{"id":7029,"date":"2012-04-26T03:46:46","date_gmt":"2012-04-26T03:46:46","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-04-26T03:46:46","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7029","title":{"rendered":"New Law Review article: “A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases”"},"content":{"rendered":"

New Law Review article: A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases<\/a> by David H. Kaye on SSRN. Abstract:<\/p>\n

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted \u2014 and even those who are merely arrested \u2014 have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the constitutionality of databases of biometric data. It demonstrates that the opinions on DNA collection before conviction have lost sight of the foundations of balancing tests in Fourth Amendment analysis. It argues that balancing is acceptable only for \u201cspecial needs\u201d or \u201cadministrative search\u201d cases, or for defining new exceptions to the warrant requirement of the Fourth Amendment. The Article examines how DNA collection before conviction might be brought under the traditional special-needs doctrine and how it might fit within a new, but coherent exception for certain forms of biometric data. This framework permits the courts to analyze DNA databases without diluting the protections guaranteed by the Fourth Amendment, and it provides a sound rationale for the current law on arrestee fingerprinting. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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