The Boston Globe ran a lengthy article that begins:
Imagine you sto by a Starbucks one morning, and the shop is robbed only minutes after you leave. Witnesses say the perpetrator was drinking coffee, so investigators retrieve dozens of cups from the trash, looking for genetic evidence. When they analyze it, they may find the robber’s DNA, but they’re going to find many other people’s as well—including yours.
What can they do with that information?
Instinctively, it feels like the answer should be “nothing”—that the DNA is yours, and anyone who uses it without your permission has crossed a line. Those molecules contain data about your heritage, your appearance, your predisposition to disease—all kinds of secrets you had no intention to release to the world when you threw your cup away.
But the legal reality is something quite different: Your DNA has just entered a gray area.
“In general the idea is anything you intentionally relinquish to the public, to scavengers, in the garbage, is free for anyone,” said Elizabeth Joh, professor of law at the University of California Davis. This is true for your hard drive, your diary, your credit card statements—and it’s true for your DNA, regardless of whether you realize you’re casting it aside.
Legal scholars call this material “abandoned DNA,” and Joh is one of a handful of thinkers saying it’s time the law reckoned with what rights we have to this trove of extremely personal information. Detritus containing DNA was effectively useless to most people two decades ago. But today it is becoming faster and cheaper to sequence fragments of DNA—revealing the unique genetic material that begins to make us who we are—and the law has yet to catch up. State laws are a patchwork of regulations, and most jurisdictions, including Massachusetts, are mum about the privacy status of the DNA we leave behind us every day.
Legal scholars argue that the free-for-all status of abandoned DNA poses an immediate threat to our privacy, not just because of problems that might arise down the line, but because of abuses that are already possible. The problem is hard to solve because abandoned DNA doesn’t fit neatly into any of our existing legal categories: We have a strong expectation of privacy about our medical records, and state and federal laws increasingly protect genetic information; by contrast, simple property left behind belongs to anyone who picks it up. The DNA we leave behind is neither and both: It is garbage that also contains vital information. And right now, as far as the law is concerned, it is essentially fair game.
To the extent that the legal system is grappling with abandoned DNA, it’s chiefly in the criminal realm. Police are making more active use of DNA all the time, collecting and storing the information it contains, and a vigorous debate is underway about the privacy rights we have over our DNA in the context of an investigation. Later this spring the Supreme Court will decide, in the case Maryland v. King, whether the police can force a suspect to give a DNA sample when he or she has merely been arrested—but not yet convicted—for a crime.
“Abandoned DNA” comes into play when the police don’t have a DNA sample, and can’t force a suspect to give one up. In Washington in 2003, police posed as a fictitious law firm and sent a letter with a return envelope to a murder suspect named John Nicholas Athan, inviting him to participate in a fake class-action lawsuit. He replied, and police lifted DNA from Athan’s saliva on the seal of the envelope and used it to convict him of the killing. The Washington State Supreme Court reviewed the technique and ruled it permissible, explaining that as soon as a letter goes in the mail, “The envelope, and any saliva contained on it, becomes the property of the recipient.”
What might at first seem like clever police work strikes Joh as a very slippery slope. In treating DNA the same way we treat the envelope it came on, she suggests, we miss some important differences. First, DNA is uniquely hard to hang onto: It’s in stray hairs and on chewing gum, and we constantly give it away without choosing to. “What can a person do to so stop shedding DNA?” she asks. Second, there is a meaningful difference between physical objects that contain DNA and the information encoded on them. The former is just spit on the sidewalk; the latter reveals facts about us that we may not even want to know ourselves, and we’d like to think that the law can also make that distinction.
That might sound very subjective—that the difference between a molecule of gum and a molecule of DNA is how we feel about it—but privacy law does sometimes hinge on just that. In a landmark 1967 decision, the Supreme Court expanded Fourth Amendment rights, which prohibit illegal searches and seizures, to include what Justice John Harlan called the “reasonable expectation of privacy”—which, to genetic-privacy advocates, clearly applies to DNA. . . .