BILL ANALYSIS �
AB 1697
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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.
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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).)
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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
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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
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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
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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
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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
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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
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