Legality of DNA collection

Are there any laws that restrict the collection of DNA samples from individuals without their knowledge? Let’s assume for the sake of this discussion that I had a method of collecting that was by itself not illegal (ie, not jabbing them with a needle). For example, if I run a restaurant, could I collect samples from all of the dirty dishes?

IANAL but I know ofa famous casethat said that a person does not have any right to the use of their medical waste so that the doctors made millions while the patient got nothing. I wonder if that legal theory also applies to discarded DNA samples.

A lot of jurisdictions, especially outside the USA -i.e. Europe, Canada - have privacy laws. These may forbid you from collecting or retaining personal information (name, address, phone number, credit cards, etc.) without consent, or without notifying them of your data retention policy. I haven’t seen anything about DNA falling in that category, but why wouldn’t it? What information would be more personal?

There’s a bit of a row going on right now about what some think is a shady way to collect DNA: police in California suspected a man named Thomas of a series of burglaries. DNA evidence had been collected from the break-ins, but they needed a sample from him for comparison. One night the police pulled him over for a suspected DWI. They asked him to blow into a portable breathalyzer, which he did, and the police kept the disposable mouthpiece, which had a tiny bit of his saliva on it.

The courts have ruled that he performed the breath test voluntarily and, since he did not ask for the mouthpiece or ask what they intended to do with it, he surrendered his right to privacy in the saliva. This pretty well follows the prevailing rule that anything you voluntarily discard is fair game for the police to investigate.

Even if he did, would the cops have to give it back to him? From the Moore case I cited above

Would it be fair to say that Moore extends to all “discarded” cells and not just medical waste?

And yes I know it is a California case but if one had a federal right to one’s dicarded cells the why didn’t Moore end up in SCOTUS?

Moore sought certiori with the U.S. Supreme Court, but that court declined to accept the appeal.

The case that Max Torque cites relates to the admissibility of DNA samples at trial, and other cases deal with whether people can be compelled to provide a DNA sample (such as whether police can take a DNA sample when a person is arrested).

Moore’s case deals with private collection of genetic material, but it was a collection that he knew about. It was the commercial exploitation afterwards that he objected to. What I’m really curious about is the collection of a sample that the individual doesn’t consent to.

But under fraudulent pretense.

I thought I covered that with “the prevailing rule that anything you voluntarily discard is fair game for the police to investigate.” You can follow them around and snatch the gum they throw in the trash can, pick up their used Kleenex, ask to borrow their Chapstick and swipe it on a piece of paper, whatever. So far the courts have decided that as long as someone hands it to you or discards it, you’re free to run DNA tests on it. Sending your dishes back to the kitchen would qualify, although I’d go with drinking glasses; people tend to have more contact with the rim of their glass than their plate.

I can’t think of a way to actively seize an involuntary sample from a person that wouldn’t intrude upon their rights. It’s usually just easier to wait for the person to throw something away.

As an example, Texas serial killer Faryion Waldrip was caught after a plainclothes investigator walked up to him and asked him if he could have the paper cup Waldrip had just finished drinking from to use as a spit cup. Waldrip gave it to him, and the DNA retrieved from the cup connected Waldrip to the murder of several women.

They can also convict someone on DNA evidence collected from a close relative. They don’t even have to trick it out of the suspect. The “Grim Sleeper” serial killer in L.A. was caught based on DNA provided by his son.

There is a patent application for a device that does just that. I have no idea if it actually works, but it describes a method for passively collecting samples of sweat, loose skin cells, or loose hair. I won’t get into the mechanics of how they do this, but the system would presumably be set up at the entrance of a secure location, and the idea is that it would collect DNA to help identify an intruder. I have no doubt that capturing DNA from a burglar would be permissible under the law.

But if such a device actually works – a passive DNA collection system – then in theory the police could set it up at the airport or outside a shopping mall or on a bust street, and collect samples from every single person who passes by.

Watch the movie Gattaca, where the societal obsession is with perfect genes. People are routinely tested by their employer, prospective girlfriends, etc. with surreptitious DNA collection. Employers routinely vaccuumed work keyboards for loose hair and skin samples, and in one scene some girlfriends have their lips swabbed in the ladies room after kissing their guys.

The question is, “what for”?

If the police system is going to create a database and assign officers to randomly populate it with samples rather than doing regular law enforcement, or spend money on analyzing samples not specifically related to an investigation, I suspect the relevant government would like to know the purpose, plan, budget, etc of this database.*

If a random person just wants to get a surreptitious sample - i.e. to see if so-and-so is their father/child/lost relative without talking to them - there are probably ways. As mentioned above, the legality of a discarded sample is pretty well established.

If a biological/pharmaceutical company or a whacko millionaire decided to start collecting random samples to build a database, then they likely fall under the privacy laws same as financial or medical information. If the sampel can be at all likely traced back to a person, there are likely permission and notification reuirements.

*There was a Law and Order episode that hinged on whether using a DNA test to find relatives was a legal process. If I identify that Sam is related to the perp, is that enough grounds to have all of Sam’s relations tested? Or even single out the one with the record as the likely suspect? IIRC, the case was a missing child. The child’s DNA closely matched someone, and they assumed the someone’s convict son (one of 5 sons) was the father of the child and therefore responsible for its abduction. The defense said this was too big a leap to warrant anytihng intrusive like a DNA test.

There was just a Time magazine article about this case. They did not convict the suspect based on the relative’s DNA - they were able to identify the suspect through the use of the relative’s DNA.
Once the suspect was identified, they followed him around and waited for him to discard something with his DNA on it. They then matched his (not his relative’s) DNA with the DNA they’d collected off some of the victims, and that was what they used to convict him. So the relative’s DNA was only used to identify the suspect - it was not enough to convict the suspect.

This use of the relative’s DNA is pretty controversial (the relative had been incarcerated, so they had been able to obtain his DNA as part of that procedure), and raises all sorts of privacy issues. Only a few states allow this technique of using a relative’s DNA to identify a suspect - and even then it is only when they are stuck (have no other leads).

Yes, notice they “followed him around”. Obviously, either they were denied a warrant for a DNA sample based on matching relative, or they did feel confident they could and did not even ask.

Still, there are privacy concerns. When the FBI of all people can arrest someone based on a blatantly incorrect fingerprint match (an Oregon citizen, for the Barcelona bombings) what are the odds that a lab mixup or some other stupid DNA coincidence will bring the unwarranted (sorry) wrath of the state down on an innocent person? How close a match does it have to be to justify singling out a previously unsuspected person? etc… There’s a reason it’s called “partial” match.

Most (all?) towns have laws that anything thrown in the garbage is considered abandoned and okay for the taking. I’ve read quite a few mystery novels where the police give the suspect some coffee, let the person throw it away, and then use it for DNA/fingerprint evidence.

Of course my favorite was the Hercules Poirot story where he hands the suspect a shiny blank white card and says “the victim had one of these in his pocket when he died. Do you recognize it?” The suspect handles it, hands it back, and Hercules puts it into his wallet, then gets the fingerprints off it.