The Washington Supreme Court has ruled that police don’t need a warrant or permission from a suspect before collecting genetic evidence from saliva used to seal an envelope. The ACLU had urged the Court to consider the risks to personal privacy from abuses of this practice.
“Your genes describe the very essence of who you are, including details about your gender, family history, diseases, ethnicity and more,” said Doug Klunder, ACLU-WA Privacy Project director and author of the amicus brief. “Police should not be able to access this very private information without reasonable suspicion of wrongdoing.”
The court ruled 6-3 in the case of State v. Athan to permit the use of DNA evidence collected by Seattle Police from saliva in the glue flap of an envelope. In that case, Seattle detectives had sent a fake letter to John Athan, posing as lawyers involved in a class-action suit. Athan sent the letter back, and police matched DNA from his saliva to genetic evidence in a 1982 murder.
The Supreme Court ruled that saliva collected in this way was legal, because police did not force a person or invade his or her body to collect it. In its decision, the court found that people give up their expectations of privacy when they lick an envelope, even if it was sent under false conditions.
In an amicus brief, the ACLU said that the Washington Constitution prevents police from arbitrarily collecting and analyzing the DNA of people. The ACLU brief asserted that people do not give up ownership of their DNA and their rights to privacy simply by licking an envelope or using a tissue.
“There is no expectation ... that the envelope is going to be delivered to a DNA lab, and subjected to biotechnological procedures, using expensive and advanced equipment, to extract DNA samples,” Klunder wrote.
The ACLU brief pointed out that DNA collected outside of a crime scene offers unique risks to personal privacy. Unlike a fingerprint, police analysis of this DNA goes far beyond identification purposes, disclosing detailed personal and family genetic information. Allowing police to collect this DNA arbitrarily would expose this information to scrutiny and create a permanent record, without a valid reason.
A dissenting opinion by Justice Mary E. Fairhurst agreed.
“The majority’s conclusion that Athan has no privacy interest in his saliva, and its complete indifference to his privacy interest in his DNA, are indefensible in light of this court’s long history acknowledging privacy interests in the body and bodily functions,” Fairhurst wrote. “Because Athan’s DNA provided the government with vast amounts of intimate information beyond mere identity, I would conclude that Athan has privacy interests in his saliva and his DNA.”