what about privacy

Posted October 13, 2022 by Andrew Wendel

"The Iowa Supreme Court's decision will be significant in determining how much privacy protection DNA needs."

In February 2001, scientists for the first time announced that they had finished a working draft of the human genome.[1] It was, and still is, considered one of the greatest scientific achievements in history.[2] One of the goals of the Human Genome Project was for its results to be accessible to the public so that research could be built upon it.[3] This accessibility spurred research which impacted various disciplines, such as medicine, biology, and epidemiology.[4] It has also spurred the development of the direct-to-consumer DNA testing market which now has millions of DNA profiles uploaded to their databases.[5] These databases, intended to be used for at-home genealogy, have now been used for forensic genealogy[6]—a relatively new police investigative technique. This technique brings to light a major question that lawyers and geneticists have been asking: how much privacy does our DNA need?

DNA testing has been the source of legal controversy before, namely in Maryland v. King.[7] In King, the Supreme Court considered the amount of privacy a person’s DNA should be afforded.[8] The Court held that the collection of DNA samples from those who have been arrested for “serious offenses” can have their DNA taken without a warrant, probable cause, or reasonable suspicion because the government interest in identifying the individual, and therefore ensuring it has the correct individual, was far greater than this minimally intrusive search.[9] In the dissent, Justice Scalia noted that DNA poses a far greater power than just identity,[10] explaining that DNA may offer police a way to investigate cold cases.[11] Justice Scalia’s argument is premised on the fact that since the use of the DNA in criminal cases has an investigative purpose, such a use requires a warrant so it does not violate an individual’s Fourth Amendment rights.[12] At the time, some geneticists and organizations were alarmed by the King decision.[13] However, some noted that the DNA technology available to the police at the time really did not reveal sensitive information.[14] These stances differed around whether identity should be considered sensitive information at all, with DNA being a potential source of identity.[15] What King did not answer is to what extent do individuals have a privacy interest in their DNA and the information their DNA contains. To answer that question, the Court may begin to look at a trespass theory.

In Carpenter v. United States, the Court was faced with another privacy question, this one about cell phones. Justice Gorsuch’s dissent has become the source of a textual theory behind Fourth Amendment protections. Justice Gorsuch opined that the current Fourth Amendment jurisprudence has caused courts to lose focus of the plain language of the Fourth Amendment.[16] Justice Gorsuch’s dissent very much relied on a “trespass theory” of Fourth Amendment jurisprudence, arguing that any sort of trespass on an individual’s “house, person, papers, or effects” would constitute a violation of that privacy right.[17] Interestingly, Justice Gorsuch explicitly stated direct-to-consumer DNA databases, like 23andMe, may not have as high degree of an expectation of privacy like most people would believe.[18] This dissent’s emphasis in the plain text of the Fourth Amendment has caused some scholars to believe that arguing that DNA is always a part of the “person,” regardless of whether it was shed or purposefully taken, would afford it a higher degree of protection; therefore, a greater right to privacy in DNA.[19]

In State v. Burns, the Iowa Supreme Court recently grappled with the question about whether DNA could be abandoned, essentially having to answer how much privacy DNA requires. The case was about the murder of Michelle Martinko who was killed in December 1979.[20] The case almost immediately went cold,[21] and in May 2018, a cold case detective, with the help of genetics consulting company Parabon NanoLabsegan to conduct a forensic genealogy investigation.[22] The investigation was based on a DNA profile developed from blood, known not to be the victim’s, that was found on Martinko’s dress from the night she was killed.[23] The profile was then uploaded to GEDMatch, a third party database where “[a]nyone can upload their DNA file, analyze results, and compare DNA shared with others.”[24]There was a match to a distant cousin[25] and the detective narrowed the criminal profile down to three brothers.[26] A team of investigators followed each of the brothers, one of whom was Jerry Burns. [27]  While following Burns to a Pizza Ranch, the investigators watched him eat his meal, drink from his straw, and then leave.[28] The investigators collected the straw on the basis that it was abandoned.[29] Subsequent testing revealed that that DNA profile belonging to the man from the restaurant was consistent with the crime scene profile.[30] Based on this evidence, in December 2018, police arrested and charged Jerry Burns with Michelle Martinko’s murder.[31]

The Iowa Supreme Court's decision will be significant in determining how much privacy protection DNA needs. Attorney Nathan Wessler for the ACLU argued what some scholars have believed courts would adopt that, after Carpenter,[32] DNA cannot be abandoned, and that this DNA was still part of Burns’ person.[33] Therefore, any search of a person’s DNA would require a search warrant.[34]

Scholars have pointed out that this property-style argument could be used in the DNA privacy context;[35]however, at oral arguments, it did not seem that many of the justices were buying into this argument. For example, Justice May asked Wessler whether the Framers would really believe that every cell ever shed by a person would count as their person under the Fourth Amendment.[36] Attorney Wessler responded by saying that advancements in technology may require the Court to adopt a rule that the Framers could not conceive, while still using the principles they set forth.[37]Although the Iowa Supreme Court seems unlikely to adopt this trespass theory in this case, Wessler’s argument may represent the best argument that individuals may have in protecting their privacy rights in their DNA.

[1] Gina Kolata, Human Genome, Then and Now, N.Y. Times (Apr. 15, 2013),  (interviewing Dr. Eric Green, who was then the director of the National Human Genome Research Institute, where he stated that the purpose of sequencing the human genome was to “represent humanity.”).

[2] Id.

[3] How Did the Human Genome Project Make Science More Accessible?, Your Genome (July 21, 2021)

[4] Kolata, supra note 1.

[5] Scott Bowen & Muin J. Khoury, Consumer Genetic Testing Is Booming: But What Are the Benefits and Harms to Individuals and Populations?, CDC (June 12, 2018)

[6] See, e.g., Keith Allen et al., Police Used Free Genealogy Database to Track Golden State Killer Suspect, Investigator Says, CNN (Apr. 27, 2018, 2:25 PM). Forensic genealogy has been an investigative technique that made national news after the arrest of Joseph DiAngelo in the Golden State Killer case. Id. It generally consists of uploading a DNA profile into an open-sourced DNA database, like GEDmatch, and using those results to construct a family tree. Erin Jordan, Groundbreaking DNA Technology Helped Find Martinko Murder Suspect, Cedar Rapids Gazette (Dec. 21, 2018, 3:15 PM). The investigation then turns to historical records to narrow the list to potential suspects, ultimately ending in the identification of a few individuals to conduct a thorough investigation on. Id. In this case, that investigation ended with the collection and testing of Jerry Burns’ DNA to compare it to the crime scene DNA profile. Id.

[7] In Maryland v. King, Alonzo King was arrested in 2009 on assault charges. 569 U.S. 435, 441 (2013). The Maryland legislature passed the Maryland DNA Collection Act, which authorized Maryland police to collect the DNA of individuals who have been arrested for “crimes of violence.” This includes completed and attempted murder, rape, first-degree assault, kidnapping, arson, sexual assault, and other serious crimes. Id. at 444. Upon booking, the police collected King’s DNA with a buccal swab. Id.at 441. Four months later, King’s DNA was uploaded to the Maryland DNA database and it resulted in a match to an unsolved 2003 rape. Id. King would be subsequently convicted of the 2003 rape and was sentenced to life in prison without parole. Id. at 442. 

[8] See Maryland v. King, 569 U.S. 435, 442 (2013).

[9] Id. at 465.

[10] See id. at 473 (Scalia J., dissenting) (explaining how the identity rationale for the majority’s reasoning is incorrect because the identity of the individual must already be known to enter their sample into a DNA database, thus this evidence is much more powerful in solving cold cases rather than just ensuring the police have arrested the correct individual.).

[11] Id. at 466 (Scalia J., dissenting).

[12] Id. at 469 (“[B]oth the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong.”).

[13] Brief for the American Civil Liberties Union as Amicus Curiae at 5–6, Maryland v. King, 569 U.S. 435 (2013) (No. 12-207) (“In reality, the only reason the government is seizing DNA samples from arrestees is to connect them to unsolved crimes.”).

[14] Henry T. Greely & David H. Kaye, A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 54 Jurimetrics 43, 62 (2013) (“The Court should recognize that CODIS profiling is not the type of genetic testing that supplies significant information on disease risk or other physical or behavioral genetic traits.”).

[15] This argument is an unsettled area of law. The last notable case the Court had where it could have answered this question was in Schmerber v. California. In that case, the Court held that a forced blood draw from a person arrested on probable cause of driving under the influence did not violate the Fourth Amendment because there was “clear indication that in fact such evidence [incriminating evidence of blood alcohol level] will be found . . . .” 384 U.S. 757, 770 (1966). The court reasoned that the government interest was high in that case because the “destruction of evidence” occurred naturally as the blood circulated through the person’s body, naturally lowering his blood alcohol concentration and so the officer was justified in not obtaining a warrant prior to this search. Id. This interest outweighed the defendant’s interest in physical intrusion against his body since there was not a lot of pain or trauma involved. Id. at 771–2. Notably, the Court viewed the privacy interest more toward the physical intrusion into the body, rather than the defendant’s privacy right in his identity.

[16] Carpenter v. United States, 138 S. Ct. 2206, 2262 (2017) (Gorsuch J., dissenting) (explaining that various exceptions to the Fourth Amendment and relying on the reasonable expectation of privacy test has led to exceptions where most people actually would actually have an expectation of privacy, such as the storage of sensitive information on third-party online platforms).  

[17] Carpenter v. United States, 138 S. Ct. 2206, 2268–69 (2017) (Gorsuch J., dissenting) (“[T]he traditional approach [to determine if there was a Fourth Amendment violation] asked if a house, paper, or effect was yours under law.”). It should be noted that Justice Gorsuch outlined three options that the Court has to respond to the current Fourth Amendment jurisprudence confusion that exists in the lower courts. Id. The first would be to do nothing and “live with the consequences.” Id. the second is to overrule the cases that are causing confusion, such as Smith and Miller and “try again” still using the reasonable expectation of privacy test. Id. The third is to look at the plain language of the Fourth Amendment. Id.

[18] Id. at 2262 (“The problem isn’t with the Sixth Circuit’s application of Smith and Miller but with the cases themselves. Can the government . . . secure your DNA from 23andME without a warrant or probable cause? Smith and Miller say yes it can–at least without running afoul of [the reasonable expectation of privacy test].”

[19] E.g., Ayesha Rasheed, ‘Personal’ Property: Fourth Amendment Protection for Genetic Information, 23 J. Const. L. 547, 587–88 (2021) (“[DNA] should receive some of the strongest Fourth Amendment protections possible given their closeness to the enumerated Fourth Amendment categories of ‘persons,’ ‘houses,’ and ‘effects,’ . . . .”).

[20] Trish Mehaffey, Convicted of Michelle Martinko’s Murder, Manchester Man asks Iowa Supreme Court to Toss Case, Cedar Rapids Gazette (Sept. 30, 2022, 6:03 PM).

[21] Kat Russell, Cedar Rapids Police Make Murder Arrest in Michelle Martinko Cold Case, Cedar Rapids Gazette (Dec. 20, 2018, 1:08 PM), (“It has been 39 years to the day since teenager Michelle Martinko left a school choir banquet and drove her family’s 1972 Buick Electra to the Westdale Mall in search of a new winter coat. Early the next morning, police found the Kennedy high school senior stabbed to death in the Buick in a mall parking lot.”).

[22] Id.; Trish Mehaffey, Search Warrant Shows How Relative’s DNA Led Police to Manchester Man in Michelle Martinko’s Death, Cedar Rapids Gazette (Mar. 12, 2019, 4:46 PM).

[23] Trish Mehaffey, Jerry Burns sentenced to Life for Killing Michelle Martinko in 1979, Cedar Rapids Gazette (Aug. 7, 2020, 8:23 PM).

[24] GEDmatch, About GEDmatch, https://www.gedmatch.com/education/what-is-gedmatch/ [https://perma.cc/4JF8-FNMJ] (emphasis added).

[25] Trish Mehaffey, Search Warrant Shows How Relative’s DNA Led Police to Manchester Man in Michelle Martinko’s Death, Cedar Rapids Gazette (Mar. 12, 2019, 4:46 PM).

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31]  Erin Jordan, Groundbreaking DNA Technology Helped Find Martinko Murder Suspect, Cedar Rapids Gazette (Dec. 21, 2018, 3:15 PM).

[32] See, e.g., Rasheed, supra note 19; Antony Barone Kolenc, “23 And Plea”: Limiting Police Use of Genealogy Sites After Carpenter v. United States, 122 W. Va. L. Rev. 53, 78 (2019) (“Justice Gorsuch’s dissent in Carpenter offered ‘another way’ of re-envisioning the Court’s cases under Katz using the traditional property-based approach, recognizing that it might extend more rights than the historically inconsistent results of the ‘reasonable expectation of privacy’ approach.”); William C.G. Wright, The Building Blocks of Life: Cyber-Trespass, the Fourth Amendment, and Public Ancestry Databases, Minn. L. Rev. Blog (Apr. 2, 2020). (“In Jones v. United States, the Court relied on a property centric conception of the Fourth Amendment. Under the post-Jones framework, courts must first consider whether a law enforcement action was a trespass at common law.”).

[33] See Brief for the American Civil Liberties Union as Amicus Curiae at 27, State v. Burns, ___ N.W.2d (Iowa 2022) (No. 20-1150) (“[A]pplying the abandonment doctrine to permit warrantless extraction and sequencing of DNA that people unavoidably leave behind as they move through the would [not honor the purposes of the abandonment doctrine].”).

[34]See Trish Mehaffey, Convicted of Michelle Martinko’s Murder, Manchester Man Asks Iowa Supreme Court to Toss Case, Cedar Rapids Gazette (Sept. 30, 2022, 6:03 PM). It should also be noted that Appellant also argued that this violated Article I, § 8 of the Iowa Constitution which grants individuals under Iowa law a higher right of privacy than the Fourth Amendment. Final Brief for Appellant at 55–56, State v. Burns, ___ N.W.2d ___, (Iowa 2022). Attorneys for Burns argued that this section of the Iowa Constitution along with genetic privacy laws in Iowa show that Iowans have a higher expectation of privacy over their DNA than the United States Constitution affords them. Id. at 69–70.

[35] Rasheed, supra note 19.

[36] Iowa Courts, State v. Burns, YouTube, at 18:43-18:59 (Oct. 6, 2022).

[37] Id. at 18:59-19:27.

Photo courtesy of Olivia Sun, Des Moines Register, published in the Cedar Rapids Gazette.

Thursday, October 13, 2022