DNA Surveillance and Maryland v. King

i'm jeffrey rosen the president of the national constitution center and i'm sitting here with Neil Ketchel former acting Solicitor General of the United States we're here to talk about the Supreme Court privacy & Technology there's a third case we should talk about and that has to do with DNA surveillance in the Maryland and King case the Supreme Court by a divided vote held that it's okay for the cops when they arrest you to swab your cheek sees a sample of your DNA and put it in a database what was the majority's reasoning in that case well the majority reasoned that when you stop someone for an arrest you are entitled to collect information about them that there was a public safety rationale for that indeed the court pointed to the fact that this DNA evidence has you've been used not predominantly to inkle paid someone to say that they're guilty but rather to exculpate people that the information found in these searches tends to show a actually the person we thought did it didn't do it and so they said effectively there is a minimal invasion of privacy it's gesture saliva for a second and this does something important in the real world it solves crimes now there was a vigorous dissenting opinion by Justice Antonin Scalia who compared these cheek swabs to the hated general warrants that Chief Justice Roberts had invoked in the cell phone case he had a very memorable lines about how our hearty forbearers would never have tolerated these royal intrusions into their mouths what was Justice Scalia concerned about and what sort of private information do you think could be revealed by these DNA searches well Justice Scalia's concern is that the government could run amok and use this information in all sorts of ways our DNA has any number of markers that suggest what diseases we might have propensity to there may be ways to use this biological information in other ways and see me you know what drugs a person is consumed or something like that so there is the potential for government abuse Justice Scalia writes a extremely powerful opinion I think the majority's answer is to say Justice Scalia what your concern with is not as much about the constitutionality but the wisdom or the policy behind these searches and maybe there should be limits placed on them and the mention use them willy-nilly but that's really a choice for the political branches to decide for law enforcement to decide and not something we should constitutionalize and take off the table because if Justice Scalia's opinion is adopted even if a hundred percent of the citizens of Maryland want these searches or a hundred percent of the citizens the United States Justice Scalia is a position would be you can't do it no matter what it's off the table in our democracy it is indeed and then Justice Scalia's counter-argument of course is that it was the framers who took off the table the idea of suspicionless searches that are not limited in scope and DNA surges have the potential to reveal so much about us that they're just as bad as the the general warrants that sparked the American Revolution