June 5, 2003
DNA TESTING PROVISIONS IN PATRIOT ACT II
By: Susan Price-Livingston, Associate Attorney
You asked about federal and state laws regulating law enforcement agencies’ collection of DNA samples and how a proposed bill to expand the USA Patriot Act might affect them.
Congress and legislatures in all states have enacted laws authorizing law enforcement agencies to take blood or other tissue samples from people convicted of certain crimes. All jurisdictions require convicted sex offenders to submit DNA samples, and a majority also require this of people convicted of violent crimes, burglary, and drug offenses. OLR Report 2002-R-0984 compares Connecticut and other states’ laws. Forensic laboratories analyze the samples in accordance with federal quality control guidelines and create DNA profiles of offenders that they store in computer databases.
Section 503 of the federal USA Patriot Act requires DNA samples to be provided by people convicted of federal terrorism crimes, violent crimes, and attempts or conspiracies to commit them.
The Federal Bureau of Investigation (FBI) administers the Combined DNA Index System (CODIS), which enables federally certified crime labs to exchange and compare DNA profiles electronically. As of January 2003, it contained 1,266,351 offender profiles and 48,069 unidentified profiles collected at crime scenes. Federal and state laws require the FBI, U. S. Army, and 47 states participating in the national DNA database program to search their databases using CODIS software and report matches when law enforcement officials send samples and verify that the search is part of an official investigation.
Laboratory personnel who knowingly disseminate database information for purposes other than those authorized by law are subject to fines and jail time. People attempting to obtain DNA samples from the laboratory for an unauthorized purpose are also subject to prosecution. All jurisdictions have provisions requiring DNA profiles to be taken out of the database when convictions are overturned.
The Domestic Security Enhancement Act of 2003, also referred to as “Patriot II,” has not been formally introduced or officially proposed by the U. S. Justice Department, but a draft and section-by-section analysis has been widely circulated over the Internet (http: //www. publicintegrity. org/dtaweb/downloads/Story_01_020703_Doc_1. pdfadd) and reported in the media. The bill would not affect existing federal or state laws on DNA collection. It would allow the U. S. Attorney General to create separate terrorism identification databases that include DNA profiles. It would allow the FBI to collect and use DNA samples, fingerprints, and other identifying information from people suspected of terrorism and others who voluntarily submit samples and identifying information that may assist in the detection of terrorist activities. The bill has sections governing (1) definitions, (2) collection and use of the information, (3) database establishment, and (4) its effect on existing laws.
Major differences between the terrorist identification database authorized under the bill and the existing CODIS offender database are its (1) inclusion of profiles of suspected terrorists and other people who have not been convicted of covered crimes; (2) collection and sharing of DNA samples from and with sources other than criminal justice agencies, and (3) absence of provisions for expunging records or correcting errors.
Definitions (§ 304)
The bill defines “DNA sample” as a tissue, fluid, or other bodily sample of an individual on which a DNA analysis can be carried out. “DNA analysis” means analysis of the deoxyribonucleic acid (DNA) identification information in a bodily sample.
“Suspected terrorist” means any person as to whom the attorney general or secretary of defense, as appropriate, has determined that there is reason to believe:
1. has engaged in terrorism or has committed a terrorist offense as defined in federal laws, or has conspired or attempted to do so;
2. is an enemy combatant, a prisoner of war, or other battlefield detainee;
3. is a member of a INS-designated terrorist organization; or
4. is an alien inadmissible into the United States for security and related grounds or who is engaged in any other activity that endangers the national security of the United States.
Terrorism. Federal criminal statutes generally define international terrorism as acts transcending national boundaries or occurring primarily outside of the United States that (1) violate state or federal criminal laws and are dangerous to human life and (2) appear intended to intimidate or coerce a civilian population, influence government policy by intimidation or coercion, or affect government conduct by mass destruction, assassination, or kidnapping (18 USC § 2331(1)). The Patriot Act added a definition for “domestic terrorism,” for similar acts occurring primarily in this country (PL 107-56 § 808, codified at 18 USC § 2331(5)).
Federal law also has a separate offense, the “federal crime of terrorism. ” This is an offense that is calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct and is a violation one of 32 specific federal criminal statutes. Most of the laws specified involve acts against public officials, manufacture or use of biological and chemical weapons, computer crimes, acts against mass transportation systems, or harboring terrorists (18 USC § 2332b(g)(5)(b)).
Collection and Use of Identification Information from Suspected Terrorists and Other Sources (§ 302)
The bill authorizes the attorney general and any official or agency he designates to collect DNA samples, fingerprints, and other identification information from any suspected terrorist in custody of the attorney general, the U. S. Marshal Service, the Bureau of Prisons, or the Immigration and Naturalization Service (recently renamed the Bureau of Citizenship and Immigration Services). The attorney general can also require probation officers supervising federal probationers, parolees, and others on supervised release to collect such samples.
The secretary of defense and any other official or agency within the department is also authorized to collect samples from any suspected terrorist in their custody or being detained by them.
The bill authorizes the designated officials to use reasonable means to collect the DNA sample from any suspected terrorist who refuses to cooperate in the collection of the sample. Suspected terrorists who refuse to cooperate in the sample collection commit a class A misdemeanor. This offense is punishable by imprisonment for up to one year, a fine of up to $ 100,000, or both.
Collection or Receipt of Other Identification Information. The bill authorizes the attorney general, secretary of defense, or other designated official or agency to collect and receive, either directly or from another federal, state, local, or foreign government agency or “other appropriate source” DNA samples, fingerprints, and other identification information:
1. of any suspected terrorist, if he provided the sample voluntarily or it is lawfully acquired from any source;
2. recovered from the scene of terrorist activities, including unidentified human remains, or from any item that may have been handled by a suspected terrorist; and
3. of any person if he provided the sample voluntarily and it may assist in the investigation and identification of terrorists and the prevention of terrorism.
The bill does not specify when a sample is voluntarily provided. Critics of the bill fear that it could be used to obtain biological samples or genetic testing records from a suspect’s doctor or a hospital that treated him.
Analysis, Storage, and Maintenance of DNA Samples, Fingerprints, and Other Information. The bill permits the attorney general to analyze DNA samples, fingerprints, and other information collected or received as described above or lawfully acquired under any other source of law. The DNA analysis must be conducted in conformity with the FBI’s quality assurance standards issued under the Violent Crime Control and Law Enforcement Act of 1994 (42 USC § 14131).
Agreements with Other Entities Concerning DNA Samples. The bill authorizes the attorney general to enter into agreements with federal agencies, with state or local governments, or with private entities to assist in the collection, analysis, storage, or maintenance of the DNA samples.
Establishment of Database to Facilitate Investigation and Prevention of Terrorism (Sec. 303)
The bill authorizes the attorney general to establish one or more databases of DNA records, fingerprints, and other identification information that is (1) collected or received from suspected terrorists in federal custody or supervision, (2) obtained as a result of an analysis of samples provided from the other sources described above, or (3) similar, but was collected or received before the new law goes into effect.
Use of Information in Databases. The attorney general can use the information in the databases to detect, investigate, prosecute, prevent, or respond to terrorist activities or other criminal or unlawful activities by suspected terrorists. He may share the information with other federal, state, local, or foreign agencies only for these purposes. In addition, he can use and disclose the information for other purposes and to other entities and people to the extent permitted by law.
Database Searches. The bill authorizes the attorney general to search information in the terrorist identification databases against CODIS; the FBI’s Integrated Automated Fingerprint Identification System; other databases maintained by federal, state, or local law enforcement agencies; and other databases the attorney general deems appropriate. The attorney general may also authorize those maintaining these databases to search the FBI’s terrorist database.
Population Statistics Database. The bill authorizes DNA records maintained in these databases to be disclosed for quality control and protocol development purposes and for a population statistics database. Personally identifiable information must be removed before the records can be shared for these purposes.
Relation to Other Laws. The bill specifies that DNA samples, records, and other information may be used and disclosed in accordance with the bill’s terms, notwithstanding limitation of the use and disclosure mandated by the DNA Identification Act of 1994 (42 USC §§ 14131-14134), the DNA Analysis Backlog Elimination Act of 2000 (42 USC §§ 14135-14135e), or any other law. Those laws generally restrict records and record sharing to entities participating and certified by CODIS.
It specifies that the databases are systems of records, which are exempt from disclosure except under circumstances specified in § 552a(j)(2) of the federal Freedom of Information Act (FOIA). Among other things, the bill excludes the database from FOIA provisions that allow people to request copies of federal records and those giving people mentioned in such records opportunities to correct them or record their disagreement with material relating to them.
Existing Authorities (§ 305)
The bill specifies that the authorities it grants are in addition to any authorities that may exist under any other source of law. Nothing in the bill may be construed to preclude the receipt, collection, analysis, maintenance, or dissemination of evidence or information pursuant to any other source of law.