The New York Times is reporting that DNA databases built and maintained by the Federal Bureau of Investigations (F.B.I.) and various states are quickly increasing in size and use.

The debate over whether persons convicted of felonies should have their DNA collected and stored by law enforcement has long been considered decided. Additionally, the collection of fingerprints of persons arrested (but not necessarily convicted) of crimes has also long been considered decided.

However, what about the collection of DNA from persons merely arrested or detained, but not convicted? The F.B.I. and 15 states are going to do just that starting this month, with a vast majority of those persons being suspected illegal immigrants.

The National DNA Index System, initiated under the E-Government Act of 2002, P.L. 107-347, and the accompanying guidelines issued by the Office of Management and Budget (OMB) on September 26, 2003, already contains information on 6.7 million people. The rate of collection is expected by the F.B.I. to increase from around 80,000 persons per year to 1.2 million people per year by 2012, a 17-fold increase, according to The New York Times.


According to the article, 35 states require minors to provide DNA samples upon convictions, with some of those states require samples upon arrest. Some 16 states go even further, requiring samples DNA samples from any person convicted of a misdemeanor.

Taking DNA samples is nothing new for residents in Britain. Approximately seven (7%) of Britain residents are in the national DNA database, with approximately one-fifth of those persons not even having a criminal record. 

These numbers become further controversial when you consider that the House of Commons reports that 27% of black residents, and 42% of black males, are in Britain’s database, while only six (6%) percent of persons in the database are white.

Civil liberty experts estimate that practices in the United States may be headed in the same direction, both from a number of persons in the database, as well as in racial disparity.

Mark McCreary is a partner in Fox Rothschild’s Corporate Department, specializing in privacy and Internet law. If you have questions regarding this post, or any other privacy matter, you may contact Mark at (215) 299-2010 or