Posted by Eugene Volokh:
Judge Kozinski on slippery slopes and privacy:
As I mentioned below, a Ninth Circuit en banc panel has just [1]upheld
the collection of DNA from people who are on probation after having
been convicted of a crime. Judge Kozinski was one of the dissenters,
and one of his arguments was that the majority's result could lead to
requirements that the DNA of everyone, not just of convicted felons,
be kept in a government-run database.
This is a classic slippery slope argument -- the seemingly appealing
decision before us today (appealing because it's limited to criminals)
can lead to a much more troublesome decision in the future. Here's how
he crafts the argument (most citations omitted):
This isn't an issue we can leave for another day. Later, when
further expansions of CODIS are proposed, information from the
database will have been credited with solving hundreds or thousands
of crimes, and we will have become inured to the idea that the
government is entitled to hold large databases of DNA fingerprints.
This highlights an important aspect of Fourth Amendment opinions:
Not only do they reflect today's values by giving effect to
people's reasonable expectations of privacy, they also shape future
values by changing our experience and altering what we come to
expect from our government. A highly expansive opinion like the
plurality's, one that draws no hard lines and revels in the boon
that new technology will provide to law enforcement, is an engraved
invitation to future expansion. And when that inevitable expansion
comes, we will look to the regime we approved today as the new
baseline and say, this too must be OK because it's just one small
step beyond the last thing we approved. See Eugene Volokh, The
Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1077-1114
(2003). My colleagues in the plurality assure us that, when that
day comes, they will stand vigilant and guard the line, but by then
the line -- never very clear to begin with -- will have shifted.
The fishbowl will look like home.
Anyone who doubts that CODIS will expand, prodded by the voracious
appetite of law enforcement, has only to consider the growth of
fingerprint databases. In 1924, when J. Edgar Hoover became head of
what was to become the FBI, the Justice Department's fingerprint
files contained only prints of those who had at some point passed
through the criminal justice system. Hoover, who favored universal
fingerprinting, moved to expand the database and aggressively
lobbied local law enforcement officials to submit prints to the
FBI. He took a further step in 1929 and began fingerprinting all
civil servants. The Alien Registration Act, passed in 1940,
eventually delivered over a million prints to the FBI. Today, the
FBI's Integrated Automated Fingerprint Identification System
contains the fingerprints of over 47 million people, including
prints "acquired related to a background check for employment,
licensing, and other non-criminal justice purposes" and "submitted
voluntarily by state, local, and federal law enforcement agencies."
Several states require fingerprints of all drivers' license
applicants. California all by itself has the prints of over 22
million drivers' license holders on file, as well as the prints of
lawyers, and certain welfare recipients. Not all these fingerprint
databases are currently in searchable form, but given our improving
ability to store biometric identifiers electronically, it's only a
matter of time.
Because the great expansion in fingerprinting came before the
modern era of Fourth Amendment jurisprudence ushered in by Katz v.
United States, 389 U.S. 347 (1967), it proceeded unchecked by any
judicial balancing against the personal right to privacy. As a
consequence, we have become accustomed to having our fingerprints
on file in some government database. The suggestion that law
enforcement agencies, including the FBI, must destroy the
fingerprints of those who were wrongfully arrested and booked, and
were later released, would today be greeted by reactions ranging
from apathy to a disdainful snigger. Why? Because we have come to
accept that people -- even totally innocent people -- have no
legitimate expectation of privacy in their fingerprints, and that's
that.
(Judge Kozinski also points out that while the mandated DNA collection
applies only to people on probation after having been convicted of a
crime, the DNA will be retained not just during their probation, but
also after the probation is done and even if all their civil rights
are legally restored.)
Of course, the slippery slope argument is forceful only if you think
the bottom is bad. Judge Kozinski does: "Perhaps my colleagues in the
plurality feel comfortable living in a world where the government can
keep track of everyone's whereabouts, or perhaps they believe it's
inevitable given the dangers of modern life. But I mourn the loss of
anonymity such a regime will bring." I probably disagree (for reasons
that I don't have the time to get into now).
But I think the slippery slope argument is indeed powerful, because
many people would indeed dislike what's at the bottom of the slope.
The real question is how to convince those people (who approve of such
restrictions on convicted criminals' privacy but would disapprove of
such restrictions on law-abiding citizens' privacy) that the slippage
is indeed likely to happen -- that this result they like on its own
should indeed be rejected for fear that it will lead to something
worse in the future. Kozinski's opinion strikes me as an excellent
example of how such a concrete, forceful argument can be made (and not
just because of the law review article he cites).
Oh, and I think "the fishbowl will look like home" line is a classic.
References
1.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BADFFFC872DBA30288256EF300802EBD/$file/0250380.pdf?openelement
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