On the discomfort of agreeing with Antonin Scalia….

So, twice in recent weeks I have found myself in the uncomfortable position of agreeing with Supreme Court Justice Antonin Scalia in cases involving DNA (my actual area of expertise). The first example, ten days ago, the SCOTUS decided that it was acceptable for the police to collect DNA samples from individuals who have been arrested (not convicted, mind you, but arrested) for “serious crimes”. Antonin Scalia dissented, as did I. In the second case, decided just this morning, the SCOTUS unanimously decided that human genes cannot be patented. And, again, I concur.

So…in the first case: the majority opinion reads, in part: “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. . .” The entire ruling is available here.

It’s this part that bothers me: “like fingerprinting and photographing”. DNA is NOT like fingerprinting and photographing. For a start, your face and fingerprints have never been assumed to be private, based largely on the fact that, to be a human interacting with other humans, you leave images of your face and fingerprints everywhere. Having people see you, and touching things, these are not assumed to be private acts by reasonable people.

In addition, if we assume that DNA is similar to fingerprints, in that it is a unique personal marker that, when used correctly, can be used to positively identify a specific human,  it is also true that DNA is a far more powerful “identification tool” than fingerprints. DNA can be used to tell what race a person likely is…to identify their relatives…to tell whether they can digest lactose…to tell if they are at high risk for a variety of diseases…I could go on. And on. But the point is, NONE of this is true of fingerprints, which can be used for one thing: to match a suspect with a piece of evidence. DNA is much more than that, and can reveal much more inherently private information.

And Justice Scalia agrees with me. (I get chills just writing that, and not the good kind.) In his dissent, he wrote: body searches at the time of an arrest are valid because police are looking for evidence relevant to the crime that a person is suspected of committing. DNA sampling takes that a step further by attempting to find evidence of other wrongdoing that is not related to the crime the person has been arrested for and “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”

He’s right. The majority are wrong. And the only comfort I can take in that is the fact that Justice Scalia must be equally horrified to find himself in a minority opinion with Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

On to today’s far less controversial (but upsetting to lots of local companies) decision: you can’t patent human gene sequences. Because they’re products of nature, not human inventions. Seems like a no-brainer, right? Many biotech companies will disagree, however, stating that not being able to patent gene sequences to prevent their use by competitors will remove the incentive for identifying and characterizing those sequences in the first place.

I find that argument pretty weak, largely because the decision still allows for “use” and “synthetic variants” – meaning if a company develops a test using the sequence, that test is patentable. Or any synthetic alteration of the gene made in lab (say a specific mutant version, or potentially even a cDNA sequence) may still be patentable. It’s just the gene itself, made by natural selection, not human invention, that isn’t patentable. You can’t tell the company next door that the BRCA-1 gene is “yours”, essentially.

This was a unanimous decision, so it’s a bit easier for me to swallow being on the same side with Scalia here. After all, there’s only one side, it seems. Legally.



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2 responses to “On the discomfort of agreeing with Antonin Scalia….

  1. I thought it was amusing how Scalia excused himself from part of the major opinion on gene-patenting because he didn’t understand the science. I don’t know that I’ve ever seen that before.

    I’m glad, though, that it was a unanimous decision and maybe finally puts this thing to rest. I’ve spent way too much time in the last decade trying to circumvent crappy gene patents. I am glad also that they left the synthetic cDNA and its uses fair game.

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