to come to terms with it.
I disagree that it's better to come to terms with it. If we were to normalize a sense of disgust at the practice we could institute legal protections against bulk collection. What you're describing is simply a world that few people want.
Like I said before, "I have little hope that we will be able to maintain this form of privacy." My dispute is that it isn't worth trying to save, or that it's a thing of little value.
Once the arrested bit is set, it is immutable in the eyes of the State of California. Law enforcement knows if you have been arrested in the past even if the specific reasons are expunged at the request of the arrestee. Also, there's a very narrow window to request that arrest records be expunged. If you are arrested and acquitted or the charges are dropped, get in contact with the court as soon as possible to make sure you are within the window.