Appeal against DNA fingerprinting cites ENCODE project

Is DNA fingerprinting unconstitutional? A US Court of Appeals may be about to rule that it is, on the back of recent science.

DNA fingerprinting is a routine part of data collection on those charged with felonies in the US. The "fingerprint" comprises markers ? known as CODIS markers ? that do not code for proteins but help to distinguish individuals from one another.

Some of those fingerprinted say that recording the CODIS markers breaches their privacy, and they have launched an appeals case.

The results of the Encyclopedia of DNA Elements (ENCODE) project ? revealed last month ? may play an important role in the case. The Electronic Frontier Foundation, a digital-rights advocacy group, has volunteered information about ENCODE to the appeal. It says the project's results confirm that non-functioning DNA plays a role in cell behaviour.

Many researchers disagree with the EFF's assessment of the science. It is unusual for single CODIS markers to give any privacy-breaching information, says Ryan Gregory at the University of Guelph in Ontario, Canada.

Nevertheless, there is a distinct possibility that the courts will take the EFF's brief seriously, according to David Kaye of Penn State law school in University Park. "I think there might well be a judge, and maybe more than one, who would refer to it as showing we cannot be secure in assurances that today the CODIS profile has value only in establishing individual identity," he says.

Transcripts from the hearings so far make it hard to tell which way the judges are leaning, Kaye says, because the judges so often play devil's advocate during questioning. But the courts have a history of citing current science in the results, making it likely that the ENCODE results will be discussed in the decision.

"The genetic tests [help] exonerate people," says Gregory, "I would hate to see a backlash because of a misinterpretation of one study."

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