ACLU Comment on Apple/Google COVID-19 Contact Tracing Effort

PHOENIX — In a 7-0 decision, the Arizona Supreme Court ruled that a warrant is required to extract and analyze people’s DNA, saying that a person’s limited consent to a search of biological material for a specific purpose—in this case, a blood alcohol test for a DUI arrest—does not overcome that requirement. The ACLU and the ACLU of Arizona filed a friend-of-the-court brief in State v. Mitcham, arguing the government cannot genetically test biological material it already has in its possession—whether that’s blood taken from newborns to test for diseases or swabs collected from sexual assault survivors—to investigate the donors for a crime without first obtaining a warrant. In the decision, the court wrote that “in reaching this conclusion, we emphatically reject the State’s position that it was free to analyze Mitcham’s blood in any way it pleased simply because the State lawfully possessed the blood vials.” “Government analysis of our DNA can expose detailed information about our identity, appearance, family relationships, medical conditions, and more. We don’t consent to sharing all of that information each time we involuntarily shed our DNA or consent to a blood draw. The government’s argument in this case was a privacy nightmare,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “We are greatly heartened by the Arizona Supreme Court’s decision to preserve the privacy of our sensitive genetic information.” In 2015, during a DUI arrest, the defendant in this case consented to the government collecting a sample of his blood solely to test it for blood-alcohol content, and was advised that the sample would be destroyed after 90 days. Instead, law enforcement held on to this sample for three years, at which point it used it for a completely different purpose—to extract and analyze his DNA, without a warrant or consent—while investigating another crime. Had the court accepted the government’s rationale here, all of us who consent to a biological sample collection, at any point in time, for any purpose, to any government entity, could have been subject to a warrantless DNA search after the fact. “Our DNA can reveal so much about us that our genetic privacy must be protected,” said Jared Keenan, legal director of ACLU of Arizona. “The Court’s decision is vital to protecting the strong constitutional rights that keep all Arizonans’ information safe from warrantless searches and unconstitutional intrusion.”

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