Pivotal DNA Privacy Case Gets Supreme Court Hearing

Photo: Courtesy of Supreme Court

The Supreme Court on Friday agreed to review a major genetic-privacy case on whether authorities may take DNA samples from anybody arrested for serious crimes.

The case has wide-ranging implications, because at least 21 states and the federal government have regulations requiring suspects to give a DNA sample upon arrest. In all the states with such laws, DNA saliva samples are cataloged in state and federal crime-fighting databases.

Without comment, the justices opted to take on an April decision (.pdf) from Maryland’s top court, which said it was a breach of the Fourth Amendment right against unreasonable search and seizure to take, without warrants, DNA samples from suspects who have not been convicted.

The Maryland Court of Appeals, that state’s highest court, said that arrestees have a “weighty and reasonable expectation of privacy against warrantless, suspicionless searches” and that expectation is not outweighed by the state’s “purported interest in assuring proper identification” of a suspect.

The case involves Alonzo King, who was arrested in 2009 on assault charges. A DNA sample he provided linked him to an unsolved 2003 rape case, and he was later convicted of the sex crime. But the Maryland Court of Appeals reversed, saying his Fourth Amendment rights were breached.

Maryland prosecutors argued that mouth swabs were no more intrusive than fingerprinting, but the state’s high court said that it “could not turn a blind eye” to what it called a “vast genetic treasure map” that exists in the DNA samples retained by the state.

The court was noting that DNA sampling is much different from compulsory fingerprinting. A fingerprint, for example, reveals nothing more than a person’s identity. But much more can be learned from a DNA sample, which codes a person’s family ties, some health risks and, according to some, can predict a propensity for violence.

The issue before the justices does not contest the long-held practice of taking DNA samples from convicts. The courts have already upheld DNA sampling of convicted felons, based on the theory that those who are convicted of crimes have fewer privacy rights.

But the U.S. Supreme Court has previously ruled that when conducting intrusions of the body during an investigation, the police need so-called “exigent circumstances” or a warrant. For example, the fact that alcohol evaporates in the body is an exigent circumstance that provides authorities the right to draw blood from a suspected drunk driver without a warrant.

The justices are to hear the Maryland case in the coming months.

Canadian Supreme Court Invalidates Viagra Patent

Photo: Simon Willison/Flickr

The Supreme Court of Canada is invalidating Pfizer’s patent on the popular erectile-dysfunction drug Viagra for failing to openly disclose the drug’s active ingredient, as required by Canadian intellectual property law.

The 7-0 decision Thursday to open Viagra to competition ahead of its 2014 patent expiration underscores a major difference in how the Canadian and United States courts are interpreting patent laws.

Both nations have so-called “patent bargains” that require the disclosure of a drug’s chemical compounds in enough detail so that scientists can replicate it and learn from the invention, thus benefiting society. In exchange, the inventor, in this case Pfizer, gets the exclusive rights to market the invention for a limited period.

But “sufficiency of disclosure lies at the very heart of the patent system,” the Canadian high court ruled Thursday, and “adequate disclosure in the specification is a precondition for the granting of a patent.”

The court said Pfizer, based in New York, broke that bargain. The ruling came in a lawsuit brought by Israeli-based Teva Pharmaceutical Industries. The justices said Pfizer failed to disclose that sildenafil was the active compound, while other listed compounds in the patent were not effective in treating erectile dysfunction.

The decision by the Canadian court is at odds with U.S. courts, which don’t invalidate patents for the same reason.

A U.S. federal judge in Virginia upheld Pfizer’s U.S. patent for Viagra, which expires in 2019, in another lawsuit brought by Teva. Teva tried to invalidate the patent, arguing in part that the discovery for erectile dysfunction was not patent-worthy, and that Pfizer had withheld information from the U.S. patent office.

That same year, in another case, the U.S. Court of Appeals for the Federal Circuit ruled in a precedent-setting decision that patents may only be declared unenforceable if the withheld material affected the patent office’s decision to grant a patent.


U.S. WikiLeaks Criminal Probe ‘Ongoing,’ Judge Reveals

WikiLeaks founder Julian Assange gestures in August after his statement to the media and supporters on a balcony of the Ecuadorian Embassy in central London. Photo: AP

A 2-year-old federal grand jury probe into the secret-spilling website WikiLeaks is still “ongoing,” a federal judge in Virginia revealed Wednesday in a brief ruling.

It’s the first official confirmation since WikiLeaks founder Julian Assange was granted asylum by the Ecuadorean government in August that the grand jury investigation is continuing.

U.S. District Judge Liam O’Grady of Alexandria, Virginia, noted the investigation in a legal flap surrounding three WikiLeaks associates who lost their bid to protect their Twitter records from U.S. investigators. The three had asked the court to unseal documents in their case. In May, O’Grady ordered the documents remain under seal for six months. On Wednesday he renewed that order, based on a government filing.

“For reasons stated in the memorandum of the United States, unsealing of the documents at this time would damage an ongoing criminal investigation,” O’Grady ruled. (.pdf)

The Justice Department served Twitter with a records demand in December 2010 as part of the investigation into WikiLeaks.

The targets of the records demand are WikiLeaks’ official Twitter account, and the accounts of three people connected to the group: Seattle coder and activist Jacob Appelbaum; Birgitta Jonsdottir, a member of Iceland’s parliament; and Dutch businessman Rop Gonggrijp. Jonsdottir and Gonggrijp helped WikiLeaks prepare the release of a classified U.S. Army video published last year, “Collateral Murder,” and Appelbaum was the site’s U.S. representative.

The court order Twitter complied with sought the full contact details for the Twitter accounts (phone numbers and addresses, even though Twitter doesn’t collect these — only an e-mail address), account payment method if any (credit card and bank account number), IP addresses used to access the account, connection records (“records of session times and durations”) and data transfer information, such as the size of data files sent to someone else, and the destination IP (though this isn’t technically possible in Twitter).

The Electronic Frontier Foundation and the American Civil Liberties Union unsuccessfully fought the Twitter order, arguing in part that it violated the account holders’ First Amendment rights. The groups lost, and the judge refused to stay his order pending appeal.

The order requiring Twitter to turn over information also showed that the authorities were seeking other information, including mailing addresses, billing information, email addresses, credit card and bank account numbers, and IP address information from other internet service providers.

The ACLU and EFF sought to unseal the government’s request for these records, but Judge O’Grady allowed the government to keep under seal those court orders.

The only person who has been charged with any crimes connected to WikiLeaks, is former Army intelligence analyst Bradley Manning, whose long-delayed trial is scheduled for February. Assange remains holed up in the Ecuadorian Embassy in the United Kingdom. Ecuador has granted Assange asylum, claiming that if Assange is returned to Sweden to face questioning in a sex crimes investigation he’ll be shipped to the United States to face prosecution in connection to WikiLeaks.