MR. ASPLEN: Our next speaker is Mr. Barry Steinhardt. He is the Associate Director of the ACLU, for the national office of the ACLU, and he's the chair of the ACLU cyber-liberties task force, I guess the other hot topic when it comes to privacy these days, if you will.

Again, we asked Mr. Steinhardt to come and talk to us about privacy and the issue of arrestees.

He has the primary responsibility of the development of organizational policy at the national office, the national office assistance to the organizational development of the ACLU state affiliates, has previously served as the executive director of the ACLU affiliates in Pennsylvania and Vermont, also served as director of the public interest research group, author of various articles in Society Review, USA Today, Net Guide, New York Daily Times, and the Philadelphia Inquirer.

And Mr. Steinhardt, we welcome you, and we appreciate your comments.

MR. STEINHARDT: Thank you, Mr. Asplen.

I was struck earlier with your disclaimer that some of the speakers didn't necessarily speak for the organizations that they were members of.

As you noted in my biography, one of my responsibilities was development of organizational policy.

In the ACLU, we often tell people that if they agree with us 80 percent of the time, they should be members; if they agree with us 51 percent of the time, they should be on the board of directors.

[Laughter.]

MR. STEINHARDT: That notwithstanding, I do speak today for the ACLU and I do reflect the ACLU's perspective.

Let me first thank you for inviting me here today, thank the Commission, and thank Mr. Asplen for inviting me to speak.

I've had the opportunity to read the transcripts of your earlier proceedings, and I was impressed by the seriousness of your inquiry, by the seriousness of the questions that I heard this morning.

From these transcripts -- which, by the way, since it is an interest of mine, I commend you for putting on-line -- I was struck that most of your speakers have shared with you their hopes and aspirations for DNA evidence in the criminal justice system.

Let me suggest, I suppose I'm here today to be the contrarian, and while I will speak to the question of the day, whether or not DNA evidence should be withdrawn from arrestees, I also want to share with you my fears of what I think is the creeping expansion of the use of DNA and of DNA data-banking and the potential abuses that can come from the misuse of that information, and I want to tell you specifically what my fears are based on, and in a sense, I want to challenge the Commission to prove me wrong.

I want to challenge the Commission and the decision-makers who will be reading your reports and who you'll be talking with to demonstrate the lid can be firmly kept on the Pandora's box, which I, for one, do not believe.

Now, let me start with a point that I hope will -- we can all agree on.

Drawing a DNA sample is not the same thing as taking a fingerprint. Fingerprints are two-dimensional representations of the tips of our fingers. They are useful only as a form of identification.

DNA profiling clearly can, as you know better than I do, clearly can be used for identification purposes, but the DNA itself harbors far more than a fingerprint.

Indeed, I think it trivializes DNA testing to refer to it as a genetic fingerprint, and I note that one state court in Massachusetts have already rejected that analogy.

Now, I understand that the CODIS system contains only a limited amount of genetic information that is compiled for identification purposes, but the amount of personal and private data that's contained in DNA specimens that are retained at the state and local level make this seizure extraordinary both in its nature and its scope.

The DNA samples which are being held, generally speaking, locally can provide insights into the most personal family relationships and the most intimate workings of the human body including the likelihood of the occurrence of over 1,000 types of genetic conditions and diseases.

DNA may also reveal private information about the legitimacy of birth, and there are many who will claim that there are genetic markers for aggression, for substance abuse, for mental illness, for criminal tendencies, and even sexual orientation, and because genetic information pertains not only to the individual from whom the sample is drawn but to everyone who shares in that person's bloodlines, it poses a potential threat to the genetic privacy of not only the millions who are to be tested under the current systems but to all their family members, as well.

Now, I think it's worth bearing in mind that there's a long unfortunate history in this country of despicable behavior by government towards people whose genetic composition has been considered, at least at the time, to be abnormal.

In recounting that history and documenting the privacy concerns that it had, the National Research Council report said -- and I quote -- "These privacy concerns are far from abstract. The eugenics movement in this country, which resulted in thousands of involuntary sterilizations, the suggested screenings of violent men for extra Y chromosomes, the sickle-cell screening tests employed to prohibit marriages, and the current privacy concerns over HIV screening underlie the panel's following recommendations. Use of the data bank for other than law enforcement suspect identification purposes should be expressly prohibited and subject the abuser to criminal penalties."

Now, genetic discrimination by the government is not merely an artifact of the distant past.

During the 1970s, for example, the Air Force refused to allow healthy individuals who carried one copy of the sickle-cell gene -- these are primarily, of course, African-Americans -- to engage in flight training even though two copies of the gene are needed for the symptoms of sickle-cell to develop.

This restriction was based on the then-untested and now we know to be incorrect belief that people with a single gene could display symptoms of sickle-cell disease under low oxygen conditions.

Now, the Air Force didn't stop that practice voluntarily. It stopped it because they were sued.

Genetic discrimination by private industry is becoming increasingly commonplace.

A survey that was conducted in 1997 by the American Management Association found that between 6 to 10 percent of responding employers -- there were 6,000 companies in the sample -- used genetic testing for employment purposes.

The Council for Responsible Genetics has documented over 200 cases in which healthy people have been denied insurance or jobs based on genetic predictions.

These cases include a health maintenance organization, which told a pregnant woman whose fetus tested positive for cystic fibrosis that it would pay for an abortion, but if she elected to give birth, it would not cover the infant under the family's medical policy, and a healthy boy in California who took medication that eliminated all the risk associated with is predisposition to a heart disorder, even so his parents' insurance company ruled him to be genetically ineligible for health coverage.

In short, there is a frightening potential for a brave new world -- and that's the literary illusion that I will use today, rather than Big Brother -- where genetic information is routinely collected and its use results in abuse and discrimination.

Now, I am certainly aware that the primary purpose of forensic DNA databases like CODIS is identification and that the profiles which use 13 loci that currently provide no other information, although I personally reject the term DNA, because I think as the human genome project and other studies continue, that those loci may well turn out to contain some other useful genetic information at some point.

But that aside, the question is why am I skeptical that we can hold the line and ward off the brave new world of genetic discrimination?

In general, I'm skeptical because of the long history of database function creep, of databases which are created for one purpose, one discrete purpose, and which despite the initial assurances of their creators, eventually take on new parameters and take on new purposes.

In the 1930s, for example, my parents were promised that the Social Security number would be used only for the discrete purpose of assisting in a newly-established retirement program.

Well, we, of course, all know that, over the past 60 years, Social Security numbers have become virtually a universal identifier which is required by government and private corporations alike.

Similarly, census records that were created for general statistical purposes were used in World War II to round up Japanese-Americans, innocent, loyal Japanese-Americans and to place them in interment camps.

Now, I think we're already beginning to see that function creep in DNA databases. In the very short time that these databases have existed, we've witnessed an ever-widening scope of the target groups from whom law enforcement collects DNA and rapid-fire proposals to significantly expand the populations to new and even greater numbers of persons.

In less than a decade, we've gone from collecting DNA from convicted sex offenders, on the theory that they are most likely to be recidivists and most likely to leave behind biological evidence, to data banks of all violent offenders to data banks of all felons to juvenile offenders in 29 states and now to proposals to test all arrestees.

There have even been proposals, which I believe Commissioner Safir has endorsed, the proposal made by the Michigan Commission in Genetic Privacy, which I think, at this point, is inaptly named, to permanently preserve blood samples of newborns that have been obtained to detect rare genetic congenital diseases and to store them for law enforcement and research purposes.

In other words, if such proposals are adopted, we will effectively, over time, have a DNA database on everyone.

I'm skeptical, too, because many state statutes which allow -- which provide for DNA testing -- and they do so purportedly because the information is being collected for identification purposes, also allow for a variety of other uses.

For example, the Massachusetts law, which we are challenging in the Landry case, contains an open-ended authorization for any disclosure that may be required as a condition of Federal funding, and it allows for the disclosure of information, including personally identifiable information for, quote, "advancing other humanitarian purposes," unquote.

I'm skeptical because there are proponents of DNA database laws who continue to cling to notions of genetic causes of crime.

In 1996, to return to Massachusetts, the year before the legislature's enactment of its existing law, the Massachusetts legislature authorized a commission to research the biological origins of crime, and that commission focused on genetic causes.

As I say, the report specifically focused in on genetic causes of the criminal behavior. The report foresee a future where, quote, "genetics begin to play a role in the effort to evaluate the causes of crime" and even cited two articles regarding the now-defunct XYY syndrome.

I'm also skeptical because too many holders of DNA data refuse to destroy or return that data after the purported purposes had been satisfied, which suggests to me that they have something in mind.

For example, the Department of Defense has collected 3 million biological samples from service personnel for the stated purpose and single stated purpose of identifying remains or body parts if a soldier is killed in action, killed on duty, but he keeps that information for 50 years, long after virtually every subject, I suspect every subject, has left the military, and it refuses to promulgate regulations which assure that no third parties will have access to those records, and I think it's likely that, once the genetic information is collected and banked, pressures will mount to use it for other purposes, such as the identification of criminal suspects or medical research, and on several occasions, the FBI has already requested access to this data for the purpose of criminal investigations.

Similarly, many state laws do not require the destruction of a DNA record and/or a sample after a conviction has been overturned, or in the case of Louisiana's law that does allow for arrestee testing, in cases where the person subsequently is not convicted of the crime for which he's charged.

Now, I'm also concerned because of the existence of private DNA databases in testing laboratories in government offices that operate outside the relatively strict confines of CODIS, and I'm skeptical when, the other day, I had an opportunity to talk to Professor Scheck and he told me of discussions he had with law enforcement officials who were considering DNA dragnets, neighborhoods and classes of people, and I'm particularly distressed by the trumpeting of the British model, with this expansive testing, and whereas Mr. Weathersbee said earlier, at least in one case, in all the male inhabitants, all the young male inhabitants of an entire village were required to submit to blood or saliva tests.

In short, I think the trend is away from limited-purpose forensic databases. The purpose and target populations are growing, and the trend is ominous.

Compounding this problem is that there are few laws and certainly none at the Federal level which adequately protect genetic discrimination by employers, by insurers, or by medical care providers.

More and more DNA is being collected, and with the advances in genetic research, that DNA is more and more telling, and more and more discrimination and misuse will occur.

Now, let me turn to this question specifically of DNA testing of arrestees.

Not surprisingly, we are against it, but you probably could have guessed that.

Aside from supporting my suspicions that we would soon see an -- that we are seeing an ever-widening circle of DNA surveillance, these proposals are fundamentally unfair, they violate the constitution, and even from a law enforcement perspective, they are not practical, at least for the moment.

Now, let me start with what I thought would be obvious. Arrest does not equal guilt, and you shouldn't suffer the consequences of guilt till after you have been convicted.

Now, I say this is obvious, because clearly some political leaders have a different view.

For example, in discussing his proposal to seize cars from those arrested for drunk driving, Commissioner Safir's boss, Mayor Rudolph Guiliani of New York, took a page from what I think is the Alice in Wonderland school of jurisprudence, which is punishment first, trial later.

He said, quote, let's say somebody is acquitted and it's one of those acquittals in which the person was guilty but there is just not quite enough evidence beyond a reasonable doubt. That might be a situation in which the car could still be forfeited.

Now, putting aside the mayor's approach, the fact is that many arrests do not result in conviction.

For example, a national survey of the adjudication outcomes for felony defendants in the 75 largest counties in the country revealed that, in felony assault cases, 50 percent of charges were dismissed outright, and in 14 percent, the charges were reduced to a misdemeanor.

A study released by the California State Assembly Commission on the status of African-American male in the early 1990s revealed that 64 percent of the drug arrests of whites, 81 percent of Latinos were not sustainable, and an astonishing 92 percent of the black men arrested by police on drug charges were subsequently released for lack of evidence or inadmissible evidence.

Indeed, I think there is a disturbing element of racial disparity that runs throughout our criminal justice system that can only be compounded by the creation of databases of persons who are arrested but not convicted of crimes.

Racial profiling is a reality in this country. Just this past weekend, the head of the state police in New Jersey was fired by Governor Whitman.

As some of you may know, the New Jersey State Police is under investigation for racial profiling on the state's highways, and the head of the state police was quoted in newspapers suggesting that his officers were going to the right place. After all, minorities were more likely to be involved in drug crimes.

The fact is I don't think it's statistically supportable. What minorities are more likely to be is arrested.

Indeed, one study that we commissioned in the State of Maryland found that, of police stops on a strip on Interstate 95 in Maryland over several months in 1995, found that 73 percent of the cars stopped and searched were driven by African-Americans, while they only made up 14 percent of the people on the interstate.

While the arrest rates were the same for whites and African-Americans, approximately 28 percent in each case, the disproportionate number of stops resulted in a disproportionate number of African-Americans being arrested.

Now, I make no secret of the fact that we oppose DNA data-banking even for convicted felons. We have argued and will continue to argue, in cases like Landry in Massachusetts, that they are intrusive, unreasonable searches made without individualized suspicion, but even if you accept the rulings that DNA data-banking for convicted felons is permissible, either because there is a special need or persons have been convicted of a crime with a high recidivism rate or there is likely to be the presence of biological evidence, like sexual assaults, or that convicted felons have a diminished expectation of privacy, neither of these circumstances apply when we're talking about those who have simply been arrested.

To find otherwise is to equate arrest with guilt and to empower police officers, rather than judges and juries, with the power to provide the state with the evidence that harbors many of the most intimate secrets that we hold and of our blood relatives.

Under the current circumstances of mistrust, it's an especially chilling notion for a New Yorker. I'll leave it there, and I know that Commissioner Safir will want to address the New York situation.

Let's turn to the legal theories for a moment.

Take, for example, the diminished expectation argument in which the post-conviction DNA tests rest. Under this doctrine, the rights of persons who have been convicted become diminished but only to the extent that they are fundamentally inconsistent with the needs of the regime which has lawfully committed them.

I don't think it can be argued that forcing arrestees to provide blood samples bears any legitimate security concern. There are far easier, less intrusive ways of attesting to identity, even for those in pre-trial detention. There are ample ways to do that

Nor by definition can it ensure compliance with any specified term of post-conviction supervised release. Put simply enough, these people have not been convicted of any crime; they may never be.

The only possible justification is criminal investigation. Seems to me, if law enforcement has a reason to suspect an individual arrestee, that it can and should seek a warrant.

If the special exception doctrine makes any sense in the context of the post-convicted, it's based on the assumption that they have been found to have committed a crime where the recidivist rate is high and the presence of biological evidence is likely.

Arrestees are presumptively innocent. I don't believe that you can justify the forced testing of a person for jaywalking, for taking part in a political demonstration, for shoplifting, etcetera, under those doctrines.

Finally, let me turn to the most practical considerations. Indeed, it's the only consideration that gives me any reason to hope that we will not move further down the road of DNA surveillance.

As I read the literature and study the transcripts of your previous meetings and as I heard Mr. Weathersbee this morning, the single greatest obstacle to implementation of the existing DNA data-banking laws is the large backlog of unprocessed samples.

If I read the literature correctly, there are approximately 350,000 unprocessed samples and only a small minority percentage of samples have, in fact, been processed and put into the CODIS system.

It seems to me, from the law enforcement perspective, it really doesn't make a lot of sense to put the next dollars into collecting and processing samples from persons who have never been convicted of a crime, let alone for a crime of the sort where the DNA evidence is most likely to be probative.

Wouldn't it make more sense to put the resources into processing the samples that you already have and will generate in the future under the existing programs?

In closing, let me suggest that I would love to be proved wrong. I would be more than happy to find out that my fears, fears of my organization, are misplaced and that the civil liberties community is wrong about the likely future.

If the advocates of DNA banking can, in fact, restrict the uses of data, as the National Research Council suggested, to forensic identification, if data banks only cover persons convicted of a small number of relevant crimes, like sexual assault, if testing practices and data security are improved, all to the better. I won't mind being wrong. Pandora's box can be closed.

But the stakes are high and the risks great. Every expansion of data banks and every new use of those data banks increases that risk.

Your commission has an obligation not just to assist law enforcement but to protect the privacy interests of all Americans and see that justice is done for all Americans.

Now, we may not agree on what has come before, but I hope that we will agree that, if the line is not held here, it may never be held at all.

Thank you, and I'll take your questions.

MR. KENNARD: I have a question. Did I understand -- Sheriff Kennard, Salt Lake County Sheriff. Did I understand you to just say that this committee has no responsibility to assist law enforcement?

MR. STEINHARDT: No, I said that it wasn't this committee's sole responsibility. I certainly understand that there is a obligation on the Commission's part to assist law enforcement, but I don't think that's your only obligation.

I think your obligation is, generally speaking, to do justice and to protect the privacy interests of Americans.

DR. REILLY: I think I understand your point on this, but I want to clarify.

Under what circumstances, if any, may a suspect who has been arrested for a violent crime that falls within the definition that you would use, in your mind, in your closing comments, have a blood sample drawn for DNA analysis?

MR. STEINHARDT: Pre-trial, pre-conviction.

DR. REILLY: Upon the issuing of a warrant?

MR. STEINHARDT: We don't have any objection upon the issuance of a warrant, no.

DR. FERRARA: Mr. Steinhardt, I assume you're familiar with the U.S. -- Fourth Circuit U.S. Court of Appeals decision in the case of Jones et. al versus Murray and Ferrara, and that, of course, limited to convicted felons.

What weight -- or how does that decision -- and the U.S. Supreme Court denied cert in that case -- play into some of the legal concerns and arguments against the drawing of convicted felons samples?

MR. STEINHARDT: Well, certainly, that -- with regard to convicted felons, that's good law in the Fourth Circuit. As the law professors here, I'm sure, would be the first to point out, that's where it applies.

DR. FERRARA: Yes.

MR. STEINHARDT: I happen, of course, to think the case was wrongly decided. I think the dissent was correct. But I don't think it applies -- even a reasoning of that case applies to the question of arrestees.

DR. FERRARA: No. I understand.

MR. STEINHARDT: Right.

DR. FERRARA: Thank you.

MS. BASHINSKI: Could I ask you -- you said that laws should be adequately protecting the privacy and the information. What other elements do you think are essential in the law that does adequately protect the database?

MR. STEINHARDT: Well, I think in general -- this is not simply the forensic databases, but in general, the samples should only be drawn with informed consent, they should be closely held, they should only be used for the purposes for which the consent is given, there should be no other uses without informed consent of the individual, and I think we need to have laws that prohibit discrimination in employment, insurance, provision of medical care based on genetic information.

MS. BASHINSKI: Given that there is no consent, because we have convicted offenders, what are the restrictions you would accept, or would you accept that concept at all? What are the restrictions that you think are necessary to keep the data properly controlled?

MR. STEINHARDT: With respect to the existing forensic DNA database, I think that the data should only be collected for identification purposes, I think the samples should be destroyed some reasonable period after the data is collected, because it's, after all, the biological samples that pose the greatest threat to individual privacy rather than the profiles that are done for identification purposes.

I think that the access should be restricted to law enforcement. I don't think that the laws, like Massachusetts law, which makes the data available for humanitarian purposes, research purposes, is a proper use.

Plainly, I think there needs to be better security than exists in some of the data banks, those sorts of things.

MR. ASPLEN: Mr. Steinhardt, one question. Do you think there's anything to be said for the extent to which the DNA database is actually colorblind if we look at it in terms of utilizing it for investigative purposes?

The DNA sample that goes in and searches the database doesn't -- we're not rounding up the usual suspects, if you will. It goes and looks at everybody. It doesn't target a particular race, if you will, and doesn't the technology essentially take the human factor out of it and we don't go out and round up the usual suspects, if you will, based on racial prejudices? Is there anything to be said for that argument?

MR. THOMA: Chris, I think his point was that blacks and other racial groups are arrested in such high numbers as opposed to others and they're tested as against the sample.

MR. STEINHARDT: I understand your point, but that's exactly right. I think if you have an underlying population that's being tested that is disproportionately persons of color, then what you've got is tests that are disproportionately picking out persons of color.

I think that's the problem, and I think you compound that problem when you begin to sample all arrestees, not just those persons convicted.

MR. SMITH: Do you solve that problem if the database is universal?

MR. STEINHARDT: I suppose you solve that problem if the database is universal, but I don't know that that's a solution that I would want, although I do think that it's the ultimate extension of this argument that I'm sure Commissioner Safir will make, that even if only small percentages of people are guilty of some crime, if we have a large enough database, we'll solve every crime.

The ultimate extension of that argument is that we should DNA-sample everybody, everyone should have their DNA in a file. I don't think that's the society we want to live in.

MR. THOMA: Mr. Steinhardt, I appreciate your quote from the 12th chapter of Alice in Wonderland. I think it's the quote by the king -- sentence first, trial afterwards. I'm a big fan.

Let me ask you this question, and it's really rhetorical, but I think Mr. Weathersbee brought up and Commissioner Safir will bring up this point, their question on whether you should take DNA from arrestees should be based upon capacity rather than probable cause or Fourth Amendment concerns, and I guess it would follow, searching all detainees, more contraband would be found, and I think the argument might be that that makes for more detentions and more arrests, because more can be done with it, and I'd like you talk -- speak on that for just a moment, if you would.

MR. STEINHARDT: Well, I think it's certainly true that, if you searched every person walking on the streets, you searched every home, you undoubtedly would find more contraband than you're currently finding, you would find more evidence of criminal behavior than you're currently finding now.

I don't think that's the society that our framers had in mind when they drafted the Fourth Amendment, and I don't think that's the society most of us want.

I would also note that I think that, even in the existing framework, that there is a very troubling aspect to the way in which police officers now do their jobs and conduct routine sorts of searches and that the police unit that was involved in the shooting in New York, which is the shooting where an unarmed man was shot 41 times, not drawing any conclusions about that case in particular, but the same unit essentially stops and frisks four people for every one that they find with contraband that they make an arrest, which means that they're wrong three-quarters of the time, and although they're supposed to be doing those stop-and-frisks on the basis of some reasonable suspicion, I don't think we want a society where we are encouraging police officers to be exercising that kind of authority and that kind of discretion.

I think that, inevitably, they will exercise it improperly.

DR. CROW: There are two people that I noticed who would like to speak. Woody is the first, and then I'll call on you next.

MR. CLARKE: Actually, I'd like to return, if I could, to what Jan brought up about the potential for laws and the laws that you've suggested that should govern any databases, and frankly, it draws on what Michael Smith brought up yesterday about talking literally to his -- I can't remember the context. I think it was a clinical draw of his own blood, and in particular, the informed consent that didn't address it whatsoever.

We know -- and I, coincidentally, have the same question for my own physician about what happens to that blood. I've asked the same question of a couple of clinical diagnosticians about what they do with the blood, and the reality is they do whatever they want to do with it.

So, my question to you is should those same laws apply with equal -- or should be there be separate laws to apply with equal force to those settings in which individuals who haven't been arrested for crime now have given samples that could be typed for whatever purpose?

MR. STEINHARDT: What I intended to -- and the answer to the question as I first understood it -- I appreciate the fact that I may not have understood it properly -- was to suggest that I think we need to -- putting aside this question of forensic DNA data banks, that we need to have laws that protect our privacy by requiring concepts like informed consent across the board, and we need to have laws that prohibit discrimination on the basis of genetic information across the board, regardless of who is drawing that sample or where it's being banked or how the information is being developed, but I'm concerned about the civilian uses of DNA as well as the police uses of DNA, law enforcement uses of DNA.

DR. CROW: Phil, you're next on my list of people, the hands that I've seen, in that order.

DR. REILLY: I'll be brief. I'm going to just re-ask the question, because I want to get as clear a picture as I can of your position.

If DNA data-banking for convicted felons can be conducted in ways such that the whole DNA sample is not retained but a digitized version of it is retained, to what extent are your concerns diminished?

Is that the single major concern you have? Because that is the way I heard you. I want to know how big a factor that is in your mind.

MR. STEINHARDT: We are opposed to the creation of DNA data banks even from persons who are convicted of crimes where it's done on a mass basis without individualized suspicion, but we're also aware of the fact that they now exist, now exist in all 50 states.

To the extent to which the biological samples are destroyed and all that's left, therefore, is the genetic identification profile, yes, my concerns are diminished.

Given the current realities, where, in all 50 states we have laws, although in Massachusetts, the law is currently on hold, I am certainly not foolish enough to think that our position is likely -- our ultimate position is likely to be vindicated.

DR. CROW: I had you next.

MR. STEINHARDT: Did that answer the question?

DR. REILLY: Well, it didn't completely answer it, because I wanted to know the magnitude -- if there is a pie that represents your concerns, how big a slice of the pie is that, and you didn't really answer the question. You said it was diminished, but 1 percent, 50 percent, 95 percent?

MR. STEINHARDT: I don't know that I could put a number on it, but certainly, it would significantly diminish.

DR. REILLY: Okay, that's fair enough. "Significant" is a good word for me. I can quote you on that.

MR. GAINER: Mr. Steinhardt, you mentioned, when the Sheriff asked you about what our other obligation might be, and to, I guess, characterize it in general, public safety or the rights of others, somewhere in there you might feel that is also a natural extension of the things we ought to look into?

If that's a good paraphrase of your philosophy, where do you come down on the simple public protection policy that the criminal justice system would look at the recidivism rate of a certain class of criminals which might be very, very high and say, in the interest of public safety, if, for instance, in sex offenders, it's 70, 80 percent, that we ought to have the DNA profile of those individuals in order to run against what is a pretty good bet an offense or offender is going to happen again?

MR. STEINHARDT: Well, I still think that the Fourth Amendment requires individualized suspicion. Individualized suspicion means the specific individual, not the class of individuals to whom that person happens to belong.

Now, I'm certainly aware -- the question was asked before about the Fourth Circuit case -- that there are many courts who have taken the position that that constitutes a special need and that the testing is appropriate.

There's at least one court in Massachusetts which has taken the contrary position, but again, looking in the context of your question, we're going to adhere to a fairly discrete number of crimes where there's a high recidivism rate and where there are frequently biological evidence left behind.

All those things will diminish in some -- I don't know what the proper adjective is there -- my concerns if we can, in fact, hold the line that that kind of DNA profiling for those kinds of crimes.

DR. CROW: Sheriff Kennard.

MR. KENNARD: Yes.

Mr. Steinhardt, getting back to what Jan had mentioned, the fact -- if there were sufficient laws on the books and we were to use these samples and the identification, what concerns would you have if we were to use them simply for identification?

Would that not alleviate your concern for making the same thing on arrestees, allowing law enforcement to use it for just that identification? Would it diminish your concerns?

MR. STEINHARDT: I think that the -- I think, first of all, that we will be disproportionately targeting persons of color when we test all arrestees; that, secondly, it vests too much authority in the hands of police officers to make those arrests; and thirdly, the Constitution doesn't permit it.

Now, do a lot of my ultimate worries about how this data will be used -- are they diminished in some way by the destruction of the biological samples and by strict laws controlling access? Sure. But neither of those things, I think, exist now, and we have to deal with the current realities.

I would suggest, at least, before the Commission consider whether or not it wants to begin to take samples from all arrestees, that you ought to satisfy those concerns before you expand the population of people from whom you're taking samples.

We need to get our house in order before we test more and more people.

MR. KENNARD: Our house in order in regards to what? Are you suggesting that the problem rests with law enforcement?

MR. STEINHARDT: No, I don't think the problem rests exclusively with law enforcement. A lot of the problem rests with the United States Congress and state legislatures, which have not addressed the question of genetic discrimination, which are the bodies which ultimately control these databases, the scope of the databases and their uses.

I didn't mean to single out law enforcement here, but when I use the term "you" there, I meant that government, in general, needs to get its house in order. This commission, as it speaks to government needs to suggest to government in general that the house needs to be brought into order before we even consider whether or not it makes sense to expand the scope of these databases and their use.

DR. CROW: Barry?

MR. SCHECK: I think it would be helpful to us if you could provide some information with respect to genetic discrimination in laws (a) that are already in place, (b) that you think are better than the ones that are already in place, (c) how they could -- you know, looking at it as a package, I mean building on what Dr. Reilly was saying, let's say that the biological sample in databases is destroyed, so that the danger, at least, of being able to seize somebody's DNA for testing for other purposes, as a practical matter, is eliminated.

In addition, what other kinds of packages, you know, could you help us with that would help draw this line so that, when we say we're using it for identification purposes only, we can really guarantee it? I think that would be very useful.

MR. STEINHARDT: I would be happy to do that. I'd be happy to put a package together.

DR. REILLY: In the 105th Congress, there were 15 bills introduced on genetic discrimination. None were enacted. Some are being re-introduced. The general debate is not whether or not there should be laws to protect against genetic discrimination but whether it would be far more preferable to have a general medical privacy bill, and I, for one, want to protect everybody's medical records, not just their genetic records.

Secondly, as we speak, 38 states have enacted laws that prevent the use of predictive genetic information in underwriting health insurance, 38 out of 50.

MR. GAHN: Just to clarify one point, you've spoken about all arrestees and you talked about shoplifters or the necessity of taking a sample from them. Is there a class of arrestees, if there were certain controls, that would be permissible to take a sample from?

MR. STEINHARDT: Not in my view.

MR. GAHN: There's no arrestee at all, under any framework.

MR. STEINHARDT: Well, let me amend that. I think the answer to the earlier question is this, that if you have an arrestee for whom you have probable cause to believe that they were involved in a crime, then it's appropriate to obtain a warrant to take the sample, yes, but I don't think there's a class of arrestees, as opposed to individual arrestees, from whom it's appropriate to draw a sample prior to their conviction.

DR. CROW: I want to stay on schedule. Let me remind you of one thing, though. It's a standard geneticist joke that probably the rest of the world doesn't know, and this is a distinction between junk DNA and trash DNA. Trash is something you throw away. Junk is something you save around because it possibly will have a use sometime, and I take it you're using junk in that sense.

MR. STEINHARDT: Yes, I am, and I appreciate that distinction, and I'm going to use it.

DR. CROW: With that said, I'll close the discussion, and thank you very much, and we'll adjourn for 15 minutes for a coffee break.

[Recess.]

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