DNA: US Law, DNA and the Fourth Amendment

As the US prepares to expand its DNA collection program, an interesting document has been passed to WikiLeaks from the Congressional Research Service

The US fourth amendment relates to the issue of  “unreasonable searches and seizures” has been considered for its implications for DNA collection

Abstract. Despite relying on different legal standards, courts have generally upheld laws authorizing law enforcement’s compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment of the U.S. Constitution. However, several developments might call this judicial consensus into question. Despite relying on different legal standards, courts have generally upheld laws authorizing law enforcement’s compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment of the U.S. Constitution. However, several developments might call this judicial consensus into question.

Full Article.

DNA: US follows UK

In a controversial move the US is following the UK in creation of laws to acquire DNA from suspects (i.e innocent and guilty people), rather than only the guilty.

Currently the US laws are mixed, with some states allowing collection of DNA prior to conviction or charge, but others allowing it on arrest.

The current laws are set to allow the US federal agents (e.g FBI, DEA, ATF, etc) to collect DNA on arrest of any person committing a “felon”, and any non-US citizen connecting any crime.

The UK laws have followed similar changes, though are around 5 years ahead of the US.

The laws in the UK initially allowed the DNA to be taken only from those charged and kept only if they were convicted. Then it was change so that the DNA could be kept even if the person was later found not guilty.

Then it was changed again, allowing the police to take DNA from any person, regardless of the crime upon arrest. There was no longer a requirement to convict or even charge people to obtain, or retain, the DNA.

However the UK has now gone through the cycle and these laws have been tested in the European Court of Human Rights – the equivalent of the US Supreme Court.

In the case of S and Marper v United Kingdom, it was found that the UK had over stepped its remit and breached the basic rights of the individuals “S” and “Marper” whose DNA had been retained, despite not being convicted of any crime.

In addition to this it is well known that there are errors with DNA databases, and that mass DNA databases do not work as effectively as politicians imply.

It should be remembered that as laws change, so do the goal posts of what is an is not acceptable.

Originally DNA was only taken from the guilty, then it was only retained from the guilty, now it can be taken from anyone.It used to be that the DNA would only be used for law enforcement purposes, but in the UK that has already changed as DNA samples have been sold onto other companies.

Laws change, and once the DNA data exists it can be used or misused, as much as the government allows.

No doubt the US will follow suit on this as well.

Data Privacy: FTC Guidelines

The Federal Trade Commission (FTC) has issued revised guidelines on how online advertisers should protect consumers’ privacy when collecting information about their web activities.

The guidelines were originally proposed in December 2007, as self-regulatory principles for organizations such as Google, AT&T, Facebook, or eBay.

Under the revised guidelines issued Thursday, the FTC calls for every website to have a clear statement that data is being collected. It says consumers should be allowed to choose whether to have information collected, and when data collection occurs outside the traditional website context, companies should develop alternative methods of disclosure.

Source

Internet Censorship: Teen Sex (US)

Early this year a case  in Florida raised an interesting case, involving child pornography v consensual sex.

Two teenagers, 16 and 17, were involved in a consensual sexual relationship.

The 16 and 17 year old took pictures of themselves, with a digital camera, of some of their sexual activities, and then emailed each other the pictures .  Some how the police became aware of this case and decided to arrest and prosecute the teenagers involved.

In Florida both the teenagers were above the legal age of consent, and therefore there was no offence of underage sex (or similar). However, the couple involved were below the age for sexual photography (as they would be in the UK, under Sexual Offences Act 2003), as a result the material was deemed to be pedophilic in nature, and the couple were involved in making and distributing it – even though there was no allegation of anything other than consensual sex, or that anyone other than the couple (until the police were called) had seen the images.

The couple appealed, but the Florida Appeals court, upheld the conviction.

This case would be a difficult one to judge, because of the effect of case law it is not just the merits of this case that must be considered, but all future cases. For example, if the judge, at appeal, had said “not guilty, because they are consensual”, then any person involved in distrubting, creating, or possesing images of 16 year old’s having sex would have the defence that the individuals were consenting, and the court would have to prove otherwise. Which can be difficult when those appearing in the photographs can not be traced.

The problem then gets worse, if peadophile is in possesion of pictures two 13 years old having sex, he could argue that they are 16 (they just look young), and that it is consensual. The prosecution would need to find the victims in the photograph to prove that they are both under 16 and not consenting, which is difficult, and can be impossible in many cases, given the international nature of the images.

Therefore the judge’s probably did not have any choice but to uphold the case,  which is unfortuante for the couple involved.