Friday, November 02, 2007

DNA abuse

The object of law is to protect individual rights -- in short it's to protect you from me, and me from you. The object of restraining legal force, over which governments have a monopoly, is to restrain law so it actually protects rights, instead of doing them over.

This is not a "balance" of rights, it's a line over which the government should not cross. It's a line of which the National Party are utterly unaware. Involuntarily taking and keeping the DNA of arrested people crosses that line. According to National's website, their proposed policy goes like this:
Take DNA from all convicted criminals.
DNA testing can make a huge contribution to solving crime by helping police target criminals committing most of the crime. At present, we add to the DNA database only samples from those convicted of offences generally attracting sentences of more than seven years. Under National, every person arrested will be DNA tested. If they are convicted, their DNA will be added to the database. If they are not charged or are acquitted, the sample will be destroyed. [Emphasis added.]
As you see, the headline is contradicted somewhat by the small print. You might also note that the policy is supported by the ACT Party, who went into the last election declaring "DNA is the modern fingerprint and should be used in the same way, eg. on arrest if police deem appropriate." These people have no conception of legal restraint. (As MikeE says, another reason to hate the Tories.)

'Not PC' says by all means take the DNA of people who have committed crimes against the individual rights of others and been convicted for it, but by no means should the police be given power to take it and keep it from those who have simply been held or arrested -- not unless they have volunteered permission. That is stepping over the line from protector to abuser -- it is the very reason good law respects the presumption of innocence.

The National Party has had the presumption of innocence doctrine in its sights for some time. Such a long-held cornerstone of liberty against state power should not be overturned so easily, or at all.

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26 Comments:

Blogger MikeE said...

How would this work with the BORA?

11/02/2007 10:19:00 am  
Anonymous Eddie said...

One can't help but think that National's reach towards authoritarianism has been enabled by a creeping hostility to civil liberties in the government.

11/02/2007 10:29:00 am  
Blogger Matt B said...

As you may know by now I am a libertarian and deeply skeptical of anything government does with other people's money, yet I struggle to see much risk to counterbalance the enormous benefits that a DNA database could bring.

The main argument against use of DNA is a slippery slope argument: "we should not let DNA be collected for all these useful things, because it might also be used for making nasty things too."

Does any technology, old or new, not carry potential for harm? Has society not developed the institutions that minimise or eliminate those risks while largely preserving the benefits of each technology? Of course it has. I don't see any reason to think DNA will buck this ubiquitous trend - but certainly open to suggestions.

11/02/2007 12:24:00 pm  
Blogger MikeE said...

Matt the issue is one of consent. In this situation the police are forcing something upon you before you have been convicted of any crime for very dubious reasons (oh noes! that pot smoker might also be a rapist!).

I think if it was post conviction, or with consent on violent crimes etc, that there wouldn't be much of an issue with it.

11/02/2007 01:56:00 pm  
Blogger Matt B said...

Mikee, but are suspects not required to give fingerprints prior to conviction? If we take, for the sake of argument, as given that the sole purpose for collecting DNA from a suspect is to do whatever it is fingerprints are used for (and by the way collecting DNA is almost trivially easy), then there is no further encroachment on the rights of the suspect - given the assumption above, in what sense is DNA more invasive than fingerprints? - and there is certainly an improvement in punishing crime.

11/02/2007 02:23:00 pm  
Blogger Elijah Lineberry said...

Matt,

Let's have a law requiring everyone to own a pet horse.

I struggle to see much risk to counterbalance the enormous benefits universal horse ownership could bring.

There is the great economic activity and creation of employment with farriers, vets, bridle makers, horsefloat sellers etc...etc.

There is the benefit of requiring children to learn responsibility.

There is the benefit of creating a society of people all blindly engaging in the same activity...(and too busy to 'think')

There are the hundreds of public service jobs which will be created to enforce this law..and to issue annually renewable licenses for horseowners.

The small percentage of people who are allergic to horses, well..gosh..they are just unpatriotic horse haters!

The people who live in apartments or flats, well, gosh they will be convicted and fined for their selfishness in expecting others to do what they themselves are not.

Fancy anyone refusing to obey a perfectly reasonable law!

11/02/2007 02:39:00 pm  
Blogger Matt B said...

Elijah, I'm not sure that's a helpful example. Again, taking as given the sake of argument that police use DNA for the same purpose as fingerprinting, DNA is simply a different way of fingerprinting.

It seems to me, ignoring for a moment the potential for abuse (which doesn't seem to be anyone's concern here anyway), a consistent position requires you either reject both fingerprinting and DNA testing of untried suspects, or accept both.

Of course, you may well reject both as unnecessarily infringing people's rights, and fair enough. If that is your position then let's talk about that instead.

11/02/2007 03:27:00 pm  
Anonymous Robert Winefield said...

Matt B,

The problem is that if you allow the Police to compel a DNA sample from ANYONE they arrest, the Police can circumvent the rules governing searches.

For instance, the Police can arrest someone for a minor infringement and then compel a DNA test without the need to provide evidence that the person may have committed the more serious crime the Police are actually interested in.

Basically it rewards the Police when they do a slap happy job of investigating a case. And that is never a good thing for innocent citizens.

And DNA isn't the silver bullet evidence-wise. Evidence, including DNA evidence, is contextual. Unless the Police investigate properly and glean an accurate picture of the context of how the DNA/fingerprints/bloody glove got to be there then the evidence is useless.

Secondly, there is a problem of cost and time. Even the latest DNA-test kits require double-blind replicate testing against the evidence collected at the scene.

In Kansas City there is currently something like a 7-year backlog of blood/semen evidence (not compelled samples) waiting testing. A documentary I saw stated that an LA-county Police District has filled up a full wharehouse full of DNA evidence that is still untested.

The utility of Fingerprint testing is that you can collect them from a suspect in about 2 minutes and then scan nationwide database in about 30 minutes. Maintaining the chain of custody is easier.

Quality DNA analysis takes a hell of a lot longer and requires the DNA to be sent off-site to a 3rd party for testing. That increases the risk of false positives. Not a good thing for the innocent.

Yes, DNA-testing is a wonderful tool. Yes, the police should make full use of it.

But neither our technology nor the NZ Police Force are mature enough (if Clint Rickards is anything to go by) to allow National to do this.

Besides which, the Pollies need to find funds for more cops before they start thinking up new millstones to hang around the necks of NZ's under performing Police Force.

Is the 111 system fixed yet? Are the Police still sending Taxis to pick up the victims of crimes? What is the response time to burglaries these days?

11/02/2007 03:42:00 pm  
Anonymous Robert Winefield said...

A backlog of DNA crime-scene evidence is actually a major problem for National's scheme when you think about it.

It means that the database that the compelled sample is going to be run against is going to be out of date.

So before you can make the system work, you need to have an easily accessable, searchable criminal evidence database in a secure facility with secure access in every police station... Cha Ching!

Then you need enough laboratory capacity to handle the influx of DNA crime scene evidence. How much depends on how long the Police are to be allowed to hold your sample before destroying it. Cha Ching!

With fingerprints, you can collect the evidence, digitise it, and enter it in the database within a day of collection. That means that the database lags maybe 1-2 days behind the crime.

DNA may lag as much as a month behind depending on how complex the crime scene sample is to analyze. And if you have an avalanche of complex samples to deal with that will only delay things...

National has no f**king idea what they are proposing nor how much it will cost.

Like I said, there are more pressing problems in the NZ Police force.

11/02/2007 03:59:00 pm  
Blogger Berend de Boer said...

How taking DNA after a conviction helps in solving a crime is only known to objectivists.

Of course you have to do it before that.

11/02/2007 04:08:00 pm  
Anonymous Robert Winefield said...

Berend et al.

Here is a bit of information on the DNA evidence problem:

http://www.dna.gov/basics/backlog/

The answer to Berend's sarcastic query is found in the introduction.

Quote "For example, in 1995, the Florida Department of Law Enforcement linked evidence found on a rape-homicide victim to a convicted rapist's DNA profile just eight days before he was scheduled for parole. Had he been released prior to being linked to the unsolved rape-homicide, he may very well have raped or murdered again."

A lot of crims evolve starting with petty theft and graduate to nastier stuff later in life.

Restricting the Police to maintaining a DNA database of convicted crims only will be quite effective without the need to increase the Police's powers of search and seizure.

11/02/2007 04:21:00 pm  
Blogger PC said...

I think the point we're arguing Berend is using the DNA in subsequent investigations.

As Robert points out, time constraints involved in its use mean its use in a contemporaneous investigation would be difficult except for anything other than a fishing investigation, or to clear a suspect.

11/02/2007 04:22:00 pm  
Anonymous Robert Winefield said...

Pardon,

"Petty theft" should read "minor crimes"

And I have no problem with databases on convicted criminals. As far as I'm concerned, if you've crossed the line, knowing that the Police can easily detect you presence at any future crime scene should be a helpful deterrent.

11/02/2007 04:27:00 pm  
Anonymous simond said...

Robert said : Are the Police still sending Taxis to pick up the victims of crimes?

That is the correct procedure? There was no crime committed, the woman was delusional (imagining things that were really never happened). So, the cops did the right thing by sending taxis. Where is the personal responsibility that you lot preaches all the time? Don't blame the cops , just blame yourself.

11/02/2007 04:28:00 pm  
Anonymous Robert Winefield said...

Simond...

No crime? How do you know? Iraena Asher is still missing - last heard of she had expressed fears for her safety.

Investigating such calls for help is the job of the Police. They aren't psychic and can only determine if it is a false alarm if they actually drive down there and get out of their sodding Police car.

You sir are an idiot.


"Iraena Te Rama Awhina Asher (b. July 17, 1979) was an Auckland trainee teacher and model who disappeared in controversial circumstances at Piha, a West Auckland beach, on Monday, October 11, 2004.

At 9 p.m. on Sunday, October 10, Asher called the New Zealand Police using the 1-1-1 emergency telephone number, from Piha, expressing fears for her safety.

Although a patrol car could have been made available to attend this incident, police decided to call a taxi for Asher to pick her up. Although a taxi was dispatched, it went to the wrong street in Onehunga, on the other side of the metropolis from Piha.

Asher was later found wandering the streets by a Piha couple, Julia Woodhouse and Bobbie Carroll, who took her into their home for several hours. At 1:10 a.m., she left their home and was subsequently seen by others, semi-clad, walking towards the beach. She ran off before she could be approached. This was the last known sighting of her.

Asher's family told police that she suffered from bipolar disorder, which was a possible cause for her erratic behavior on the night she disappeared.

In September 2005, her family held a memorial service for Asher, telling mourners that if police had responded properly to her emergency call, she might be alive today. Her parents, Betty and Mike Asher, are considering bringing a lawsuit against the New Zealand Police ([1])."

11/02/2007 05:06:00 pm  
Blogger Matt B said...

Robert, the rejection of the DNA idea here is being done on principle. I am trying to understand what principle is violated by DNA recording of suspects but which is not violated by fingerprinting. I'm not sure cost is relevant to that question.

The first part of your argument I just don't get. Are you suggesting it would be better if police did not know the identity of the owner of the 20 hairs found on the victim? Of course DNA is contextual, but what evidence isn't?

11/02/2007 05:18:00 pm  
Blogger Matt B said...

And, sorry, just to be clear: the principle being violated is consent according to PC and Mikee. But that principle is also violated by taking fingerprints and, for that matter, requiring a visit to the local station under arrest.

So it seems to me you're either for fingerprinting and DNA recording or against both.

There are only two differences between DNA and fingerprints: a) DNA is in everything, not just on the ends of your uncovered fingers, and b) DNA contains information beyond what is required to uniquely identify someone. a) makes DNA far more useful. b) creates risks, but government departments presently manage not to unlawfully share all kinds of sensitive information with insurers, banks, immigration, courts, etc, so why should this be any different?

So, again: what principle is violated by DNA collection but not fingerprinting?

I don't, by the way, have any strong view on whether fingerprinting should or should not be permitted, but I do think that whatever rule you have on fingerprinting is applicable to DNA, although subject to protections against use of additional information.

11/02/2007 05:33:00 pm  
Anonymous horst said...

New Zealand people commit crimes. It is well known that you half-breeds rape and kill tourists, steal from each other and abuse your own children. You are all potentially guilty and should be DNA tested at birth. Your DNA should be stored with the CIA for comparison with DNA which is taken from the terrible crimes you all are known to commit.

Horst

11/02/2007 05:48:00 pm  
Anonymous Robert Winefield said...

Matt,

The principle is based on the Police powers to search you.

Basically they need just cause. They can't just pick you up on a pretext and search you, take bodily fluids etc. on a whim.

Before they arrest you, the Police are supposed to have a just cause to do so.

What they are permitted to do after they arrest you is still limited. They aren't allowed to search your house just because you've been arrested. They can't freeze your bank accounts and they can't deny you the right to silence or to speak to a advocate.

Another line drawn in the sand covers the Police's power to search and take samples from your body's interior. And whilst exemplar DNA samples are generally taken with a mouth swab, there is an argument that this could be the thin edge of the wedge.

If the police can swab the interior of your mouth and collect samples without a warrant, what is to stop them from more invasive and painful procedures?

Blood samples, urine samples to check to see if you've been imbibing illicit drugs?

Pregnancy tests to see if so & so is pregnant? Ambiotic fluid tests to check paternity.

Collection of hair and nail samples or semen samples.

Now note that if the police have a reason to obtain these samples, they can. They just need to put their case to a judge. And the rules for issuing warrants are incredibly loose in NZ. The judge doesn't have to be present. The Police can lobby them over the phone and obtain the warrant by fax.

When it comes to family court the word of the complainant is enough for a protection order or a warrant to confiscate firearms is sufficient.

So the case that the Police 'need' this tool is false. What they need is more Police and fewer idiotic laws to administer. Better body armor and better sub-lethal weapons to subdue the belligerent would also help.

Then we have the nature of DNA evidence. The fact that it takes time to analyze crime-scene DNA evidence probably is the greatest hurdle to police work let alone this scheme.

What is the point of collecting DNA samples off every person who enters the Police station in cuffs if the DNA evidence database can't be updated before the deadline to destroy the sample you've just collected?

All you do is waste a crap load of money.

The other thing you do is open the door to Police circumventing the rules for collecting evidence. You permit them to go fishing for evidence. And that's the slippery slope to a Police State.

The rules are set against the Police in this way to protect the principle that the greatest crime is to lock up an innocent man.
That is the reason behind the presumption of innocence.

So there you have three principles:

(1) It won't work with current DNA technology & therefore is a waste of time and money.

(2) It sets a president for more invasive warrantless searches of your person. Take your pick there: protection from arbitrary search and seizure, protection from cruel and unusual treatment at the hands of government agents.

(3) It is ripe for abuse by shady coppers who can't be arsed doing the leg-work to get enough evidence for a warrant. And this in a country where warrants are issued like toilet paper. The principle here is that if you give a government a inch, the bastards will take a mile - and I don't believe that NZers have a mile worth of personal liberty left.

Lastly there is the principle that if racist cunts like Horst (see above) are for it, its probably a really bad & evil idea.

11/02/2007 06:34:00 pm  
Anonymous Robert Winefield said...

Lastly we come to the point about finger-prints.

You could argue that obtaining these is an affront to the search and seizure laws. On the other hand you could argue that your fingertips are in plain sight and the Police have a right to examine them in the same way that they could compare your face to crime-camera photos or a witness' description of your build, height, tattoos etc.

That's my feeble attempt to defend the Police's right to look at fingerprints. You'll have to quiz someone more familiar with the Law to get a stronger argument.

Obtaining DNA by contrast is an intrusive process. And remember the TV-shows exaggerate the ability to get DNA from things. Not because you can't get DNA from a coffee cup etc., but because you need to preserve the chain of evidence.

You have to clearly demonstrate that the evidence was obtained in an uncontaminated form from the suspect. Whipping over to the rubbish tin and rummaging around for discarded coffee cups 5 minutes after the suspect is left doesn't cut it.

11/02/2007 08:27:00 pm  
Blogger libertyscott said...

Fundamentally the Nats have always been close to the Police and the Police Association - a marriage that goes back some years, which only comes under tension when the Nats are in government and feel helpless to get the Police to respond to concerns of performance and respecting individual liberty. Labour has long had the same issue.

A government needs to be able to engage the Police in a manner that means they do not hold the state to ransom - that can only be done by splitting the Police, and having a degree of competition. A perfect piece of work for a libertarian government to get its head around.

11/03/2007 01:22:00 am  
Anonymous lgm said...

Horst

By that approach all New Zealanders are potentially guilty or actually guilty of crime. Rather than DNA all of them, why not imprison them all instead? That way they can be all watched and supervised all of the time. Hence there is no chance of them committing the crimes of which you speak.

LGM

11/03/2007 07:07:00 am  
Anonymous lgm said...

Berend

Would you support Horst's contention that all New Zealanders should have DNA samples seized at birth and stored in a national database ready to be used for socially benefical purposes (like solving crime)?

LGM

11/03/2007 07:09:00 am  
Blogger KG said...

Horst is German, ja?
Well Horst, perhaps all Germans--given your history-- should be
Nah, I can't be arsed dealing with such idiots.

11/03/2007 10:30:00 am  
Anonymous Phil said...

Correct me if I'm wrong, but aren't fingerprint records destroyed if a suspect is not charged and convicted?

11/03/2007 11:18:00 am  
Anonymous lgm said...

KG

Damn. You've stolen my thunder! I wanted a piece of that guy.

Interesting how they actually tried out this kind of state "screening" of the populace

and, it appears, learned bugger all from the consequences.

LGM

11/03/2007 08:01:00 pm  

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