I am fearful that science and the Supreme Court will do away with the ability to remain anonymous. Last week, in Maryland v. King, the Court held that the warrantless collection and analysis of DNA samples from individuals arrested "for a serious offense" does not violate the Fourth Amendment. It is a ruling sure to make law enforcement cheer, but liberty cringe.
Anonymity is an essential component of freedom. It is not by accident that Luke sets the stage for Jesus’ struggle against Roman tyranny with "a decree from Caesar Augustus, that all the world should be taxed" ("registered" in more modern translations). Oppression depends on information – the first piece of which usually is details about the identity of the oppressed.
Don’t get me wrong: I’m not about to move to a shack in Montana and live off the grid. The many benefits of a modern, industrial democracy outweigh the concomitant sacrifice of some portion of the ability to remain unknown to the government. Nor am I naïve. We live, to borrow an old Labor Party phrase, in a "cradle to grave" world: From birth certificates to death certificates, driver’s licenses to Social Security numbers, our government knows who we are nearly every minute of our lives.
King, however, is a step too far. The opinion, as Justice Antonin Scalia’s acidic dissent notes, removes a crucial constitutional roadblock from the government’s path, namely, that (absent very narrow exceptions) the state cannot conduct a search and obtain incriminating evidence without a warrant. The case concerns a challenge to Maryland’s DNA Collection Act, which authorizes the police to collect DNA samples from anyone charged with "a crime of violence . . . or burglary." While the law also requires the government to destroy the samples if the individual is not convicted, or is pardoned, or if "all qualifying criminal charges are determined to be unsupported by probable cause," it still allows for a substantial intrusion into a person’s body and privacy.
The grave danger, of course, is what the police do with that DNA in the interim. Without the inconvenience of having to obtain a warrant, the government can use those samples to investigate other, unsolved crimes. Indeed, this is precisely what happened in King – after the defendant was arrested for assault, the police linked his DNA to an unsolved 2003 rape and charged him with that crime. That Alonzo King was the rapist (and a thug who had been arrested for menacing a group of people with a shotgun) does not make it any less troubling, from a constitutional perspective, that he was convicted on evidence obtained by an end-run around the Fourth Amendment.
To justify its ruling (in what Justice Samuel Alito, a member of the majority, described as "perhaps the most important criminal procedure case that this Court has heard in decades"), the majority indulges in the fiction that a DNA swab merely is an "identification" procedure, like fingerprinting and photographing, which the police use when booking an arrestee. Nonsense. Not only do police not actually use DNA samples to identify unknown suspects, the timing requirements of the Maryland law (not to mention the timeline in King) would make DNA-based identification a ridiculously lengthy process. As Justice Scalia points out, the majority’s "comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work."
Indeed, the majority’s true justification for upholding the Maryland law — "improv[ing] the criminal justice system and police investigative procedures" — belies its premise that DNA swabs are for identification. Relaxing the Fourth Amendment to allow the police to more easily investigate crime is, to be sure, a very alluring notion. It is also a slippery slope down to tyranny. The King majority apparently has forgotten that, in order to protect individual freedom, the Bill of Rights is supposed to make the government’s job harder, not easier.
Do not be gulled, moreover, by the seeming limitation that the majority places on its holding, i.e., that DNA swabs are permissible only for those arrested for "serious" offenses. What is trivial today can be serious tomorrow, if the Court chooses to make it so. And when the government, relying on the precedent set by King, starts to collect DNA samples from all arrestees to aid "police investigative procedures," I fear that the Court will follow an expedient path instead of a constitutional one.•