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The Business Implications of DNA Databases

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The Fourth Amendment reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Supreme Court, in a 5:4 decision, Maryland v. King, has approved warrantless DNA testing of arrested criminal suspects. The reasoning of the majority opinion may have business implications involving warrantless administrative searches.

Collected DNA is compared to a database. Of special relevance to business is a statement in the majority opinion that "the fact that an intrusion is negligible is of central relevance to determining reasonableness..." Furthermore, the Fourth Amendment addresses reasonableness and not individualized suspicion. The dissenting opinion began with the statement: "The Fourth amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence." The dissent also reviewed the colonial problem of the general warrant that resulted in the creation of the Fourth Amendment.

While much commentary concerning the DNA opinion will doubtless correctly focus upon the criminally accused individual, history indicates that the Fourth Amendment has a strong connection to searches of businesses. In this age of electronic databases and mandatory information reporting by businesses, as well as individuals, the use of database warrentless searches is likely to increase and may well meet judicial approval in the absence of limiting legislation.

Administrative searches and inspections of businesses without a warrant have been frequently upheld. While this brief comment cannot review the legal framework in depth, business leaders should recognize that the Supreme Court's approval of the warrantless collection of information that is compared to a database has business implications that cannot be ignored.