Why The FDA Ban On Providing Health Reports Based On Personal Genomes Won't Work

from the because-DNA-is-digital-data dept

When the first human genome was sequenced -- that is, when most of the 3 billion base-pairs that go to make up our DNA were elucidated -- as part of the Human Genome Project, around $3 billion was spent. Today, the cost of sequencing is falling even faster than Moore's Law, which means everyone could have their genome sequenced soon, if they wished (and maybe even if they don't....). By analyzing the DNA, and looking at the gene variants found there, it is possible to spot predispositions to certain diseases or medical conditions, potentially allowing lifestyle changes or treatment that reduce the risk. The well-known personal genomics company 23andMe was offering this kind of service, at least on a small scale. But that stopped at the end of last year, as the company explains:

We no longer offer our health-related genetic reports to new customers to comply with the U.S. Food and Drug Administration's directive to discontinue new consumer access during our regulatory review process.

At this time, we do not know the timeline as to which health reports might be available in the future or when they might be available.

According to an article in MIT Technology Review, here's what had happened:

in November 2013, the Food and Drug Administration had cracked down on 23andMe. The direct-to-consumer gene testing company's popular DNA health reports and slick TV ads were illegal, it said, since they'd never been cleared by the agency.

But as that same article goes on to explain in detail, users of 23andMe are having no difficulty in getting around that ban on obtaining health-related analyses of their genomes, using third-party sites like Promethease:

Promethease was created by a tiny, two-man company run as a side project by Greg Lennon, a geneticist based in Maryland, and Mike Cariaso, a computer programmer. It works by comparing a person's DNA data with entries in SNPedia, a sprawling public wiki on human genetics that the pair created eight years ago and run with the help of a few dozen volunteer editors. Lennon says Promethease is being used to build as many as 500 gene reports a day.

That kind of analysis is possible because, once sequenced, DNA is essentially just digital data: very easy to upload and compare against biomedical databases storing information as digital files. Even though they are not currently allowed to analyze it, companies like 23andMe still provide customers with access to the raw genomic data, which can then be sent to services like Promethease for a basic report drawing on its DNA database.

This raises an interesting question: given that the information on SNPedia is drawn from public databases, can the FDA stop people using it to circumvent the ban on 23andMe? According to MIT Technology Review, the FDA believes the answers is "yes", but that just won't work in practice. Even if the FDA manages to shut down all the services like Promethease, it would be easy to write a program that searches the main public biomedical databases for exactly the same kind of information about particular gene variants found in somebody's genome. The software could be shared freely as open source, making it impossible to prevent people from obtaining the program and carrying out such searches independently on their own computers.

It's true that there are good reasons why the FDA might be concerned about members of the public being given medical analyses of their genome in inappropriate ways. For a start, the results are generally probabilistic, rather than definite predictions; that makes them hard for non-experts to interpret. And when it isn't about probabilities -- if it is certain that you will develop a disease, possibly a devastating one -- there's a strong argument that counselling needs to be made available when that information is given to the person affected.

Still, regardless of the extent to which the FDA's actions are understandable, trying to stop people comparing their DNA with publicly-available information is futile. As the copyright industry has learned the hard way, once data is digital, it is essentially uncontrollable. The best thing to do is to accept that fact and move on. In this case, that means the FDA should encourage companies offering analysis to do a good job, not block them completely.

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Filed Under: databases, dna, fda, information, innovation, public health
Companies: 23andme

The FBI Wants Speedy DNA Analysis Added To Its Biometric Dragnet

from the to-preserve-the-integrity-of-your-precious-bodily-fluids dept

The FBI's Next Generation Identification (NGI) database has been discussed here several times, thanks to its "expeditious" blend of criminal and non-criminal data, its postponed-forever Privacy Impact Assessment the agency has been promising since 2008, the limited, four-state rollout of facial recognition software with a 20% error rate, and its peculiar exclusion of DOJ/law enforcement employees from its lifelong criminal database monitoring.

It appears the FBI isn't satisfied with the wealth of biometric information it already has access to. It's grabbed everything external it can possibly get (faces, distinctive marks, fingerprints, civil/criminal records, voice recordings, iris scans [coming soon!]). Now, it's coming for what's inside you.

The FBI is preparing to accelerate the collection of DNA profiles for the government's massive new biometric identification database.

Developers of portable DNA analysis machines have been invited to a Nov. 13 presentation to learn about the bureau's vision for incorporating their technology into the FBI's new database.

So-called rapid DNA systems can draw up a profile in about 90 minutes.

DNA has been an integral part of criminal investigations for a number of years now and there's no question it has played an important role both in securing convictions and exonerating the falsely accused. But what the FBI is proposing is adding input from lab-in-a-box setups that return pass/fail DNA matches in a relative instant.

Rapid DNA analysis can be performed by cops in less than two hours, rather than by technicians at a scientific lab over several days. The benefit for law enforcement is that an officer can run a cheek swab on the spot or while an arrestee is in temporary custody. If there is a database match, they can then move to lock up the suspect immediately.

What used to take days in a secure, sterile lab now can apparently be accomplished in the "field" in a couple of hours. All technological improvements aside, this would appear to be a much less reliable method. Field drug testing kits have been available for years -- which utilize nothing more complex than chemical reactions -- and they've been shown to be far more unreliable than those utilizing them would have you believe. The same can most certainly be said about portable or on-site units wholly divorced from the normal constraints of a lab setting.

The government (so far) realizes this. That's why DNA obtained and analyzed by these units aren't included in the national DNA database. Only results from accredited public-sector laboratories are accepted. The companies manufacturing these devices are obviously interested in seeing this law changed. In the meantime, they've pushed for states to create their own DNA databases.

The FBI would like to see this changed as well, going so far as to issue a statement that is mostly wishful thinking.

FBI officials say their program does not impact any laws currently governing the operation of CODIS. Rapid DNA techniques in booking stations, “will simply expedite the analysis and submission of lawfully obtained samples to the state and national DNA databases,” [Ann] Todd, the FBI spokeswoman, said.

Except that it would impact laws governing CODIS… as they are today.

A legislative tweak is needed to allow DNA processed by a portable machine to be entered into the FBI's systems, bureau officials acknowledge.

Again, the FBI places efficiency above everything else. "Tweaking" the law to include portable devices would "expedite" the filling of the FBI's biometric database. Faster is better, even if the analysis method isn't as reliable as that performed by accredited labs. False positives/negatives are just the acceptable collateral damage of "combating crime and protecting the United States."

There's a huge backlog of untested DNA waiting for CODIS-qualified lab analysis. Offloading some of the work to private labs or portable devices sounds like a great way ease that congestion, but it actually could create more problems. If the government believes that only its chosen labs are capable of producing solid analysis, fixes like those suggested by three California Congressional reps would ask law enforcement (including the FBI) to decide which evidence goes the Gold Standard labs and what gets passed along to the lesser, unproven venues.

When presented with this set of options, law enforcement may prioritize cases badly, routing "time-sensitive" evidence through unproven but quicker analysis while sending out anything that can "wait" to the government's labs. Basically, without an across-the-board certification of all methods (with rigid testing and re-testing to ensure quality) as being equal, there's a good chance collected DNA will be treated just as prejudicially as the suspects themselves. And, if the expansion of CODIS inputs isn't handled with rigorous oversight, the chances of the guilty going free and the innocent being imprisoned increases.

Filed Under: biometrics, dna, doj, fbi, next generation identification, ngi, privacy

DailyDirt: Genetic Information Is Everywhere Now

from the urls-we-dig-up dept

The costs of analyzing DNA have come down significantly over time, so it's becoming increasingly common to sequence DNA and discover all kinds of biological curiosities. It's not quite as fast and easy as they make it look on detective shows on TV, but DNA analysis has made some pretty amazing advances. Here are just a few examples of genetic testing that you might have missed.

• It's actually not that uncommon to find people who are chimeras -- individuals with multiple genomes in their bodies. Twins can end up with a mixture of blood types that co-exist in their veins. Nearly all mothers retain some residual fetal cells from their children (and this is a form of microchimerism). We have a lot to learn about the genetic makeup of individuals, and it's not as simple as one might have assumed. [url]
• The male fetal DNA from a mother's son can often be found in her brain. Brain autopsies of 59 women showed that the majority of them had male DNA, giving evidence that fetal DNA can not only cross the placenta, but also the blood-brain barrier. [url]
• A blood test can now reliably detect an unborn baby's sex at just 7 weeks old. The genetic material from the baby can be detected and analyzed, offering some advantages over more invasive tests such as amniocentesis. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: biotech, blood test, chimerism, dna, fetal dna, genetic material, genome, microchimerism

Australian Court Disagrees With US: Claim Genes Are Totally Patentable

from the sucks-to-be-DownUnder dept

Last year, the Supreme Court made an important ruling in the Myriad Genetics case, effectively saying that genes aren't patentable, even if you can separate them out from the rest of a strand of DNA. Myriad Genetics had isolated two key genes related to breast cancer, BRCA1 and BRCA2 and argued that only it could test for those genes, because of its patent. The Supreme Court soundly rejected that, noting that you cannot patent something in nature, and clearly Myriad did not "make" the genes. Unfortunately, as we'd noted just a few months earlier, a court in Australia had come to the opposite conclusion, saying that Myriad Genetics had legitimate patents on BRCA1 and BRCA2. That case was appealed, and there was some hope that after the US's ruling, higher courts in Australia might see the light. Not yet apparently. An appeals court has agreed that genes are patentable Down Under, which means that such important genetic tests there are likely to be much more expensive and limited.

You can read the full ruling here if you'd like. The case can still be appealed to the Australian High Court, so perhaps it will take the same trajectory as in the US, where it needed the Supreme Court to finally point out the absolute insanity of patenting genes. Though, frankly, if Australia does keeps genes patentable, it might make for an interesting natural experiment to see how much innovation and research happens in both places -- one with, and one without, patents.

Filed Under: australia, brca1, brca2, breast cancer, dna, genes, patents
Companies: myriad genetics

Company Offering Open-Source Biological Reagents Hopes To Recapitulate Free Software's Success

from the the-value-of-free dept

It's well-known that monopolies can lead to price-gouging, which produces effects like this:

I still have no idea how people can get away with charging several thousand dollars for a milligram of recombinant protein. That's an amount that you can see with the naked eye, if your eyesight is really good, but even then, you can see it only just barely. If you had to make a recombinant protein in your undergraduate biology class, then you know that the cost of doing this is essentially the cost of highly refined sugar water (= culture media) plus the cost of highly refined salt water (= chromatography buffers).

That comes from a fascinating essay by John Schloendorn, founder and CEO of Gene And Cell Technologies, a regenerative medicine startup, which appears in Issue 4 of the BioCoder journal. But here's the strange thing: the biological reagents market may show the classic symptoms of monopoly abuse, but as Schloendorn points out, there are very few actual monopolies here:

The protections of the closed-source biologics vending industry are actually thin as paper and brittle as glass. For most of this stuff, they have no patents, no copyright, no government regulations, hardly a lobby to speak of, and no monopolies of any kind. They manage to lock biotechnology away from new entrants and to keep the cost of doing science in the stratosphere for establishment professionals, solely through the physical possession of the source DNA and by imposing contractual restrictions on those willing to sign them.

Schloendorn notes the parallels with the software market, which also suggests an obvious solution to the problem of exorbitant prices: open-source biological reagents. That is precisely what Schloendorn has created:

I have synthesized, manufactured, tested, and fully validated a collection of open source plasmids [small circular DNA strands] coding for some of the very basic building blocks of biotechnology. I do charge an initial purchase price to pay for storage, ongoing quality control, and the provision of a reliable source of these molecules. But there is no proprietary barrier of any type on their use. You may grow them on your own, modify them, give them to others, sell them, sell products derived from them, and do whatever you (legally) want to do with them.

What's fascinating here is to see the application of the business model commonly found in the world of open-source software -- whereby the code is freely available, and customers effectively pay for a service that provides quality control -- in the world of DNA. Given the easy profits that will be put at risk by this new offering, we can probably expect the same kind of scaremongering and lobbying from the incumbents that free software experienced when it became clear that it posed a serious threat to the traditional, high-margin world of closed-source code.

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Filed Under: biological reagents, dna, genes, open source
Companies: gene and cell technologies

WIPO Boss Reappointed Until 2020, Despite Bogus Legal Threat Against Blogger

from the wipo-credibility-gone dept

WIPO boss Francis Gurry's leadership has been full of some really questionable controversies, including potentially violating UN sanctions by sending computers to North Korea and Iran, as well as having people break into the offices of some of his own employees to secretly collect DNA samples. Still, to me, perhaps most troubling was his attempt last month to stifle public debate and commentary about the DNA controversy by sending an intimidating letter to blogger Gene Quinn, threatening him with the possibility of criminal prosecution in Switzerland, for merely publishing a "report of misconduct" filed about Gurry by one of his deputies, James Pooley.

Given all the controversy -- some of it quite serious -- it seems reasonable to question if Gurry is the right person to continue to lead WIPO. Apparently, the member states that control WIPO don't have a problem with it, because they've now reappointed Gurry, giving him a second six-year term.

As for his focus? It appears to be to continue pushing a maximalist position. While it should be noted that WIPO has actually become marginally less maximalist in the past few years, thanks to the influence of developing nations like India and Brazil, it's still an organization that focuses on maximizing intellectual property, rather than maximizing what's actually best for the public. That's clear from Gurry's "acceptance" speech.

Turning to the future, I believe that the fundamental challenge that we face as an Organization is to achieve a shared understanding of the contribution and value of intellectual property to economic, social and cultural development.

Notice that it's not about determining whether or not it's actually true that "intellectual property" creates such value -- it's just assumed as fact.

And, indeed, he also highlighted areas where WIPO has been working on dangerous new forms of "intellectual property" protections -- where absolutely none is needed: broadcast rights and traditional knowledge.

In concrete terms, for example, the Organization must achieve successful outcomes both on broadcasting and on traditional knowledge, traditional cultural expressions and genetic resources. If we are unable to address the latest technological developments, the Organization will fail in its main mission of encouraging innovation and will become irrelevant to the mainstream of global innovation. If we are unable to address traditional knowledge systems, the Organization will fail in its mission of universality and will not recognize the full scope of intellectual contributions to innovation.

This is ridiculous and dangerous. Locking up traditional knowledge doesn't help "recognize the full scope of intellectual contributions to innovation" -- it just makes it more difficult for continued innovation. Protectionism where none has been needed slows down progress, rather than advances it.

As the old saying goes, when all you have is a hammer, everything looks like a nail. The problem here is that WIPO seems to view every bit of knowledge, content and transmission as a rogue form of "property" that needs to be locked up and put behind a tollbooth. And rather than looking into how dangerous an assumption that is, Gurry is busy threatening bloggers for reporting about his own questionable behavior.

Filed Under: dna, francis gurry, gene quinn, intimidation, threats, un, wipo

DailyDirt: There Will Be Blood... And DNA And Stem Cells

from the urls-we-dig-up dept

Biotechnology takes time to grow and develop new stuff, but every so often, there's a big leap. And then it still takes time to verify results and perform rigorous double blind medical studies. Science fiction and CSI TV shows make it seem like we'll be re-growing body parts and curing every disease before the next commercial break. Unfortunately, biology rarely moves that fast. Here are just a few cool biotech projects that won't be available at your local drug store anytime soon, but these sci-fi-sounding projects are closer to reality now.

• Artificial human blood could be mass produced someday soon, providing a nearly limitless supply of type-O blood. This process could solve a lot of medical problems, but it could also bring out the vampires.... [url]
• The DNA laser printer can print custom strands of DNA -- to arbitrary lengths and with 100% accuracy. It doesn't quite match the sophistication of biological DNA synthesis, but being able to (cheaply!) create long stretches of custom DNA will make some biological studies a bit easier to do. [url]
• Surprisingly, it's not that difficult to obtain pluripotent stem cells from mice. Putting blood cells from a young mouse in a mildly acidic solution for about 30 minutes seems to do the trick -- but researchers are still trying to figure out exactly how this trick works so that they might be able to do it with adult human cells. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: biology, biotech, blood, dna, health, medicine, stem cells, synthetic biology

Myriad Genetics Loses Again: Court Refuses To Grant Preliminary Injunction Against Rival Genetic Testing Company

from the battling-cancer dept

In June last year we reported on a major ruling from the Supreme Court, which effectively said that you can't patent genes. That ripped a huge hole in Myriad Genetics' monopoly on testing for the BRCA1 and BRCA2 genes that are linked to breast cancer, but that didn't stop it suing some of the new entrants to this market. In particular, it asked a federal judge in Utah to order one of them, Ambry Genetics, to stop providing its gene testing service for those genes. The American Civil Liberties Union filed an amicus brief opposing Myriad's motion, together with a number of other organizations. Here's the latest development in the case:

Yesterday, a federal district court judge in Utah rejected Myriad's motion. Judge Shelby found that Myriad had failed to establish that it was likely to win its lawsuit against Ambry, because there are substantial questions about whether Myriad's patent claims improperly monopolize products of nature, laws of nature, and abstract ideas.

While Myriad's lawsuits can proceed -- for now -- patients continue to have the right to choose other BRCA genetic testing providers. They can obtain a second opinion before making life-changing medical decisions. And they can decide which laboratory will have their data.

That last point is important. As the ACLU explains:

Myriad has used its patents over the genes to create the largest database in the world about BRCA genetic mutations and their medical significance and refuses to share that information with the scientific community.

That underlines another huge problem with gene patents: they allow monopoly-holders to lock up key medical information that could have been used by researchers around the world to advance knowledge and come up with new treatments. Far from accelerating innovation, as apologists for patents like to claim, they throw huge roadblocks in its way. It's yet another reason why the Supreme Court's decision to strike down gene patents should be celebrated.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: brca, brca1, brca2, dna, gene patents, genetic testing, injunction, patents
Companies: ambry, myriad genetics

Man Stopped By Cops For Supposedly Voluntary NHTSA 'Survey' Sues City And Police Dept. For Violating His 4th Amendment Rights

from the completely-preventable-misunderstanding,-but-no-one-wanted-to-prevent-it dept

As has been noted earlier here at Techdirt, the NHTSA (National Highway Traffic Safety Administration) has been collaborating with law enforcement agencies around the nation to collect blood and saliva samples from drivers. This collection is part of a NHTSA "survey" which is looking to determine how often drivers drive while possibly impaired by drugs or alcohol. Providing the NHTSA with either of these fluids is completely optional (citizens are rewarded monetarily for their contribution), but the use of uniformed officers (supposedly solely for crowd control and security of the payment funds) and patrol cars has given many drivers the impression that these stops (and collections) are actually mandatory -- or at the very least, highly recommended.

The Fort Worth, TX police department found itself on the receiving end of a considerable amount of criticism for its participation in the blood/saliva collections. The PD first attempted to deflect the criticism by offering standard excuses. When that failed to work, the police chief offered a very contrite apology for participating in the survey and "jeopardizing the public trust."

This backlash hasn't slowed the NHTSA which has taken its blood and saliva survey to Reading, Pennsylvania. While the outrage wasn't nearly as pronounced as it was in Ft. Worth, it was still notable. However, Police Chief William Heim hasn't seemed too concerned by citizen complaints. He called the whole thing "innocuous" and made this laughable assertion:

"People are not pressured by police presence to do something they don't want to."

Au contraire, Chief Heim. Police presence is often all it takes to make voluntary experiences seem mandatory. Ricardo Nieves, one of those flagged down by Reading police officers, felt the experience was anything but voluntary, and that attempting to leave would have been greeted by a possible arrest.

The Reading city council and the mayor himself also expressed concern about the use of police officers to acquire "voluntary" blood and saliva samples. For his part, Chief Heim appears to be ready to just ride out this outrage without offering any concession towards the offended public.

But if that's what Heim had planned, Nieves just threw a legal wrench into the works. Nieves has sued the city of Reading, Chief Heim, Mayor Vaughn Spencer, two unnamed employees of the private contractor (Pacific Institute for Research & Evaluation [PIRE]) performing the fluid collections, as well as PIRE itself

Nieves claims his Fourth Amendment rights were violated by the supposedly voluntary collection, which felt much more mandatory thanks to the police presence. Here's his description of the incident.

On Friday, December 13, 2013, plaintiff was traveling on the Bingham Street Bridge into the City of Reading, Pennsylvania, a public roadway. A cruiser owned and operated by the City of Reading Police Department was parked by the side of the street with its lights flashing where plaintiff was. Bright orange security cones lined the lane where plaintiff was driving. Plaintiff was in the right hand lane and the lane to plaintiff’s left was full of traffic such that he could not pull over to change lanes.

Defendant Doe stepped out into plaintiff’s lane of traffic, blocked his further advance, and flagged him to pull off the public road into a parking lot on Laurel Street. Having no ability to advance further on the road, and with no ability to move into the left-hand lane because of traffic, plaintiff drove into the parking lot. In the parking lot were five to seven improvised parking spaces outlined on three sides with orange security cones. Nieves pulled into one of these security cones.

Nieves reasonably believed under the totality of the circumstances that he was being stopped by the Reading Police Department because of the flashing lights of the police car on the street, the fluorescent orange cones on the street and in the parking lot, and the presence of a police car in the parking lot that was occupied by a police officer.

Jane Doe, a woman with a clipboard came up to plaintiff’s car and began to speak to him.

Jane Doe spoke quickly and said several things, including that plaintiff was not being cited, that plaintiff had done nothing wrong and that plaintiff was not being “pulled over.”

The last statement was clearly false, because plaintiff had only pulled over after John Doe had stepped into the middle of plaintiff’s lane of traffic on the public street and flagged plaintiff into the parking lot, all while lights were flashing on the police car parked at the location.

Defendant Doe stated that the purpose of the stop was a survey of drivers’ behavior and that she wanted to take a cheek swab to check for the presence of prescription drugs. She also stated that plaintiff would be paid if plaintiff agreed to the same.

Plaintiff refused to provide the cheek swab she requested.

Jane Doe then tried a second time to convince plaintiff into providing a cheek swab. Plaintiff again refused to provide a swab.

A third time Jane Doe again tried to coerce plaintiff into giving a cheek swab. At this point plaintiff stated to her very firmly, “No. Thank. You.”

Jane Doe then tried to hand plaintiff a pamphlet, which plaintiff did not accept. Jane Doe then walked away from plaintiff’s car. Plaintiff then tried to exit the parking lot but found no means of egress. Other cars had by then also apparently been pulled off the road.

Finally, a Reading police officer waved Nieves towards where he had been originally flagged down and indicated he should re-enter traffic there.

Nieves is asking for a permanent injunction preventing the Reading PD (and others) from utilizing "suspicionless seizures" like the NHTSA's fluid collection survey. He's also seeking unspecified damages for Fourth Amendment violations and false imprisonment.

As he points out in the filing, at no time did Nieves feel he could leave without being subjected to arrest and prosecution. Such is the power of law enforcement officers and their vehicles, even if they are supposedly off-duty and serving only as "security."

That's one way the Reading PD's compliance with the NHTSA may come back to haunt them. As Scott Greenfield points out, this voluntary checkpoint being staffed with police officers and their flashing lights also hurts the chances of future police checkpoints running unchallenged.

The use of police to conduct this NHTSA survey has fundamentally altered the equation of a car stop, and the cops have done this to themselves. Aside from the absurd Georgia decision, there was never a suggestion that a driver had authority to ignore the “command” to pull over from a cop with lights blazing. That can no longer be said as a matter of law now that the police have squandered their authority to assist in a “voluntary survey.”

Flashing lights look no different when it’s a lawful sobriety checkpoint than when it’s a voluntary survey conducted by private contractors for a government agency. While the former requires compliance, the latter is of no consequence whatsoever. To borrow from Prouse’s rationale, just as there is no law preventing police from chatting you up like anyone else on the street, there is no law requiring you to chat ‘em back. Not in the mood to chat? Keep walking.

Not in the mood to take a survey? Keep driving. Forget those flashing lights. This is the message that comes of the extension of authority without any lawful basis or judicial approval.

Of course, this is hardly a victory for citizens. Greenfield notes that bypassing a set of flashing lights that could be taken either way (voluntary/mandatory) may just net citizens brand new sets of bullet holes.

Chief Heim claims it's all voluntary and not a big deal, but anyone arriving at these not-mandatory checkpoints won't know that until he or she has repeatedly refused to surrender blood or saliva. This whole situation could have been avoided by either a) not allowing law enforcement officers to participate (off-duty or not) or b) posting signage well in advance of the stop that participation was completely voluntary and indicating clearly where those wishing to bypass the stop could route themselves. Instead, these agencies lent their reputations and implied "color of law" to private contractors fronting for a regulatory agency and now, everyone involved -- cops and citizens -- is worse off for it.

Filed Under: blood, dna, law enforcement, nhtsa, pennsylvania, police, samples

Traffic Safety Administration Takes Its Blood And Saliva 'Survey' To Pennsylvania, With Predictable Results

from the this-isn't-over-yet dept

It appears the National Highway Traffic Safety Administration (in conjunction with the White House Office of National Drug Policy) isn't done turning American citizens against their local police departments with its quest to determine what percentage of drivers are hitting the road while under the influence of drugs or alcohol.

The police department of Ft. Worth, Texas, didn't seem to enjoy the extra attention its assistance of the NHTSA at "voluntary" checkpoints brought with it. After first defending his officers' actions during the saliva/blood/oxygen draws, the chief later backtracked, offering a sincere apology that actually apologized for his department's participation rather than simply leaving any contrition left unsaid. ("We apologize if any drivers were offended…" Seriously?)

The claims made by both the NHTSA and Ft. Worth PD about this "survey" didn't add up. It was supposedly both "voluntary" and "anonymous." But drivers who refused to participate had their breath surreptitiously "tested" by Passive Alcohol Detectors, which means at least one aspect wasn't "voluntary." And those that did agree to give blood or saliva had to sign a release form, which knocks a pretty big hole in the "anonymity" side of it. Furthermore, having law enforcement officers ask nicely for cooperation tends to make "voluntary" experiences feel more "mandatory." A sign posted before the checkpoint could have pointed out the survey was voluntary, but one would imagine this sort of notification would have eliminated the desired "randomness" the NHTSA was seeking.

I assume we'll be hearing more about this in the next few days, but it appears the NHTSA Blood n' Spit Road Show has moved on to Reading, Pennsylvania.

Police there joined forces with the Pacific Institute for Research and Evaluation — a company hired by the National Highway Traffic Safety Administration and the White House Office of National Drug Control Policy — to conduct the road stops.

This doesn't seem to have made some locals very happy.

[E]ven though the drivers were told their provision of DNA was purely voluntary, many complained about the insistent quizzing and overall feeling of pressure — and that they were pulled to the side of the road in the first place for a research project, the Reading Eagle reported.

“I feel this incident is a gross abuse of power on many levels,” said Reading resident Ricardo Nieves, in a complaint to the town’s City Council earlier this week, Fox News reported.

But it appears as though the Reading police chief won't be apologizing any time soon for lending out his officers (and their perceived authority).

Reading Police Chief William Heim said to the Reading Eagle that federal authorities are only trying to determine the extent of drunken and drugged driving statistics as part of an overall fight to lower road crashes and driving-related injuries. And he said the cheek swab requests weren’t aimed at collecting DNA but rather checking for the presence of prescription drugs, Fox News said. Moreover, he claimed police only served as security and weren’t actually pulling drivers to the side or asking questions.

This survey may not be aimed at collecting DNA, but it's not as though it's not being collected along with the blood and saliva. Other than protecting the cash box (donors are awarded $10-50, depending on which fluid is volunteered), it would seem a truly voluntary survey wouldn't need much in terms of "security." What sending police officers does do, whether intentionally or not, is provide the surveyors with more participants by lightly applying the color of authority. Chief Heim, however, seems either blissfully ignorant or deliberately ignorant of the effect adding a "police presence" has on a situation.

Asked about Nieves' statement that the private firm wanted police there for intimidation, Heim responded: "People are not pressured by police presence to do something they don't want to.

Only a cop could give that answer with a straight face and only a cop would. Every single day people are pressured to do things they don't want to -- or things they don't feel they should need to -- by people in positions of authority. A uniform and an imbalance of power go a long way towards eliminating the resistance shown by average citizens. Only the tenacious escape the hundreds of purely voluntary situations ("would you mind popping the trunk for me?" "would you mind pulling ahead to the inspection area?") that arise everyday. Most people simply give these officers what they want, even when the officers themselves know they have no right to ask for it.

There will be more fallout from the NHTSA's latest bodily fluid "survey" stop. There will be more in the future as it continues around the country. And accompanying it all will be the assertion that adding police officers into the mix has zero effect on the public's perception of these "voluntary" surveys.

Filed Under: blood testing, dna, nhtsa, pennsylvania, police, privacy, reading