C|M|LAW Professor Witmer-Rich and Law Student Brendan Heil Argue that DNA Profiles Should Get Greater Privacy Protection

C|M|LAW Professor Jonathan Witmer-Rich and C|M|LAW student Brendan Heil  published a Op-Ed piece in today’s Cleveland Plain Dealer.  Titled Keep DNA evidence private,  their article appears in a written pro/con debate in the Sunday opinion pages responding to the Ohio Supreme Court’s recent decision in State v. Emerson.  According to Witmer-Rich and Heil, in Emerson, the Court held that ‘the Fourth Amendment does not protect an individual’s personal DNA profile.’  In the Court’s words, “[a] person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample.”  Witmer-Rich and Heil argue that the Court  unnecessarily eroded DNA privacy for Ohio citizens.  The Plain Dealer, upon receiving the piece, solicited a response from Jacob S. Sherkow (a fellow at the Center for Law and the Biosciences at Stanford Law School), linked below.  Although the Plain Dealer will not be publishing responses, Witmer-Rich and Heil respond below to Sherkow’s piece.

To read Witmer-Rich and Heil’s article, please click here: http://www.cleveland.com/opinion/index.ssf/2012/12/keep_dna_evidence_private_jona.html

To read the other side of the debate, written by Jacob Sherkow (Stanford), please click here: http://www.cleveland.com/opinion/index.ssf/2012/12/dna_profiles_vs_sequences_jaco.html

In response to Sherkow, Witmer-Rich and Heil offer the following:

First:  Had the Ohio Supreme Court reasoned the way Sherkow did–clearly distinguishing between a limited “DNA profile” and broader types of DNA information, and making clear it was only the former that enjoyed no Fourth Amendment protection–it would have been more plausible and less alarming.  The decision used much broader logic than Sherkow does, and thus has potentially broader implications than his (more reasonable) opinion.  That’s partly why we called the opinion not only “startling” but “unnecessary,” i.e. the case could have been affirmed on much narrower grounds.

Second:  Sherkow’s argument is that we need not worry about the government using our DNA profile, which “only” identifies us and does not represent the entire DNA sequence.  This suggests that there should be no objection to the government requiring everyone in the country to submit a sample to a national DNA database, so long as only the profile is used and not the sequence.  If you find this troubling, you should find something troubling about Sherkow’s view.

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