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June 16, 2019

The NYPD’s new DNA dragnet: The department is collecting and storing genetic information, with virtually no rules to curb their use

February 9, 2019
No privacy. (iStock)

If you think clandestine DNA dragnets and secret databases are things of science fiction, I have some upsetting news.

From the same law enforcement playbook that brought you stop-and-frisk comes the latest form of racial profiling and policing: the knock-and-spit. We’ve learned that NYPD officers are willing to knock on doors to take New Yorkers’ DNA, whether by “consent” or at the precinct by offering people a cigarette or drink to collect their spit. And once again, as the city’s primary public defenders, we see this latest law enforcement sweep is happening mainly to New Yorkers of color.

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Take as an extreme example the police investigation of the Howard Beach jogger case. Before they identified a suspect, the NYPD collected well over 500 DNA profiles from men in the East New York area. Imagine police knocking on doors, in uniform, with a cheek swab in hand, asking residents to prove they didn’t kill the jogger in the nearby park.

They were willing to do it in East New York. Do you think this would happen on Park Ave.? In Park Slope? Not likely.

But things get worse from there. For those people excluded from the jogger case, the Office of the Chief Medical Examiner, the city’s crime lab, permanently keeps those profiles in their databank and routinely compares profiles to all city crimes.

As of 2017, the OCME had more than 64,000 profiles, stored regardless of whether they were identified as a suspect or cleared. Based on the lab’s claim that state laws are ambiguous and city laws are silent, the lab feels justified to invent their own rules about how this information is used.

And so, those 500 people who “chose” to cooperate with police may never know that they, and possibly their close relatives via familial searching, will be routinely compared to DNA samples from every rape, murder and violent crime in town. In this respect, they will be treated just like someone convicted of a crime.

Maybe none of this bothers you. A common refrain from law enforcement goes, if you don’t commit crimes, you needn’t worry. But innocent people have legitimate cause for concern because DNA has unparalleled power to wrongly accuse. Genetic testing can now reveal a profile based on a few cells, and we shed hundreds of thousands of cells a day. Your DNA can show up in places you’ve never been.

Consider Lukis Anderson, whose DNA was discovered under a murdered billionaire’s fingernails. Luckily, Anderson’s attorney discovered he was dead drunk in the hospital at the time and couldn’t possibly be the killer. How did his DNA get there? The authorities figure the same paramedics treated each man that night and inadvertently transferred Anderson’s DNA to the dead man. Anderson was facing a death sentence for seven months before he was cleared in 2013.

You might also take a cue from the police themselves. Under their labor contract with the city, rank-and-file officers don’t give the lab their DNA, which means the lab can’t easily rule out possible crime-scene contamination. This means that the officers knocking on doors ask people to volunteer to do what they won’t.

Basic privacy is another genuine worry. We see every day how our personal information, once set loose upon the internet, can never be recaptured. The past few years have heralded incredible expansions of the uses of DNA. Now imagine what will be possible in 30 years.

The mayor proudly considers the demise of stop-and-frisk a shining example of the city’s equality in law enforcement. It has been replaced by something arguably worse. We must stop the profiling, illegal storing and rogue searching that target people of color all over again.

Lewis is staff attorney with the DNA Unit at The Legal Aid Society.

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