Downtown Public Service Group Slams DNA Collection from New Yorkers Convicted of No Crime
On the third anniversary of promises by City officials to disclose demographic information about New Yorkers whose genetic material was gathered without their knowledge or consent, a non-profit organization based in Lower Manhattan is denouncing what it calls continued stonewalling on those commitments.
The Legal Aid Society, headquartered at 199 Water Street, filed suit last April in the United States District Court in Lower Manhattan (as well as in New York State Supreme Court) on behalf of multiple plaintiffs who were arrested and detained on minor offenses during the demonstrations that swept through New York City—with a concentration in Lower Manhattan—following the death of George Floyd in police custody in May, 2020. That litigation is ongoing.
More recently, the Society has renewed a push for the New York Police Department to live up to promises made to the City Council three months before those protests. In February 2020, then-Chief of Detectives Rodney Harrison said in sworn testimony, “the NYPD will begin to document… the age, gender, and ethnicity of individuals who are entered and those removed from the database, to monitor and review disparities amongst those arrested and placed in our database.”
The Legal Aid Society charges that the NYPD is known to catalog the race of persons who appear in other databases, such as those created by facial recognition software, pointing to the strong likelihood that similar metrics are compiled for DNA records. The group believes that political sensitivity surrounding questions about what percentage of the database contains genetic material from ethnic minorities may lead to reluctance by law enforcement to disclose these statistics.
Phil Desgranges, an attorney at the Legal Aid Society, says, “the NYPD promised to be transparent about what groups have been targeted under its DNA collection program, but it continues to keep the public in the dark. We can only wonder what the NYPD has to hide here and whether—based on the Department’s past practices—Black and Latinx New Yorkers make up the overwhelming number of people who have had their DNA secretly collected and stored in the City’s database.”
At issue is what the Legal Aid Society describes as “the illegal, secret seizure and storage of DNA material from New Yorkers—including children—whom the police suspected of committing a crime without obtaining a warrant or court order.”
Court papers say DNA collection took place without the knowledge or consent of the plaintiffs, most often by bringing them into interrogation rooms that had been prepared to capture saliva, skin cells, or other genetic material. In that controlled environment, detectives routinely offer cigarettes or drinks to the people they are interviewing, later retrieving these and extracting genetic material. In one instance, detectives handed a 12-year-old boy a McDonald’s soda. After the boy drank from it and was escorted out the room, they removed the straw for DNA testing and placed the child’s DNA in the Suspect Index. (New York State law explicitly forbids police from cataloging the DNA of minors, and broadly limits the retrieval of DNA from people of any age without their consent or a judge’s order.)
The suit contends that DNA profiles stored in the Suspect Index are “put in a perpetual ‘genetic lineup,’ and compared to DNA evidence taken from practically any past or future investigation—all without obtaining a warrant or court order, and in blatant contradiction of New York State law, which prohibits the indexing of a person’s DNA unless they have been convicted of a crime.”
“This database operates virtually unchecked, and despite promises from the City to reduce its size, the database has continued to grow at the expense of communities of color,” Mr. Desgranges says. “We simply cannot trust the NYPD to police itself, and we look forward to judicial review of these destructive practices to bring our clients the justice they deserve.” The Suspect Index is estimated to contain DNA from more than 30,000 New Yorkers.
Critics of genetic collection by law enforcement note with alarm that NYPD has begun deploying a new forensic technology, called Investigative Genetic Genealogy (IGG), which uses DNA to map out a family tree for any person whose cells are collected. Such a database becomes vastly more powerful by including samples from large numbers of people not suspected of a crime, simply because any of them might someday be identified as a family member of a person who is.
“This new technology creates an incentive for the NYPD to secretly collect and store as much ‘suspect DNA’ as possible,” the Legal Aid Society notes, “because that person’s DNA may turn out to be genetically related to DNA collected at a crime scene and investigated using IGG.”
Ironically, one group that is categorically protected from this kind of genetic surveillance appears to be police officers themselves. In spite of the fact that the federal government’s National Institute of Standards and Technology has recommended that all law enforcement personnel place their DNA in an “elimination database” to avoid contamination by officers who come into frequent contact with crime scenes, police unions have consistently blocked this recommendation, citing privacy concerns.