The Third Party doctrine and Carpenter are colliding with DNA identifications.

Imagine a crime scene where biological evidence is recovered. Law enforcement will collect it and send it to the crime lab to extract a DNA profile to hopefully identify a suspect.

Once they’ve recovered a profile, they will then run the unknown profile through the CODIS database. The CODIS database, depending on the State, will have the profiles of convicted felons and some people who have been arrested. Sometimes, investigators will find a profile that they believe is a “match”.

Law enforcement investigators have tried other methods to get DNA profiles from willing yet unwitting people. Those have included preserving a suspect’s drinking cup to going out into the neighborhood and “asking” people to give up a cheek swab. There’s one famous example where a suspect was tricked into sending a letter. He licked the stamp and the envelope.

Now, there’s something new for investigators. There are a number of companies, such as 23 and me who collect your DNA to give you a personal genealogy lesson in trade for a fee. These companies have grown in popularity and use. Law enforcement has realized that there’s another private database(s) out there.

Here is a link to a piece from NPR that discusses some of the privacy implications of these private databases.

It’s only a matter of time before a court has to decide whether the third party doctrine controls, or whether something as personal and intimate as your DNA means that Carpenter applies to require a warrant to recover your DNA that you submitted to find out your personal background.

When that case comes down, you can bet it’ll be covered here. The most disturbing quote in this piece to me is this:

“It seems that very quickly we can get virtually to nearly everyone.”

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