Here is one of my favorite Kozinski opinions (dissenting), in arguing that the court should uphold a convicted person's right to privacy, joining the most liberal members of the Ninth Circuit:
KOZINSKI, Circuit Judge, dissenting:
New technologies test the judicial conscience. On the one
hand, they hold out the promise of more effective law
enforcement, and the hope that we will be delivered from the
scourge of crime. On the other hand, they often achieve these
ends by intruding, in ways never before imaginable, into the
realms protected by the Fourth Amendment. Which is no
doubt why the Supreme Court has told us to be wary of “this
power of technology to shrink the realm of guaranteed privacy.”
Kyllo v. United States, 533 U.S. 27, 34 (2001).
The heat sensor technology at issue in Kyllo was a promising
new tool for law enforcement, except for one small defect:
It let the police get information about what was going on
inside people’s homes—something the Fourth Amendment
generally prohibits without a warrant. DNA fingerprinting is
another case in point. The good news is that it lets police
identify people far more easily than would be possible using
retro technology. The bad news is that those people could
well be us.
Once Kincade completes his period of supervised release,
he becomes an ordinary citizen just like everyone else. Having
paid his debt to society, he recovers his full Fourth
Amendment rights, and police have no greater authority to
invade his private sphere than anyone else’s. The difficult
question is whether the government may exploit Kincade’s
diminished Fourth Amendment rights while he is still a probationer
to obtain his DNA signature, so it can use it in investigating
thousands of crimes nationwide, past and future, for
the rest of Kincade’s life. Displaying an exuberant faith in the
positive power of technology, the plurality opinion answers
this question with a resounding yes, but I remain skeptical.
Stripped of its bells and whistles, the plurality’s theory seems
to be this: We have a pretty good idea that people who have
committed crimes in the past are more likely than others to
commit crimes in the future. It is thus very, very, very useful
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for us to get their DNA fingerprints now so we can use them
later to investigate crimes.
But if we accept the legal presumption—not questioned
here by anyone—that once Kincade leaves supervised release
he will be just like everyone else, authorizing the extraction
of his DNA now to help solve crimes later is a huge end run
around the Fourth Amendment. Or, to state it in reverse, if the
reason for taking Kincade’s DNA while he’s on supervised
release is that it will help solve crimes later, it seems equally
justifiable to take his blood after he comes off supervised
release. Ex-probationers are just as likely to commit crimes as
people now on probation, and including them in the CODIS
database would surely help solve even more crimes. Balancing
the minor intrusion the plurality sees from the taking of
blood—a mere pin-prick—against the “monumental” benefits
to society, op. at 11469, it is unclear how the balance could
be struck any differently as to ex-probationers than as to current
ones.
Which brings us to the people we really need to worry
about, namely you and me. If collecting DNA fingerprints can
be justified on the basis of the plurality’s multi-factor, gestalt
high-wire act, then it’s hard to see how we can keep the database
from expanding to include everybody. Of course, anyone
who already has to give up bodily fluids for alcohol or drug
testing—airline pilots, high school athletes, customs inspectors
and people suspected of driving while intoxicated—
would be easy prey under the mushy multi-factor test. But,
with only a little waggling, we can shoehorn the rest of us in.
As the plurality notes, blood is taken from us from the day we
are born pretty much till the day we die, and on many days
in between. What exactly happens to that blood after it leaves
our veins? Most of us don’t know or care, presuming (if we
consider it at all) that whatever isn’t used for testing is discarded.
But what if Congress were to require medical labs to
submit the excess blood for DNA fingerprinting so it can be
included in CODIS?
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Applying the plurality’s balancing analysis, I’m hard
pressed to see how this would violate anyone’s Fourth
Amendment rights. The benefits would continue to be huge.
The more DNA samples are included in the database, the better
off we are: More guilty parties will be found, more innocents
will be cleared and more unknown crime victims will be
identified. On the other side of the ledger, the costs would be
meager. By glomming onto blood already extracted for other
purposes, the government would have eliminated what the
plurality identifies as the most serious negative factor—the
piercing of the skin. Op. at 11465-66. Moreover, it’s hard to
say that most of us have any expectation as to what happens
to our blood once it leaves our veins in the doctor’s office; we
certainly don’t expect it to be returned to us. Arguably, we
have no more reasonable expectation of privacy in blood
turned over to third parties and abandoned than we do in our
trash cans or bank records. See California v. Greenwood, 486
U.S. 35, 39-41 (1988) (no reasonable expectation of privacy
in materials left on public street, like garbage); United States
v. Miller, 425 U.S. 435, 442-43 (1976) (no reasonable expectation
of privacy in material conveyed to third party, like bank
records, even if conveyed in confidence and for a limited purpose).
And without a reasonable expectation of privacy, there
isn’t even a “search” for Fourth Amendment purposes. Kyllo,
533 U.S. at 31-33. Which is why it is important to recognize
that the Fourth Amendment intrusion here is not primarily the
taking of the blood, but seizure of the DNA fingerprint and its
inclusion in a searchable database.
The plurality’s approach will cut even closer to home as
our techniques for extracting DNA improve and identifying
information can more easily be obtained from urine and
saliva, or from hair follicles inadvertently pulled out during a
visit to the barber or hairdresser. As the plurality points out,
op. at 11468-69 n.37, we can’t go anywhere or do much of
anything without leaving a bread-crumb trail of identifying
DNA matter. If we have no legitimate expectation of privacy
in such bodily material, what possible impediment can there
11532 UNITED STATES v. KINCADE
be to having the government collect what we leave behind,
extract its DNA signature and enhance CODIS to include
everyone? Perhaps my colleagues in the plurality feel comfortable
living in a world where the government can keep
track of everyone’s whereabouts, or perhaps they believe it’s
inevitable given the dangers of modern life. But I mourn the
loss of anonymity such a regime will bring.
This isn’t an issue we can leave for another day. Later,
when further expansions of CODIS are proposed, information
from the database will have been credited with solving hundreds
or thousands of crimes, and we will have become inured
to the idea that the government is entitled to hold large databases
of DNA fingerprints. This highlights an important
aspect of Fourth Amendment opinions: Not only do they
reflect today’s values by giving effect to people’s reasonable
expectations of privacy, they also shape future values by
changing our experience and altering what we come to expect
from our government. A highly expansive opinion like the
plurality’s, one that draws no hard lines and revels in the boon
that new technology will provide to law enforcement, is an
engraved invitation to future expansion. And when that inevitable
expansion comes, we will look to the regime we
approved today as the new baseline and say, this too must be
OK because it’s just one small step beyond the last thing we
approved. See Eugene Volokh, The Mechanisms of the Slippery
Slope, 116 Harv. L. Rev. 1026, 1077-1114 (2003). My
colleagues in the plurality assure us that, when that day
comes, they will stand vigilant and guard the line, but by then
the line—never very clear to begin with—will have shifted.
The fishbowl will look like home.
Anyone who doubts that CODIS will expand, prodded by
the voracious appetite of law enforcement, has only to consider
the growth of fingerprint databases. In 1924, when J.
Edgar Hoover became head of what was to become the FBI,
the Justice Department’s fingerprint files contained only
prints of those who had at some point passed through the
11533 UNITED STATES v. KINCADE
criminal justice system. Hoover, who favored universal fingerprinting,
moved to expand the database and aggressively
lobbied local law enforcement officials to submit prints to the
FBI. He took a further step in 1929 and began fingerprinting
all civil servants. The Alien Registration Act, passed in 1940,
eventually delivered over a million prints to the FBI. See
Simon A. Cole, Suspect Identities: A History of Fingerprinting
and Criminal Identification 246-47 (2001). Today, the
FBI’s Integrated Automated Fingerprint Identification System
contains the fingerprints of over 47 million people, including
prints “acquired related to a background check for employment,
licensing, and other non-criminal justice purposes” and
“submitted voluntarily by state, local, and federal law
enforcement agencies.” U.S. Dep’t of Justice, Fed. Bureau of
Investigation, IAFIS, at fbi.gov
(last visited Aug. 4, 2004). Several states require fingerprints
of all drivers’ license applicants. See, e.g., Cal. Veh. Code
§ 12517.3(a)(1); Colo. Rev. Stat. § 42-2-107(2)(a); Tex.
Transp. Code § 521.142(b)(1). California all by itself has the
prints of over 22 million drivers’ license holders on file, see
Dep’t of Motor Vehicles, Driver Licenses Outstanding by
County (2003), at dmv.ca.gov
dl_outs_by_county .htm, as well as the prints of lawyers, Cal.
Bus. & Prof. Code § 6054, and certain welfare recipients, Cal.
Welf. & Inst. Code § 10830(b)(1). See also Nat’l Conf. of
State Legislatures, Biometrics Implementation Legislation by
State (2002), at ncsl.org
licenseD.htm. Not all these fingerprint databases are currently
in searchable form, but given our improving ability to store
biometric identifiers electronically, it’s only a matter of time.
Because the great expansion in fingerprinting came before
the modern era of Fourth Amendment jurisprudence ushered
in by Katz v. United States, 389 U.S. 347 (1967), it proceeded
unchecked by any judicial balancing against the personal right
to privacy. As a consequence, we have become accustomed to
having our fingerprints on file in some government database.
The suggestion that law enforcement agencies, including the
11534 UNITED STATES v. KINCADE
FBI, must destroy the fingerprints of those who were wrongfully
arrested and booked, and were later released, would
today be greeted by reactions ranging from apathy to a disdainful
snigger. Why? Because we have come to accept that
people—even totally innocent people—have no legitimate
expectation of privacy in their fingerprints, and that’s that.
Judge Gould commendably recognizes the troubling implications
of using Kincade’s status today to extract his DNA for
use after he ceases to be on supervised release, but leaves for
another day whether Kincade might be entitled to have his
DNA removed from CODIS once his status changes. Had the
government sought to justify the extraction of the DNA as a
measure for ensuring Kincade’s compliance with the terms of
his supervised release, I would be tempted to agree with
Judge Gould. But the government did no such thing. Kincade’s
probation officer did not seek to have Kincade’s DNA
extracted to better supervise him—blood extraction for DNA
typing purposes was not an explicit probation condition, nor
was there any showing that the probation officer had determined
that extracting Kincade’s blood and typing his DNA
was necessary or desirable to improve his chances of successfully
completing probation. The record clearly shows that the
probation officer ordered Kincade to submit a blood sample
only to comply with the DNA Act. The government thus
seeks to justify the blood extraction precisely so his DNA will
be available in the CODIS database for the rest of his life.
The plurality enthusiastically accepts this justification and
thus has already answered the question Judge Gould would
keep in reserve. As a practical matter, moreover, the chance
that Kincade could have his DNA removed from the CODIS
database once he completes his supervised release is about the
same as the chance that someone arrested and fingerprinted,
but eventually found innocent, could force the FBI to delete
his fingerprints from its database, namely nil. While I sympathize
with Judge Gould’s reluctance to speak on an issue that
might be better resolved later, on this record we have no
11535 UNITED STATES v. KINCADE
choice: The extraction of Kincade’s blood for DNA typing
must be justified on the ambitious grounds advanced by the
government and accepted by the plurality, or not at all. For
the reasons eloquently expressed by Judge Reinhardt in his
dissent, and those stated above, I cannot agree that the suspicionless
extraction of blood to include Kincade’s DNA in the
CODIS database can be upheld under the Fourth Amendment.
The time to put the cork back in the brass bottle is now—
before the genie escapes |
