Today, June 3, 2013, The United States Supreme Court decided the case Maryland v. King, upholding a Maryland law that permitted the police to take the DNA of a man arrested for a violent assault as part of standard arrest processing.

I find the case fascinating in part because of the blistering dissent written by Justice Scalia that excoriated the majority for taking a substantial bite out of the 4th Amendment.  To read Justice Scalia's dissent, the majority opinion has charted a clear course for the Government to plunge us all into an Orwellian society where our DNA is virtually up for grabs for the Government to take and use "for the purposes of identification".

In the King case, Mr. King had been arrested in Maryland for a violent assault.  According to Maryland law, the police took Mr. King's DNA as part of their standard arrest processing.

The fact that they took the DNA in itself is the issue in essence, but eventually the DNA taken from Mr. King connected Mr. King to an unsolved violent crime from a number of years earlier.  Mr. King challenged the taking of his DNA upon his arrest as a violation of the Fourth Amendment's prohibition against illegal search and seizure.

The five Justice majority, led by Justice Kennedy held that the taking of Mr. King's DNA as part of the initial arrest processing was proper in that it did not violate the Fourth Amendment.

Justice Kennedy founded his position most firmly in the concept that the actions taken by the police in taking the DNA amounted to little more than taking steps that were necessary to ascertain the identity of the person who they had arrested.  The premise behind Kennedy's position is that the Government is entitled to take reasonable steps to identify the people it arrests for any number of good reasons, including for the safety of the police and for the proper determination of issues related to bail.

Justice Scalia, however, weighs in heavily on this point to dissect Justice Kennedy's argument.  By the time Justice Scalia is done, Justice Kennedy's opinion seems eminently forgettable, almost laughable (if the issues were not so serious).

What is most entertaining is when you learn from Justice Scalia that the Government didn't actually analyze Mr. King's DNA until months after the arrest.  Therefore, Justice Scalia was able to quite correctly ask the unanswerable question "If the Government took the DNA in order to identify Mr. King, who did they think they were dealing with for those first couple of months?"  

As if this doesn't make Justice Kennedy's arguments appear silly enough, Justice Scalia goes on to make the point that in fact, based purely on the fingerprint analysis that the police also did right away, the Maryland authorities had Mr. King's correct name, address, height, and various other pieces of identifying information -- which of course suggests that the need for Mr. King's DNA must have been for something other than "identification".

Justice Scalia also addressed the reaction that I know many people are likely to have to this case - that is, "How can you be opposed to something that seems so tame (taking a DNA swab) from a person arrested for a crime when in this very circumstance it resulted in solving a terrible unsolved crime?  

Part of Justice Scalia's response was to note that Justice Kennedy's analysis could easily apply to a wider range of circumstances than simply the arrest processing of a violent criminal.  Given that the analysis hinged on the Government's interest in being able to identify who it was dealing with for the purposes of maintaining safety, the same argument could be made to take DNA swabs of those stopped for speeding along the street, or those who want to board an airplane.  If the Government demanded DNA swabs of all those detained for traffic infractions or all those who seek clearance to board airplanes, crimes that are currently unsolved would no doubt be solved.  

Likewise, if the police simply searched everyone's vehicles top to bottom without any particular reason other than the value of identifying all those who are driving on public roadways, evidence of criminal activity would no doubt be uncovered from time to time.  Likewise, the police simply searching homes for no reason, might yield evidence of criminal activity from time to time.

Therefore, the fact that in Mr. King's case the Government was able to "hit the jackpot" is more a distraction than proof of anything worth proving.  They key is not whether or not the police were able to solve an unsolved crime.  The key is whether or not we are prepared to live in a society where in this particular situation we are required to surrender some of our most personal information for the Government to keep forever.

Something that Justice Scalia did not particularly address but I found disturbing in Justice Kennedy's majority opinion was Justice Kennedy's confidence that the Government would be good at using the DNA only for the purposes of "identification".  Justice Kennedy dismissed concerns apparently argued that DNA is the most personal of information about us and that it contains detailed information about our health and even the potential that we have to develop certain diseases.  Justice Kennedy dismisses these concerns because he is convinced that the Government can be trusted to do the right thing with this information and only to use the DNA for purposes of making the "identifications" with which he is so obsessed in his opinion.

I would like to know whether Justice Kennedy would be so confident in the ability of the Government to do the right thing with information under the following circumstances:  Suppose the Government had the right to some specific information contained within his personal papers and private daily journals.  I suppose Justice Kennedy would be content with the Government just keeping all of this material and only looking at the parts that the Government were entitled to look at.  Or maybe the Government has the right to some information on his personal computer at home.  Let's just let the Government take Justice Kennedy's home computer and we can all just trust that the Government will only look at the things it is supposed to look at and ignore everything else.

The very idea that the Government will be allowed to keep our DNA and that we can simply trust that the Government will only use our DNA for the purposes of identification for now and in the future is absurd and utterly fails to treat the Government with the healthy suspicion the Constitution requires.

I agree with Justice Scalia that this case is not limited to the case of the guy arrested for a violent assault.  The majority analysis does indeed seem to be ready-made to apply to the rest of us in a host of other circumstances where the Government can lay claim to some need for "identification".

On the day that the DNA databank for all US Citizens is born, if something like that ever comes to pass, historians will rightly be able to point to Maryland v. King and Justice Kennedy's majority opinion as the moment when the path to that end was charted.