{"id":5946,"date":"2011-12-28T17:29:39","date_gmt":"2011-08-27T00:54:03","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-08-27T00:54:03","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=5946","title":{"rendered":"MA: Consent to take DNA was conditioned on its return if no match; since there wasn’t, plaintiff stated a claim"},"content":{"rendered":"

Plaintiff voluntarily gave his DNA to be checked against a possible crime under the promise that it would be returned if there was no match. There wasn\u2019t, but the DA and crime lab refused to return it. He had limited his consent, and he had an invasion of privacy suit for retention of the DNA. Amato v. District Attorney for the Cape and Islands District<\/a>, 80 Mass. App. Ct. 230, 952 N.E.2d 400 (2011):<\/p>\n

DNA information is highly sensitive. Citizens have a reasonable expectation of privacy in such information. See Landry v. Attorney Gen., 429 Mass. 336, 354 n.20, 709 N.E.2d 1085 (1999), cert. denied, 528 U.S. 1073, 120 S. Ct. 785, 145 L. Ed. 2d 663 (2000) (upholding State convicted offender database created by G. L. c. 22E as constitutional; however, “the indefinite storage of the entire DNA sample … creates some concern that the samples could be misused at some point in the future to search for and disclose private genetic information” [emphasis added]).20 See also Horsemen’s Benevolent & Protective Assn. v. State Racing Commn., 403 Mass. at 700 (discussing sensitive information discoverable through urinalysis); Commonwealth v. Cabral, 69 Mass. App. Ct. at 72, and cases cited. Amato has pleaded that the defendants continue to hold this highly sensitive information beyond the scope of the limited consent he gave at the time he provided the sample. Contrast O’Connor v. Police Commr. of Boston, 408 Mass. 324, 329-331, 557 N.E.2d 1146 (1990). Amato has also pleaded that the defendants’ retention of up to 200 DNA profiles constitutes a shadow DNA database, with its constituent records available for disclosure by comparison in other criminal investigations.<\/p>\n

The allegations that the defendants have retained Amato’s highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato’s privacy. These allegations therefore suffice to state a G. L. c. 214, \u00a7 1B, claim.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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