Monthly Archive for July, 2011

Appeals Court Upholds Mandatory DNA Testing for Arrestees

One of the big controversies in criminal justice system is how, and whether, we should catalog the DNA of criminals.

Everyone is well aware of the fact that a comprehensive DNA database would be a major asset in most criminal investigations, making it easier to identify suspects, and rule out innocent people early in the investigative process.

DNA evidence has, without question, already revolutionized criminal investigations. A single strand of hair or drop of blood can be enough to catch a violent criminal who might have otherwise gone free. Of course, DNA evidence isn’t useful unless there is a suspect to compare it to. A DNA database, which would take and record DNA samples from everyone who goes through the criminal justice system, would make it far more likely that a sample collected at a crime scene can be traced back to the person it came from.

A federal law allows federal law enforcement officers to collect DNA samples of all federal arrestees (people arrested by federal agencies such as the FBI, DEA, Secret Service, etc.). This law is somewhat unique, because most state laws allowing the collection of DNA only authorize it for people who are actually convicted of crimes. A law allowing DNA collection from anyone who’s arrested (whether or not they’re ultimately convicted) would, obviously, be much more far-reaching. Such a law has just been upheld by the 3rd Circuit Court of Appeals. Most other federal courts have only gone as far as to allow DNA collection after conviction. This means that the issue is almost certain to head to the Supreme Court.

Some privacy advocates claim that this puts us on an inevitable slide to something like mandatory DNA testing at birth, so that every single American will eventually be in a DNA database. Obviously, this is a serious concern. However, I think that the privacy concerns involved in creating a DNA database are a little overblown.

After all, DNA is really just a way of identifying a person, like fingerprints. It just happens to be far, far more accurate than fingerprints, and it’s much more difficult to eliminate detectable levels of DNA from a crime scene (a single hair, a speck of blood, or flake of dead skin can be enough to identify a person) than it is to eliminate fingerprints. Obviously, this makes DNA a very good way to identify a person. And, it’s standard procedure to take a person’s fingerprints when they’re arrested.

And, like DNA, fingerprints are used by the police solely to confirm a person’s identity.

Privacy advocates do raise an important point, however: a person’s DNA can reveal far more about that person than just their identity. It can also reveal if the person has any genetic diseases, or genetic predisposition to diseases, such as cancer, heart disease, and stroke, among many others. This is a major privacy concern, of course.

However, it should be noted that DNA tests that are used to ascertain identity only look at so-called “junk” DNA – long sections of the gene sequence that serve no apparent purpose, and cannot reveal much information about a person, other than their identity. Of course, if you take a DNA sample (using blood, a cheek swab, etc.), you have access to their entire genome, so sensitive information can still be accessed.

Obviously, there would need to be strong safeguards in place to prevent this type of information from being exploited. Exactly how the safeguards would work isn’t clear. I have no idea if this is possible, but perhaps only the gene sequence (which can be easily represented as a series of letters) necessary to identify a person could be digitized, and the rest discarded. Afterwards, the biological sample that was used to collect this information could be destroyed.

I’m sure that some people who are far smarter than I am could figure out other methods for protecting a person’s genetic privacy.

However the Supreme Court rules, this story goes to show, if we didn’t already know, that the 20th Century is long over, and the 21st is well underway. Unfortunately, in many respects, our legal system is still mired in the 20th Century. While it has caught up in many ways, the fact that it is still wrestling with issues such as this shows that it still has a lot of catching up to do. Not that it should dispose of these issues hastily, of course.

Adult Adoptions on The Rise

According to MSNBC and the Family Law Professor Blog, instances of adults legally adopting other adults have gone up.

I have to admit, when I first read that story, I found the whole idea of an adult legally becoming the “child” of another adult a little strange, and kind of creepy. I couldn’t really place my finger on why I felt that way. Maybe it’s because of the terminology used in these cases: the adult being adopted is often referred to as the “child” of the person(s) adopting them. It seems as if they’re trying to crawl back into the womb. Of course, on a rational level, I know that there are many good, practical reasons for adults to adopt another adult.

I have a few guesses as to why adult adoptions have increased, but I should stress that they’re just educated guesses. First, the economy continues to sputter, and doesn’t look like it will be firing on all cylinders any time soon. Many young adults, especially recent college or trade school graduates, are barely making ends meet, and lack any sense of economic security. If this person’s parents are deceased, or out of the picture for some other reason, it’s not inconceivable that an older friend might legally adopt them, in order to provide a sense of security. This is particularly likely if the adopter is estranged from their children, or never had children of their own.

Being the legal child of a person lets you more easily inherit a portion of that person’s assets if they die without a will. It also allows them to make medical and financial decisions on your behalf, if you become incapacitated, and allows you to do the same for your adoptive parents.

Another reason for the apparent increase in adult adoption is the fact that most people are becoming less rigid in how they define “family,” and the notion of creating a new family from scratch has become a bit more acceptable. I honestly see nothing wrong with this. If home is where the heart is, why can’t family be the same?

Another very important reason why adult adoption is becoming more popular is that most states allow adults to legally adopt other adults with relative ease. However, the majority of states don’t offer any legal recognition for same-sex couples.

However, if a person is legally the child of another, they are entitled to many of the same legal rights and obligations, with respect to the adopter, that a spouse would be. For example, under the laws of intestacy (when a person dies without a will), the spouse is usually the first person in line to inherit the decedent’s assets. However, if there is no living spouse, the decedent’s children are next in line. So, in an adult adoption situation, if the adopting partner died without a will, his or her surviving partner would be able to inherit the estate, since they are legally the partner’s child (assuming the partner isn’t married to another person).

Furthermore, in a legal parent-child relationship (in which both parties are adults), the parties can make legally-binding decisions for one another, in the event that one of them becomes incapacitated and unable to make or express such decisions. This is very important in the medical context, when one partner sometimes has to make medical decisions on the other’s behalf. This is a right that most married couples take for granted, but which same-sex couples in most states often have to jump through hoops to acquire these rights. Sometimes, adoption is one of the only options available to guarantee these rights.

Finally, an adult might adopt another adult because the person being adopted is severely disabled, and that person’s natural parents are unable to take care of him or her. This usually makes it much easier for the adopted parents to make decisions for their adopted child.

While most states allow adult adoptions, some of them only allow it under certain circumstances. For example, some states do not allow adult adoption unless the adoptee is disabled, and unable to become self-sufficient.

However, in most states, there are very few conditions. In many cases, all that’s required is the consent of the adult being adopted. Adopting a child is much more difficult, since, under the law, children generally cannot make their own legally-binding decisions. So, the state has a very strong interest in ensuring that the adoption is in the child’s best interests, so the prospective parents must go through a long list of background checks, home inspections, and other hurdles before they’re allowed to adopt a child. Because adults are presumed capable of making their own decisions, these hurdles don’t generally exist in adult adoptions.

It should be noted, however, that the law doesn’t look favorably upon adult adoptions that are clearly motivated by nothing but financial gain, or an attempt to defraud another party. In such cases, a court might not recognize the adoption.

Once Again, Online Activity Has Real-Life Consequences

If you’ve been paying any attention to the news lately, you’ve probably heard

about a group of hackers calling themselves “Anonymous” have been terrorizing and annoying (mostly annoying) the U.S. government, and large companies such as PayPal and Despite the name of the group, it appears that some of their members aren’t so anonymous after all (also reported here). I’ve written several times before about online conduct having real-life consequences. I don’t know when people will eventually learn this simple fact. It might happen someday, but I’m not holding my breath for it to happen anytime soon.

The FBI has arrested over a dozen people across the country, most of them in their 20s, and at least one of them being only 16, for various computer-related crimes. I think it’s interesting that these things always seem to happen during the summer. School’s out, kids. Turn off the computer and go play outside! Hey, you might even get to kiss a girl!

Perhaps the government could minimize computer crime by starting a program that teaches adolescent computer nerds basic social skills, and enrolls them in dating services. But I digress.

This is, of course, a serious issue. For some background, these hacking attacks started when a website known as Wikileaks, which is dedicated to making secret government and corporate information available to the public, released hundreds of thousands of diplomatic cables sent and received by American diplomats around the world. While most of the information contained in these cables did not endanger national security by being released, it was clearly not intended for public consumption, and contained some pretty embarrassing statements made by some American diplomats about foreign leaders. Of course, for diplomacy to be effective, some communications need to be confidential, so people can speak candidly. I personally believe that these leaks did little to promote government transparency, and did a great deal of damage to American diplomatic efforts.

Anyway, a few websites, like PayPal and Amazon, stopped doing any type of business with Wikileaks after this fiasco. Apparently, the kids in “Anonymous” decided that they supported Wikileaks, and launched attacks known as “directed denial of service” (DDOS) attacks. Basically, they use an army of computers affected with malware that lets a third party surreptitiously control them (known as a “botnet”) to send massive amounts of data to the servers hosting a website. Because the data comes from thousands of different IP addresses, there’s no simple way to filter this traffic. This overload of data on the servers causes a website to run very slowly, or go down altogether.

Attacks on PayPal and Amazon brought the sites down for several hours. Offshoots of this group have begun launching similar attacks on the websites of government agencies and other large corporations. And a few attacks have also led to the theft of sensitive information (such as the hacking that brought down the PlayStation network for several weeks, and stole the credit card information of hundreds of thousands of users, for which Anonymous also took credit).

The problem is that these attacks are actually quite easy to orchestrate, and while some knowledge of computers is required to execute them, it doesn’t take much. This is because they can often be accomplished with software tools developed by far more tech-savvy hackers, and made available for free on the Internet.

So, there is a whole generation of young people who know just enough about computers to get themselves into trouble, but not enough to understand the damage they can do, or to avoid getting caught.

I’ve blogged before about how laws against unlawful access to computer systems can be abused (leading to criminal charges against employees who do some online shopping at work, for example), but this is obviously a case in which these laws are being applied as intended.

But, more to the point of this post, I hope that these arrests drive home the fact that the law applies on the Internet. This is not a new concept. If it’s illegal to do something in the physical world, it’s probably illegal to do it online, too. And now that many businesses operate almost exclusively on the Internet, online misbehavior can do real and serious economic damage, actually harming the lives of real people.

Hopefully, the next generation of Internet users – those who never knew a world without it – will have a better understanding that the Internet affects real life, simply because it will be such an integral part of their lives.

“Caylee’s Law” Gaining Steam in State Legislatures

If you haven’t been living under a rock for the last several months, you’re probably aware that Casey Anthony was just acquitted of all charges (except a few relatively minor ones related to lying to the police) in the death of her two-year-old daughter, Caylee. Of course, she was convicted in the court of public opinion long ago. Many people passionately believe that Casey Anthony got away with murder.

Personally, if I were forced to make a guess, I’d say that she probably had something to do with her daughter’s death. However, proving that “she probably had something to do with Calyee’s death” is a far cry from proving beyond a reasonable doubt that she killed her daughter. Therefore, given the evidence that the prosecutor was able to produce, the jury was right to find her not guilty, even if they strongly suspect that she was guilty. We have a high standard of proof in criminal cases for the specific reason of making convictions difficult to obtain. This is supposed to make it highly unlikely that an innocent person will be convicted. Of course, it necessarily means that some guilty people go free. But most people agree that it’s far better for a guilty person to go free than for an innocent person to be punished (Ben Franklin said “It is better one hundred guilty persons should escape than one innocent person should suffer.”).

Anyway, not letting a good public outcry go to waste, state legislatures are scrambling to pass legislation that they’re referring to as “Caylee’s Law.” Most of the proposals are in response to the fact that Casey Anthony waited over a month after her daughter’s disappearance before reporting her missing. These laws would make it a crime for parents or legal guardians to fail to report the disappearance or death of a child within a certain period of time. For example, one proposal would require parents to report the death of their child within 1 hour of the death being discovered, and the disappearance of a child within 24 hours.

These all seem like things that the vast majority of parents would do anyway, if they were faced with the tragedy of a dead or missing child. It’s not likely that laws like this would prevent parents who are inclined to harm their children from doing so. Though, I suppose that if such a law existed at the time of Caylee Anthony’s disappearance, Casey Anthony could, if nothing else, have been convicted under it, even if she were still acquitted of murder. That might have been some comfort to the armchair pundits who are still screaming for blood, but meeting the expectations of the masses with respect to a high-profile case is not exactly the primary goal of the criminal justice system.

Furthermore, the article linked above mentions a petition to pass a federal version of this law. Besides being just as ineffective as similar state laws are likely to be, there’s another problem with the federal law: it’s almost certainly unconstitutional.

There’s simply no way that the Constitution gives the federal government the power to regulate such basic, personal conduct. Remember, the constitution created a federal government of enumerated powers. This means that the government cannot do anything which the Constitution does not explicitly grant it to do.

Now, if Congress were to pass such a law, it would have to rely on the Commerce Clause of the Constitution to support it. The Constitution gives Congress the power to regulate interstate commerce. Over the last several decades, the Supreme Court has interpreted this provision to regulate virtually any economic activity that has an impact on interstate commerce. This has given the federal government the broad regulatory power it enjoys today. This allows the federal government to regulate individual economic acts which, by themselves, do not affect interstate commerce, but which can have a significant impact in the aggregate.

However, the Supreme Court has drawn the line at non-economic activity. It is much harder for the federal government to regulate non-economic activity under the Commerce Clause. Generally, to regulate non-economic activity under the Commerce Clause, single instances of the activity must have an impact on interstate commerce. Aggregate effects of non-economic activity cannot be considered. Obviously, the “act” (really, it’s an omission) of not reporting a missing child is a non-economic activity, and it’s highly unlikely that a single instance would have any impact whatsoever on interstate commerce.

Of course, the writers of the petition probably didn’t consider the constitutional implications of the law they’re proposing. Also, they probably also didn’t consider the fact that it would likely be much easier to get individual states to pass these laws, rather than the federal government.

Even though they wouldn’t raise any constitutional issues, passing these laws at the state level seems ill-advised. As I mentioned earlier, they aren’t likely to deter somebody who is already inclined to harm their children. Likewise, enforcing them would be difficult, and could lead to some unfair results.

While such situations are rare, what would happen if a child is kidnapped for ransom, and the kidnapper tells the parents that he’ll kill the child if the parents notify the police? Suppose the parents panic, and wait longer than the maximum period of time before going to the police. Would they be held criminally liable? While most agree that, if someone is kidnapped, calling the police is the first thing you should do, no matter what the kidnapper says, could you really blame the parents for panicking in such a situation?

Really, this just goes to show, once again, that people need to think before legislating. The entire Caylee Anthony ordeal is extremely tragic. And the ensuing media circus did nothing in the service of that girl’s memory. Let’s not do her a further disservice by naming asinine laws after her.

Exciting New Police Technologies Used in Criminal Investigations

Lately a whole slew of new technologies are being introduced for use by the police.  These new technological advancements are taking criminal investigation techniques the next level and beyond.  They can range from mere instrumental upgrades to sensory enhancements that would even make Tony Stark envious.

Some of these new criminal investigation tools are raising concerns for ordinary citizens, mostly in the area of privacy.  As we have seen with the introduction of technology in other areas of life (such as TSA body scans), the decent of the future upon us is not always welcomed by everyone.

Let’s take a look at some of the new police technology that is slowly making its way into criminal investigations:

Facial Recognition & Iris Scanning devices:  New facial recognition technology would allow police to take a snapshot of someone’s face in public from as far away as five feet.  They could then quickly scan the photo using a device that attaches to an iPhone, which compares the results to criminal databases.  The device can be also be used to scan a person’s iris for recognition purposes.

Some say that such “facial profiling” can lead to more accurate identifications and minimize practices like racial profiling.  However, many also feel that facial profiling is dangerous and the equivalent of nabbing someone’s fingerprints in public without their consent.

X-Ray Vans:  Unmarked vans containing powerful x-ray equipment have already been deployed in some jurisdictions.  The x-ray vans allow the police to peek inside of vehicles, houses, and other buildings.  The resulting x-ray images are comparable to those yielded by TSA airport body scans.  Recent reports state that the vans sometimes reveal illegal migrants being transported in trucks.

The x-ray equipment used in such vans has already been in use for several years now, mainly at checkpoints for trucks engaged in industrial commerce.  However, their use in residential neighborhoods for criminal investigation purposes is unsettling, not just in terms of privacy, but also because the vans emit x-ray radiations.

GPS Tracking Darts:  A new device allows police to shoot a small sticky dart containing a micro GPS tracker from the grill of their patrol car (Batman style) onto a suspect’s vehicle.  This allows both the patrol officer and the precinct to monitor the vehicle’s location from a distance, undetected.  Police report that it has been hugely successful in apprehending fleeing suspects and smugglers.

The police should have at least some level of reasonable suspicion before using the dart tracking system, which is called the “StarChase Pursuit Management System”.  The Supreme Court is set to issue a ruling sometime next year regarding the use of GPS tracking without a warrant.

Website Evidence:  Ok, so the monitoring of online internet data for criminal evidence purpose is not exactly “new” news.  We’re all familiar with what is now being called “Facebook” evidence– information gleaned from social network sites which contradict witness testimony.

However, the scope of websites that police, attorneys, and judges can scour for information is rapidly expanding, and other sites are now being hit up.  The boys in blue are growing fond of online sales sites such as eBay and Amazon, searching in particular for the sale of stolen goods, confiscated items, and illegal contraband (such as Michael Phelps’ bong).

These new technologies might actually help with police safety and efficiency, but they really do need to be used carefully.  For example, police still need to comply with warrant requirements where they are necessary.  And they still need to follow 4th Amendment rules regarding people’s reasonable expectations of privacy.

Early cases such as Katz vs. U.S. and Kyllo vs. U.S. laid the legal framework for the limits of high-tech police technology (which, back then, consisted of wiretaps and infrared thermal imaging).  One of the guiding legal principles in these cases is that warrantless police searches through high-tech means could be unconstitutional if such technology is not in use in the general public.

The reasoning is that if the public has access to such devices, then one does not really have a “reasonable expectation of privacy” from the devices, since anyone would be able to use them, not just the police.  For example, one reason why Facebook evidence is acceptable is because it is in use by the general public.  In contrast, police might need a warrant for devices that are less accessible to the public, such as the GPS darts.

This brings up a major, major point with these newer police technologies- in some case we actually don’t know whether they are “in use in the general public” or not.

To illustrate, the company that manufactured the x-ray vans mentioned above stated that they have already sold over 500 units.  However, the company isn’t fully disclosing who they sold them to.  Now that is both disappointing and a bit scary.  Not only does that make obscure the legal standards, to me that’s just plain dangerous.  We don’t know whether they sold them to police, to terrorist groups, or to some overly enthusiastic pranksters.

That being said, one thing is sure- these new police technologies need to be regulated much more tightly than they currently are.  To me it is absolutely unacceptable that such technology might fall into the hands of the wrong people.  Even worse though, is that the lack of clearer guidelines on police technology leaves the public in the dark with regards to their privacy rights.

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