Mick Wallace (Wexford, Independent) | Oireachtas source

As I mentioned in the recent debate on the freedom of information legislation, our society is at a critical juncture. With the advent of new technologies that are having a massive impact on how societies are informed, monitored and organised, an extensive international discussion is taking place in respect of the role of government in people's lives and how it relates to the privacy of the state's citizens and, ultimately, how government would appear in a genuinely democratic state. Only a week after the debate to which I refer, it is ironic that we have been presented with a Bill in which it is proposed that technology be used to infringe on the civil liberties and privacy of the people of this country.

Although the introduction of DNA evidence into criminal justice systems has largely been a success - it has been used to convict the guilty and free the innocent on countless occasions - new developments in DNA science and the expansion of DNA collection by states must give us pause for thought and create the opportunity for a wider debate on the role biological technologies should play in our lives. Article 40.3.1o of the Constitution states "The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen", while Article 40.5 states "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law."

US courts have consistently found that the collection and analysis of one's DNA constitutes a search for two reasons. First, bodily - or at least tissue - intrusion is necessary for DNA extraction. Second, is the substantial and uniquely personalised nature of the information contained in DNA. At the same time, the US courts have upheld the operation of convicted-offender DNA databases, including the forcible extraction and banking of DNA, for two reasons, namely, because the government's interest is one of special needs, beyond the normal need for law enforcement or as a result of the fact that convicted criminals have a diminished expectation of privacy as balanced against society's need to promote law and order. Arguably, the role of DNA databases for convicted criminals is for precise identification and for helping police solve recidivist crimes. However, the position is changing fast in states across the US. Since June of this year, US authorities have been given blanket justification in the context of collecting and using DNA evidence without limits.

I have read the Bill and it appears the Minister wants to follow the example of our friends across the Atlantic, even though it would be wise to look more sceptically at, rather than ape, a justice system which manages to lock up one quarter of the world's prisoners in a country which is home to only 5% of the world's population. It is clear from section 9 that the Minister proposes to give An Garda Síochána the right to take DNA samples by force, if necessary, from any person, unless he or she is a child or has been classified insane, who has the misfortune to be detained by gardaí. It appears the Minister wants to build up the DNA database as quickly as possible, with scant regard for whether citizens whose information will be placed on it have committed crimes.

While the prevailing notion with respect to DNA databases is "the bigger the better", it is worth noting that the ability to use DNA in solving crime is limited by the ability to collect uncontaminated and undegraded DNA at crime scenes and not by the number of names in the database. As databases are expanded to include people convicted of minor offences or who were merely arrested, the chances that any given profile in the database will help resolve future crimes apparently diminish. In the UK, the enactment of arrestee testing in 2004 corresponded with the number of profiles on the UK database increasing from 2 million to 3 million, including those of more than 125,000 people never charged with any crime, in a three-year period. This, in turn, has corresponded with a slight decrease in the number of matches with crime scene evidence.

I draw the Minister's attention to a recent report in The Guardianwhich revealed that the DNA of thousands of innocent children in Britain is being taken by police and stored on a national database. Police have taken the DNA of 120,000 children in the past two years. According to the figures obtained by the Howard League for Penal Reform, a total of 4,000 children under the age of 13 had their DNA taken in 2011. Police can take DNA from anyone arrested and store it on a database even if he or she is not charged or convicted of a criminal offence. The Howard League for Penal Reform states that a child's DNA is being taken by the police in Britain once every ten minutes.

A number of civil liberty issues arise. The first and most obvious is the subject of individual privacy. The taking of a DNA sample from an innocent person can be seen as the equivalent of an unwarranted search thus violating his or her personal rights, according to our Constitution. It is also important to note that DNA collection is not the same, in principle, as the widely accepted practice of collecting and databanking fingerprints. A recent report by the American Constitution Society for Law and Policy clearly outlined the differences and potential dangers of expansive DNA collection as opposed to fingerprinting. It stated:

By contrast, DNA, which must be extracted from a tissue sample and mined for data, contains exactly the kind of information that raises privacy and other civil liberties concerns. Research conducted to expand our knowledge of what can be revealed by examining a person's DNA continues; as of this writing, samples of DNA can provide insights into familial connections, physical attributes, genetic mutations, ancestry and disease predisposition. As science advances, the phenotypic information available from human DNA will necessarily grow. Genetic information could be used in discriminatory ways and may include information that the person whose DNA it is does not wish to know. Repeated claims that human behaviors such as aggression, substance addiction, criminal tendency, and sexual orientation can be explained by genetics render law enforcement's collection, use and retention of DNA potentially prone to abuse.

A second problem with the proposed Bill and its intent to take DNA from innocent citizens is that it marks a fundamental shift in the function and intended purpose of what has been termed "criminal databanks". The routine trawling of these databases by gardaí makes the people whose personal data are included into suspects for all future crimes even though there is no method, reason or actual substantial police work which would make them suspects under any other circumstances. This process was clearly put in the wider context by the American Constitution Society for Law and Policy when it stated:

Requiring persons convicted of a crime to forfeit certain rights of bodily integrity and privacy while under authority of the penal system has been ruled defensible. However, subjecting those who have never been suspected of a crime, let alone convicted of one, to this treatment potentially undermines the presumption of innocence. Adding the DNA data from millions of innocent persons to these databanks alters their purpose from one of criminal investigation to population surveillance, subverting our deepest notions of a free and autonomous citizenry.

Part 10 of the Bill goes into some detail in regard to the retention and destruction of DNA samples and DNA profiles. It seems to be the case that the Commissioner may, under certain circumstances, extend the period of retention for up to six years in the case of a sample that is taken from an innocent person. This is obviously a worst case scenario but reading between the lines of the Bill, this possibility exists. Also, in certain cases, there seems to be an emphasis on the responsibility of the owners of the DNA to make requests that the DNA sample or profile be destroyed.

Ultimately, given the general lack of transparency, which the Government intends to enshrine in the provisions contained in the new freedom of information legislation, and of accountability surrounding An Garda Síochána, it is fair to be sceptical about what will happen to our DNA samples once they are in the hands of the State.

I re-emphasise the point that this treatment potentially undermines the presumption of innocence. Adding the DNA data of millions of innocent persons to these databanks alters its purpose from one of criminal investigation to population surveillance. There was a time when states kept people who they had genuine reason to be suspicious of as being engaged in illegal activities under surveillance. We have seen from many of the revelations from WikiLeaks and, more recently, from Edward Snowden that the days of keeping tabs on those suspected of illegal activity seems to be diminishing. Now we seem more content to keep data on just about everybody, about which I have concerns.

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