History and Background
California has long collected DNA from people convicted of serious felony offenses, but in 2009 the state began mandating DNA collection for every single felony arrestee. Once these samples are collected, the DNA is analyzed and uploaded to the nationwide Combined DNA Index System, or “CODIS,” which is shared with law enforcement across the U.S. The DNA profiles remain in the state and national database indefinitely — even those from people who were later determined to be innocent.
More than a third of all people arrested in California in 2017 on suspicion of felony offenses were released and never charged, had their charges dismissed, or were acquitted. Innocent people whose DNA profiles remain in the databases have been mistakenly arrested, charged, or even imprisoned based on crime-lab and other errors that found a supposed CODIS match between their profile and DNA found at a crime scene.
Innocent people (and those ultimately convicted of misdemeanors) can theoretically get their sample removed from the database. Most people don’t know this; law enforcement does not have to tell them, and the process requires a court order. Only a tiny fraction of those eligible for relief actually have their DNA expunged from the system: fewer than 1,500 of the more than 750,000 eligible.
Two social justice organizations—the Center for Genetics and Society (CGS) and the Equal Justice Society (EJS)—and an individual plaintiff, Pete Shanks, have filed a suit arguing that the state is violating the California Constitution’s privacy protections, which are meant to block overbroad collection and unlawful searches of personal data. The California right to privacy requires the government to expunge DNA samples and profiles taken from arrestees who were never charged or whose charges have been dismissed.
February 25, 2019: The State of California files Demurrer, moves to dismiss the case.
March 25, 2019: CGS files Opposition to Demurrer.
April 8, 2019: State files Reply.
May 1, 2019: EFF and Michael T. Risher argue against dismissal before San Francisco Superior Court Judge Ethan Schulman.
August 12, 2019: The court granted the government's demurrer, meaning that the case will be dismissed.
October 1, 2019: The court issued a final judgment dismissing the case.
November 25, 2019: Michael T. Risher and the American Civil Liberties Union (ACLU), which replaced EFF as co-counsel, filed a Notice of Appeal.
- A Conversation With California’s New Attorney General (New York Times, April 28, 2021)
- Update on Legal Challenge to California’s DNA Retention Policy (CGS, May 2, 2019)
- Judge Poised to Advance Suit Over DNA Collection (Courthouse News Service, May 1, 2019)
- California Court Urged to Advance Case Against State Retention of DNA Profiles of Innocent People (GenomeWeb, May 1, 2019)
- Center for Genetics and Society v. Becerra (Electronic Frontier Foundation)
- California Shouldn’t Keep DNA from Hundreds of Thousands of Innocent People (San Francisco Chronicle editorial, December 14, 2018)
- Two Databases Filled With the DNA of Innocent People Face Uncertain Fate (WitnessLA, December 13, 2018)
- Social Justice Organizations Files Suit Against the State of California Over its Collection and Retention of Genetic Profiles (CGS press statement, December 10, 2018)