May 2, 2010

everyone's a suspect

Should law enforcement be allowed to expand DNA databases to include non-felons? One of the central questions of the latest NFL resolution is answered with a resounding "no" by Tania Simoncelli of the ACLU, in "Dangerous Excursions: The Case Against Expanding Forensic DNA Databases to Innocent Persons," found in The Journal of Law, Medicine & Ethics, Summer 2006.

Simoncelli argues that first, preserving non-felons' DNA "turns the presumption of innocence on its head," turning anyone in the database into a suspect. Even convicted felons aren't automatically guilty of future crimes. This is anti-democratic in nature, and dangerous in practice.

Second, at least in the American system, institutional safeguards enshrined in the Fourth Amendment would be threatened by DNA databases.
Regardless of whether a DNA bank should be considered beyond the general needs of law enforcement, the proposition that the government's "special needs" outweigh the privacy interests of innocent persons seems beyond the pale, as a matter of Constitutional principle. While it is plausible that the courts could uphold the forcible taking and analysis of DNA of persons arrested on the basis of some diminished expectation of privacy while in confinement, the permanent retention of that DNA cannot be justified on this basis unless a suspect is convicted of a crime.
Beyond 4th Amendment considerations, DNA databases create unique privacy concerns.
Unlike fingerprints - two-dimensional representations of the physical attributes of our fingertips that can only be used for identification - DNA samples can provide insights into personal family relationships, disease predisposition, physical attributes, and ancestry. Such information could be used in sinister ways and may include things the person herself does not wish to know.
Abuse of such a system is highly likely.
[S]pecific cases of abuse of police databases indicate that penalties alone do not sufficiently deter misuse. In 2001, it was revealed that more than ninety known cases of abuse of Michigan's Law Enforcement Information Network had occurred over five years. Abuses included police officers and other law enforcement personnel tapping into the network to obtain home addresses or other background information on love interests and seeking revenge or an upper hand in personal, legal or political conflicts. And while Michigan law clearly indicates that such an abuse qualifies as a misdemeanor, punishable by up to ninety days in jail and a $500 fine upon conviction, only three of the officers were prosecuted for these crimes.
Simoncelli details many practical concerns that are of secondary concern here, given that their impact is utilitarian rather than a matter of violated rights. They include the diminishing returns of an expanded dataset, the possibility of false convictions via planted DNA evidence (the paradoxical result of heightened trust in such evidence), overworked crime labs, untold costs (somewhat mitigated by falling prices), and the necessity of a total-population database to ward off concerns about "racial distortions in our criminal justice system."

In all, the article is well worth reading as a primer on some of the primary arguments in the debate.


ZT said...

One problem I'm encountering on the Aff is that all the literature is addressing specific negative plans that may not be run. For example, the most commonly-criticized proposal, adding the DNA of anyone who is arrested (rather than just incarcerated or convicted), is attacked on grounds (like you posted) of creating racial distortions, ruining the presumption of innocence, etc. However, the negative might advocate a universal database, which bites out of all those harms, while having its own (like more privacy problems, security issues, cost, etcetera.) It's impossible to know what to run in the AC (and a smart negative will have multiple NCs with not just different arguments but different advocacies.) The NFL needs to stop giving resolutions where you have to stand up and argue against something without knowing exactly what you're arguing against. This same kind of dilema occured with sanctions.

Jim Anderson said...


The problem stems from the NFL's insistence on using resolutions that declare things "unjust," so we have to affirm a negative statement. It's awkward.

However, the advantage of the Aff is that you get to set the grounds of the debate. You can set up a "fork," a nice dilemma that makes things tough for the Neg: if it isn't effective, it's pointless under any utilitarian standard (and utilitarian logic most likely underpins its use). But for it to be effective, it has to be universal--which is unacceptable under a rights-based standard. Run a rights-based framework on the Aff, get your opponent to concede in CX that the primary justification for a DNA database is utilitarian in nature, and you're all set.

P.S. You may already know this, but for those who don't: with the more conservative judges at the NFL tournament, you're going to run into trouble if you throw around phrases like "plans" and "bites out of all those harms." NFL LD isn't plan-based, although in the next five years it will probably head that way.

ZT said...

I'm not sure if affirming negative statements is always a problem, or just in these afformentioned circumstances. I think the affirmitive should be the side that is expected to set out a more detailed philosophical story (because of the full 6 minute AC), and there are often actions in which the reasons opposing them best fit this category.

The only problem with the fork, though, is that you have to split your speech time between justifying why it wouldn't work if it wasn't universalized, and why it would be unjust if it was. If we say that general framework takes one minute, than that's 2.5 minutes per scenario. The negative, however, only has to disprove one of those statements, and can put 7 minutes worth of firepower on 2.5 minutes worth of origional arguments, and then follow up with 6 minutes after Aff's 4.

I've found that its convienent to turn plans into "advocacies," and things like offcases into "underviews," etc.