As most of us know the 4th Amendment protects an individual against unreasonable search and seizures. Moreover a search is unreasonable where an officer violates an individuals "reasonable expectation of privacy" to obtain evidence without probable cause and a warrant, notwithstanding a number of exceptions. To determine if the officer violated an individuals reasonable expectation of privacy the court has looked at the norms of the society at the time. For instance, the use of infrared scanning to pick up the heat signatures of a suspect in his own home was deemed a 4th Amendment violation since a person has an expectation of privacy in his own home (the police could tell when someone in the house was bathing for instance). In the recent case of of Maryland v. King the Court considered whether mandatory DNA testing after an arrest was a 4th Amendment violation when it links the individual to an unrelated crime. The reasoning of the defendent is that unlike fingerprinting, DNA testing is far more intrusive, as it has the potential to give the police access to tremendous amounts of information regarding the suspect. This raises an important question though. In this information age private companies have access to substantial amounts of information about ourselves, about our financial status, our shopping preferences, our hobbies, and our intellectual interests. Thus, does the traditional "reasonable expectation of privacy" analysis have any relevency or logic in todays age? Or should a new test be created to preserve our traditional rights, but at the same time take into account the fact that we now enjoy very little privacy? What would this/should this new test look like?
The 4th Amendment in the Information Age
2 Comments
Obtaining the DNA profile and comparing it to avaible evidence in the criminal investigation at issue would seem to be a permissible 4th amendment search. The issue I see is when the authorities then take that profile and go "fishing" through their unresolved cases for a match. I can imagine problems with overstepping the boundaries of the legitimate search as well statistcal evidentiary issues.
As technology advances it has created situations in which a seemingly small intrusion leads to a vast amount of data. There seem to be two scenarios for this: (1) A small act of entry uncovers data held by the suspect, and (2) the act provides a small amount of data that due to its nature, allows for a second action to uncover great deals of information.
In the first situation it would seem that traditional 4th amendment principles may still govern. While not ideal, the greater the technical understanding of the courts, the better able they will be to determine if the initial breach should be made (i.e., breaking the encryption on a laptop) and what data is included in the search (i.e., limiting the search to bank records or photo files). The Plain View Doctrine might also be upheld, although courts may need a clearer explanation of what that entails. A case by case analysis seems the best solution in that situation.
In the second situation, it might be best to require a second warrant before undertaking the second step. Fundamentally, the second act extends the scope of the search and should require court approval or probably cause. It seesm possible that the first search may easily allow for the second search, for instance, if the DNA profile matches the rape under investigation, that could be held as probable cause for investigation if it matches with prior rape cases. Still, such permissions should be held to the relevant facts at issue--the DNA should be compared to prior rape samples, not prior murder samples.
Lastly, from an evidentiary standpoint there is an issue with the statistical significance of the DNA match when the suspect is picked out of the DNA pool at large instead of first being identified by other evidence. A DNA match is the probability that a person at random would have a similar profile to that of the suspect, not the probability that the suspect is guilty. The larger the pool of comparisons the higher the likelihood that a random person might match the suspect. Thus, if the DNA sample is compared to the population at large instead of a smaller group of suspects, preferably with corroborating evidence, then the reliability of the test which supports the intrusion is called into question.
So whats wrong you are findind with this amendment, i think privacy of an individual is at the top among all the socially legal factors.