New Jersey Sued Again For Giving Cops Access To Newborn Babies’ DNA

It appears the New Jersey Department of Health still believes the state’s residents are better served by giving law enforcement another way to dodge the Constitution.

The Department of Health was sued two years ago by the state’s Office of the Public Defender (OPD). That lawsuit targeted the state’s peculiar practice of holding on to newborns’ blood tests for nearly a quarter century and turning these over to investigators who just don’t feel like following the Fourth Amendment rules.

Here’s what triggered that lawsuit:

Plaintiff New Jersey Office of the Public Defender (OPD) recently learned that the State Police has successfully subpoenaed a newborn blood spot sample from the Newborn Screening Laboratory that belonged to a child who is now approximately nine years old. The reason the State Police subpoenaed the sample was so that it could perform a DNA analysis on the sample and tie the child’s father, who became OPD’s client, to a crime that was committed in 1996.

By serving a subpoena upon the Newborn Screening Laboratory, the State Police sidestepped its constitutional obligation to develop probable cause and obtain a warrant so that it could obtain a buccal swab from OPD’s client to perform an analysis of his DNA. By obtaining the child’s blood spot sample from the Newborn Screening Laboratory, it was able to perform a DNA analysis on the child’s blood and then use those DNA results to form the basis of an affidavit of probable cause to obtain a warrant for a buccal swab from OPD’s client. OPD’s client was later criminally charged.

This is a public records lawsuit, filed in conjunction with the New Jersey Monitor after the Department of Health refused to turn over records detailing the frequency of requests for blood samples by state law enforcement agencies, as well as the names of the agencies engaging in this unconstitutional dodge.

Now, it’s being sued by parents who did not realize their infants’ blood samples would not only be held for nearly a quarter century, but were accessible with nothing more than a subpoena. The Institute for Justice is representing two mothers (so far) who were never told this sort of thing was happening, nor given any opportunity to opt out. Here’s IJ’s Daryl James and Brian Morris with the details for the Daily Beast.

Without telling parents, the state has stored samples from each baby born since the 1970s, creating a secretive database with millions of entries. Blood samples stay on file for 23 years. DNA data might last longer on third-party servers.

New Jersey does not say precisely what happens to the data, but the state gives itself permission to share the genetic markers it collects with anyone it wants for any reason, including law enforcement. The risk is not just hypothetical. New Jersey already has turned over infant blood samples to police agencies without a warrant, leading to criminal charges for at least one father.

Technically, parents can opt out of the screening if they object on religious grounds. But hospitals hide this option, and some families report threats of being reported to Child Protective Services if they refuse. A half-page handout from the New Jersey Department of Health claims “all” infants are “required by law” to give blood to the state.

The handout says nothing about long-term storage.

As the article points out, New Jersey isn’t the only state doing questionable things with infants’ blood and/or DNA samples. The thing about those states is that they’re no longer allowed to do these things, thanks to successful lawsuits.

The case builds on earlier lawsuits exposing invasive uses of baby blood samples without parental consent. Plaintiffs caught Texas turning over DNA data to the Pentagon for a national registry. Michigan was selling newborn blood for research. So was Minnesota. Court rulings forced all three of these states to stop.

New Jersey’s effort, however, raises multiple constitutional issues. First, there’s the bypassing of warrant requirements with the use of subpoenas issued to another government agency. Then there’s the storage of the blood for twenty-three years — something that allows the state to build a database of DNA samples just in case they might prove useful to law enforcement at any time in the future.

But that’s not how the Fourth Amendment works. Government agencies don’t get to stockpile potential evidence in hopes that it might help in investigations, including investigations that haven’t even been initiated yet. Even similar stockpiles — like plate/location info gathered by automatic license plate readers — are purged far more frequently of their data.

The lawsuit [PDF] filed by Institute for Justice asks for the court to order the state to either end the program or continue this collection only if parents are fully informed of the program’s details. It also asks for this program — if it’s allowed to continue — be opt-in only.

As it stands now, the program that was created to screen newborn babies for certain diseases has become just another way for cops to sidestep constitutional protections… for up to twenty-three years after a child is born. That’s downright dystopian and the state should have altered or ended this program long before being sued.