How the NYPD’s Rogue DNA Database Ensnares Innocent New Yorkers

By: Beth Haroules Director of Disability Justice Litigation, Legal Department & Simon McCormack Editorial Manager, Communications

An NYPD officer brings in someone they suspect of committing a crime – though they likely don’t have enough evidence to charge them with anything. The officer holds them in detention for many hours before bringing them into an interrogation room.

This room has been set up by the NYPD to make it easier for officers to surreptitiously collect the interviewee’s DNA. The officer then offers the interviewee a can of soda, hoping they will pick it up. If they don’t, officers repeatedly offer them a drink until they take the bait.

The officer then concludes the interview as soon as the person finishes the soda. Officers then lead out the interviewee in handcuffs so they can’t discard the can, cup, or bottle. Then the officer goes back in the room to obtain the container, specifically to extract the unavoidably shed DNA.

This might sound like an episode from a true crime TV show. But in reality, scenes similar to this one have played out thousands of times in New York City. Over more than a decade, the NYPD has collected the genetic material of 34,000 people – generally without their consent – in its “Suspect DNA Index.” The people ensnared in this database are often innocent, never charged with or convicted of a crime. Some in the database have been exonerated by a court for a crime they didn’t commit. Sometimes they are the survivors of crime or the relatives of victims. Many times, they are children, and disproportionately they are New Yorkers of color.

Tens of thousands of New Yorkers have their sensitive genetic material sitting in a rogue, illegal, and unaccountable database that serves as a constant reminder of how little the NYPD cares about our privacy or due process.

In a recent amicus brief filed in support of a Legal Aid Society lawsuit targeting the database, the NYCLU, ACLU and the Cato Institute argue that the massive “Suspect DNA Index” violates state law. Our brief also emphasizes that DNA contains a person’s highly sensitive and private information, and that the DNA people inevitably leave on items they discard can’t be seized, searched, or stored by the NYPD without a warrant.

The NYPD’s database is unlawful because, under state statute, only New York State’s DNA database – which only includes people convicted of crimes – is authorized under New York law. The NYPD’s rogue database operates entirely outside of the scope of state law, and the NYPD is thumbing its nose at state protections every day its database is up and running.

The regulations around the state’s database are critical because of the very sensitive nature of DNA. A DNA sample can reveal sensitive medical details, ancestry, and biological relationships. It can expose whether a person is likely to develop Alzheimer’s, breast cancer, or Huntington’s disease. And with every passing year, technology to analyze DNA gets more advanced. There’s no telling what DNA profiles will reveal about us in the future.

With every lost hair, licked envelope, used cup, and drifting flake of dandruff, people unavoidably and involuntarily deposit a copy of their genetic blueprint. The NYPD is eager to get its hands on as many of those revealing profiles as it can. Once those blueprints are in their clutches, officers can search the ever-growing database continuously, without any oversight from courts or the state, or consent from the people whose profiles the NYPD has swallowed up.

Because of how sensitive and revealing DNA is, courts – including the Supreme Court – have put various restrictions on when law enforcement can collect, store, and search profiles. We argue in our brief that the NYPD needs to have probable cause – and a warrant – before it can do any of those things.

The NYPD wants us to believe that we can trust it with tens of thousands of people’s highly revealing personal genetic information without any outside oversight, rules, or due process. There is nothing in the Department’s lengthy, checkered past that should make us comfortable allowing the NYPD to operate its lawless database in the shadows.

• Amicus Brief

This piece was originally published on nyclu.org