The use of biometric technology is fast becoming the next big thing in privacy litigation. There was last month’s decision by the Illinois Supreme Court that upheld a consumer’s right to sue companies for collecting biometric data – such as fingerprints and iris scans – without first disclosing how such information will be used. See our blog on that ruling here.

And now, the debate surrounding the use and collection of biometric data has expanded beyond challenging the biometric collection practices in the private sector, to challenging the practices of state and local governments including law enforcement.

In Center for Genetics and Society v. Becera, a lawsuit filed late last year in California state court, two nonprofit organizations and an individual sued the state of California, challenging its DNA Fingerprint, Unsolved Crime and Innocence Protection Act (the “DNA Act”). The DNA Act authorizes the retention of DNA samples collected from people arrested on suspicion of a felony.

The lawsuit alleges that the “government has no legitimate interest in retaining samples and profiles from people without felony convictions because they were not charged, their charges were dismissed, they were acquitted, or their cases [were] otherwise resolved without a felony conviction.” The plaintiffs assert their claim under Article I, § 13 of the California Constitution, which is the state equivalent of the U.S. Constitution’s Fourth Amendment’s protection against unreasonable searches and seizures.

California is one of 31 states that authorize the collection of DNA from arrestees – so called “DNA arrestee laws.” DNA arrestee laws vary from state to state based on a number of factors, including the offense itself, whether a probable cause hearing was required, when the DNA sample was collected, when the DNA sample was analyzed, among other factors. Additionally, all 31 laws include an expungement procedure in the event the arrestee is not charged, convicted, or has their charge reduced to a crime that does not qualify for DNA collection.

In some states, expungement is automatic, while in others, the arrestee must request it. Under California’s DNA Act, an arrestee who was wrongly arrested or cleared of wrongdoing must file a written request for expungement.

The legal landscape surrounding DNA collection is relatively new. In 2013, the U.S. Supreme Court in Maryland v. King upheld a Maryland law that authorized law enforcement to collect DNA samples from arrestees. The Court acknowledged that collecting a DNA sample is a “search” under the Fourth Amendment, but neither the swabbing of the inner cheek or the use of DNA to check an arrestee’s criminal history were “unreasonable.”

And last year, the California Supreme Court in People v. Buza held that the state's DNA Act’s collection requirement was valid as applied to an individual who was arrested for a serious offense and ultimately convicted of felony arson. The Buza court expressed no view on the constitutionality of the DNA Act as it applied to other classes of arrestees, nor did it decide whether automatic expungement is necessary for the wrongly arrested or exonerated.

The complaint in Center for Genetics and Society wades into the area Buza did not explore, focusing on the 750,000 people who, from 2009 through 2017, were subjected to DNA collection but were never convicted of a crime. Only a fraction of those individuals had their records expunged. The plaintiffs are asking the court to enjoin the state from analyzing DNA samples unless a judicial officer has found probable cause, and they are also asking the Court to require the State to make expungement automatic.

California is not the only state where DNA collection laws are being challenged. In November 2018, a New York criminal court judge held that a 17-year-old’s DNA sample was unlawfully obtained, finding his consent to its collection involuntary because of his age. In the same opinion, the court reiterated that state law does not authorize the Office of Chief Medical Examiner of the City of New York to “store, maintain or be a repository for DNA profiles” of arrestees and non-convicted suspects.

As the collection of biometric data becomes more prevalent, we are likely to see more litigation focused on the use and storage of such data. We’ll continue to report on significant developments in this area.