A Kuwaiti lawyer has filed a formal constitutional challenge to his country’s controversial mandatory DNA law, which is reportedly set to take effect in November 2016.
The law mandates DNA collection from all citizens and resident foreigners, a total of about 3.5 million people, plus all visitors to the tiny Gulf state. The law was quickly passed by the Kuwaiti Parliament after a July 2015 terrorist attack in the capital left nearly 30 people dead. By having a large database of everyone’s DNA, presumably it would be easier to identify victims of terrorism or perhaps even criminal suspects.
The law, believed to be the first of its kind anywhere in the world, is viewed by many critics as being not only ineffective as a tool to combat terrorism but as being a potentially huge privacy liability if this database were to be stolen or hacked. Still, anyone who refuses collection could be subject to imprisonment or a fine of about $33,000, according to the Kuwait Times.
“Compelling every citizen, resident, and visitor to submit a DNA sample to the government is similar to forcing house searches without a warrant,” Adel Abdulhadi, the attorney, told New Scientist. “The body is more sacred than houses.”
The Kuwaiti attorney also argued in a Wednesday statement that this law was in violation of “Islamic Sharia”—the Constitution of Kuwait is explicitly based on this traditional Islamic law.
Some fear that this law could be used as a blunt weapon, for example to determine paternity in a country where adultery is illegal. The Kuwait Times also reported earlier this month that some people may be in a rush to sell their homes and leave the country as a way to avoid the DNA collection.
Many activists are concerned that a DNA scan could somehow be used as a further wedge between native-born Kuwaitis, other citizens, and “Bedoons,” a group of hundreds of thousands of stateless and often poor people who are routinely denied government benefits.
Neither Abdulhadi nor the Embassy of Kuwait in Washington, DC, immediately responded to Ars’ request for comment.
Law and order
In the United States, it's legal for law enforcement to perform DNA collection on arrested individuals. This law was upheld in 2013 in the landmark 5-4 Supreme Court decision, Maryland v. King.
In a powerful dissent, Justice Antonin Scalia blasted his colleagues in the majority: “Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."
In California, a case known as People v. Buza is still pending at the state’s supreme court. A lower court ruled in 2014 that a California law that required a DNA sample from anyone arrested on felony suspicions violated the state’s constitution, which explicitly states “privacy” as an “inalienable right.”
At the federal level under the King standard, however, at least one scholar doesn’t view it as that far of a leap for the United States to implement some sort of DNA collection at the border.
“Maryland v. King, which authorized collection of DNA from arrestees, spoke in broad terms about the government’s interest in using DNA as a means of verifying identity, and there is also fairly generous Fourth Amendment law about suspicionless searches at the border,” Erin Murphy, a law professor at New York University who has written extensively on this issue, e-mailed Ars.
“So that suggests border collection would likely be upheld. A program that collected DNA from all citizens (say, at birth) for a law enforcement database, however, would be more likely to run into opposition.”
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