BILL ANALYSIS Ó AB 1697 Page 1 Date of Hearing: March 25, 2014 Counsel: Shaun Naidu ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 1697 (Donnelly) - As Amended: March 20, 2014 SUMMARY : Prohibits the Department of Justice (DOJ), local public laboratories, and DOJ's third-party partners from using DNA sequence data for purposes of identifying or characterizing any general correlation between sequence-specific information and behaviors, health, or ethnicity, as specified. Specifically, this bill : 1)Makes legislatives findings and declarations that the U.S. Supreme Court upheld the authority of the government to collect and analyze DNA from individuals arrested for a crime, regardless of whether the person is ultimately convicted; that the U.S. Court of Appeals for the Ninth Circuit upheld the authority of the government to retain DNA samples indefinitely; that DOJ maintains indefinite access to more than 1.8 million DNA samples; that recent research indicates that more than one-half of the variance in antisocial behavior can be attributed to genetic factors, and the ability of this research to identify likely criminals and potential criminals will increase dramatically as researchers gain the means to track the interaction of thousands of gene variants across millions of samples and correlate these results with known criminal behaviors; and that the ability to perform this analysis is increasingly within reach, as the cost of whole-genome sequencing has decreased more than 9,000 fold over the past 10 years. 2)Provides, for the purposes of the DNA and Forensic Identification Database and Data Bank Act (the Act), the terms "research" and "statistical analysis of populations" do not include the use of DNA sequence data for purposes of identifying or characterizing any general correlations between sequence-specific information and behaviors, health, or ethnicity. States that this type of research or statistical analysis of populations does not serve a forensic purpose. AB 1697 Page 2 3)Provides that anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control are subject to the above provision. 4)Provides that subject to the provision above (#2), it is not a violation of law for the DOJ DNA Laboratory, or an organization retained as an agent of DOJ, or a local public laboratory to use anonymous records or criminal history information obtained pursuant to the Act for training, research, statistical analysis of populations, or quality assurance or quality control. 5)Provides that subject to the provision above (#2), nothing in the Act prohibits DOJ from the sharing or disseminating of population database or data bank information, DNA profile or forensic identification database or data bank information, analytical data and results generated for forensic identification database and data bank purposes, or protocol and forensic DNA analysis methods and quality assurance or quality control procedures with any third party that DOJ deems necessary to assist DOJ's crime laboratory with statistical analyses of population databases, or the analyses of forensic protocol, research methods, or quality control procedures, or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons. EXISTING LAW : 1)Provides that DOJ, through its DNA Laboratory, is responsible for the management and administration of the state's DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state's participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Pen. Code, § 295, subd. (g).) 2)Provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes. (Pen. Code, § 295.1, subds. (a) & (b).) AB 1697 Page 3 3)Provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following: a) Forensic casework and forensic unknowns. b) Known and evidentiary specimens and samples from crime scenes or criminal investigations. c) Missing or unidentified persons. d) Persons required to provide specimens, samples, and print impressions. e) Legally obtained samples. f) Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. 4)Requires the following persons to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis: a) Any person, including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense (or attempt thereof), or is found not guilty by reason of insanity of any felony offense (or attempt thereof), or any juvenile who is adjudicated a ward of the juvenile court, as specified, for committing any felony offense (or attempt thereof). b) Any adult person who is arrested for or charged with any felony offense (or attempt thereof). c) Any person, including any juvenile, who is required to register under the sex offender or arson registries because of the commission of, or the attempt to commit, a felony or misdemeanor offense, or any person, including any juvenile, who is housed in a mental health facility or sex offender treatment program after referral to such facility or AB 1697 Page 4 program by a court after being charged with any felony offense (or attempt thereof). (Pen. Code, § 296.) 5)States that all DNA and forensic identification profiles and other identification information retained by DOJ pursuant to the Act are exempt from any law requiring disclosure of information to the public and are confidential except as otherwise provided in the Act. 6)Provides that, except to the defense counsel, upon court order, of a defendant whose DNA and other forensic identification information were developed pursuant to the Act, DOJ and local public DNA laboratories shall not otherwise be compelled in a criminal or civil proceeding to provide any DNA profile or forensic identification database or data bank information or its computer database program software or structures to any person or party seeking such records or information whether by subpoena, discovery, or other procedural device or inquiry. (Pen. Code, § 299.5, subd. (h).) 7)Punishes as an alternate misdemeanor/felony any person who knowingly uses an offender specimen, sample, or DNA profile collected pursuant to the Act for other than criminal identification or exclusion purposes, or for other than the identification of missing persons, or who knowingly discloses DNA or other forensic identification information developed as specified to an unauthorized individual or agency, for other than criminal identification or exclusion purposes, or for the identification of missing persons, by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code, § 299.5, subd. (i)(1)(A).) 8)Specifies that it is not a violation of the above provision for the DOJ DNA Laboratory, or an organization retained as a DOJ agent, or a local public laboratory to use anonymous records or criminal history information obtained pursuant to the Act for training, research, statistical analysis of populations, quality assurance, or quality control. (Pen. Code, § 299.5, subd. (m).) 9)Provides that the Act does not prohibit DOJ, in its sole discretion, from the sharing or disseminating of population database or data bank information, DNA profile or forensic AB 1697 Page 5 identification database or data bank information, analytical data and results generated for forensic identification database and data bank purposes, or protocol and forensic DNA analysis methods and quality assurance or quality control procedures with any third party that DOJ deems necessary to assist the department's crime laboratory with statistical analyses of population databases, or the analyses of forensic protocol, research methods, or quality control procedures, or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons. (Pen. Code, § 299.6, subd. (a)(5).) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "As the cost of DNA sequencing decreases and the ability to process large amounts of data increases, the state will have unprecedented ability to link genetics with criminal activity. While this may sound like the movie Minority Report, it is no longer science fiction. Your most private information about who you are isn't even safe from the government anymore. "For crime purposes, it is beneficial for the State to identify perpetrators; however, if the government wants to conduct research on our highly personal genetic makeup, they need our permission. These are the standards that govern research at our universities; we should hold the Department of Justice to those same basic ethical standards." 2)Background : In 1998, the Legislature enacted the DNA and Forensic Identification Database and Data Bank Act of 1998, which enhanced statewide biological identifying data collection by establishing a database within DOJ to house DNA and forensic identifying material to "assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children." (Pen. Code, § 295, subd. (c).) Among other AB 1697 Page 6 things, the Act expanded the list of crimes, upon the conviction of which, required an individual to provide blood specimens and a saliva sample for DNA and genetic analysis. The samples, collected by the California Department of Corrections and Rehabilitation, the Department of Youth Authority, and local jails, were submitted to DOJ for analysis and storage in the statewide DNA data bank and compared to DNA evidence collected from crime scenes for possible matches. The DNA profiles also are submitted to the Combined DNA Index System (CODIS) maintained by the FBI. (Pen. Code, § 295, subd. (g).) CODIS connects DNA laboratories at the local, state, and national levels and standardizes the points of comparison used in DNA analysis. (Ibid.) In 2004, voters amended the Act with the passage of Proposition 69, the "DNA Fingerprint, Unsolved Crime and Innocence Protection Act." Proposition 69, upon enactment of the measure, required that DNA collection be expanded to include adults and juveniles convicted of any felony offense; adults and juveniles convicted of any sex offense; adults arrested for or charged with felony sex offenses, murder, voluntary manslaughter, or the attempt of these crimes. (Pen. Code, § 296, subd. (a).) Starting in 2009, Proposition 69 required the DNA collection of all adults arrested for or charged with (as opposed to only those convicted of) any felony offense. (Ibid.) Moreover, in addition to the biological samples already required to be provided under then-existing law, Proposition 69 mandated that those individuals specified above also provide buccal swab samples, right thumbprints, and a full palm print impression of each hand. (Ibid.) 3)Maryland v. King : In Maryland v. King (2013) 133 S.Ct. 1958, the U.S. Supreme Court examined the constitutionality of law enforcement collecting and analyzing cheek swab DNA of arrestees of serious offenses. In this case, Alonzo King was arrested on first- and second-degree assault charges and during the detention booking process was administered a routine, warrantless buccal swab pursuant to applicable Maryland law. (Id. at p. 1965.) The DNA sample taken from King was found to match the DNA of a rape suspect taken from the victim. King consequently was tried for and convicted of the rape. (Ibid.) Overturning, the Maryland high court's decision that the taking of King's DNA by a buccal swab was an unconstitutional search, the U.S. Supreme Court held that when AB 1697 Page 7 law enforcement officers make an arrest, supported by probable cause, for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. (Id. at p. 1958.) The Court found that because King already was in valid police custody before the search, the need for a warrant was diminished greatly, and the standard to determine the constitutionality of the warrantless search was reasonableness instead of individualized suspicion. In deciding the reasonableness of the search, the Court weighed "the degree to which [the search] intrudes upon an individual's privacy" against "the promotion of legitimate government interests." (King, at p. 1970 (internal citation omitted).) Here, the Court found that the government had a significant interest in a safe and accurate way to process and identify people and possessions taken into custody. (Id. at p. 1971.) Moreover the Court stated that, when probable cause exists to arrest a person and hold him in custody, DNA identification plays a crucial role in serving that interest. In considering the defendant's legitimate expectation of privacy, which is necessarily diminished when he is taken into custody, the Court found that the cheek swab, which involves a brief and minimal intrusion with virtually no risk, trauma, or pain, does not increase the indignity already present during the arrest and booking process. (Id. at p. 1977-78.) In balancing these and other factors, the Court found that the defendant's right to privacy here did not outweigh the government's legitimate interest, and, therefore, the buccal swap was a constitutional search. (Id. at p. 1980.) In his dissent, Justice Scalia, joined by three other justices, argued that, while the Court has permitted warrantless government searches without individualized (particular) suspicion in the past, it has never done so in cases where the primary purpose of the search was to detect evidence of ordinary criminal wrongdoing, as the Court has done in this case, but rather "only when a governmental purpose aside from crime-solving is at stake [does the Court] engage in the free-form 'reasonableness' inquiry." (King, supra, 133 S.Ct. at p. 1981-82 (dis. opn. of Scalia, J.).) Justice Scalia goes on to argue that the Court, in its discussion of the search serving to "identify" King, conflates AB 1697 Page 8 identification with ordinary law-enforcement aims, which requires individualized suspicion. (Id. at p. 1983.) 4)Argument in Support : Taxpayers for Improving Public Safety argues, "Due to advances in genome research, and unknown consequences of future research, it is of the utmost importance that the data collected by safety agencies remain confidential and used solely for the purpose intended, i.e., comparing DNA samples at a crime scene with that of the created data base. The DNA testing results should never be made available to insurance companies, to employers or to the public for any purpose. Even if there is a provision to allow consent, the consent will be a form of coercion in that a refusal to consent will create the presumption that the individual has something to hide. "By statutorily assuring that the DNA data base may be used solely for public safety purposes, the safety of personal data is assured. Today, the Yisraelis have perfected artificial creation of DNA which allows DNA to be altered to match a different individual. There is an effort to base insurance risk based upon genetic propensity for disease. The State should not allow unnecessary intrusion into the private lives of citizens in the name of public safety. By statutorily assuring that the DNA data base may be used solely for public safety purposes, the safety of personal data is assured." 5)Prior Legislation : AB 1371 (Yee), Chapter 397, Statutes of 2003, increased the standards for informed consent relating to participation in a medical experiment. REGISTERED SUPPORT / OPPOSITION : Support Taxpayers for Improving Public Safety Opposition None Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744 AB 1697 Page 9