Article

Genetic Privacy After Carpenter

The recent arrest of the alleged Golden State Killer has ignited law enforcement interest in using consumer genetic databases to crack cold cases. The break in that case came when investigators compared crime scene DNA to other DNA profiles searchable in an online genetic genealogy database called GEDmatch. Yet consumer genetic services have responded to law enforcement interest in markedly different ways. Some have explicitly denounced law enforcement use and vowed to oppose it; others have welcomed law enforcement expressly; and some have cooperated quietly with law enforcement, while keeping their users in the dark. At almost the same time, the Supreme Court gave these platforms a new role in policing police access to their genetic resources. In Carpenter v. United States, the Court upended the seemingly categorical rule that one cannot have an expectation of privacy in data shared with another.

This Article examines the impact of Carpenter for law enforcement use of third-party DNA databases, as in the Golden State Killer case. In so doing, this Article makes three contributions. First, it joins a burgeoning scholarship in identifying Carpenter’s “test,” and demonstrates that genetic information is precisely the sort of data in which individuals may ordinarily maintain an expectation of privacy, even when that data is in third-party hands. Second, it considers the role of consumer genetic platforms in mediating police access to their resources, recasting third-party privacy practices in a more robust and nuanced role as measures of consent. Third, it assesses the privacy practices of genetic genealogy companies specifically, concluding that some plainly reinforce existing expectations of privacy in genetic data, while others have meandered their way closer to legally valid consent to government use—though none has done so with precision.

Appointments Without Law

Debates about the Appointments Clause tend to turn on drawing the right distinctions. This Article argues that the Appointments Clause draws a little-recognized distinction between the officers specifically enumerated by the Clause (“Ambassadors,” “other public Ministers and Consuls,” and “Judges of the supreme Court”) and the officers referred to only as a residual category (“all other officers of the United States”). The basic claim is that enumerated offices need not be “established by Law”—that is, by congressional legislation—but are established instead by the Constitution or the law of nations.

Although the “enumerated-residual distinction” has been essentially ignored by judges and scholars, it raises a basic interpretive puzzle. The Appointments Clause appears to give the President the same authority to appoint each category of enumerated officers. But in practice, we have construed the President’s authority to appoint diplomats and Supreme Court Justices quite differently. Since the Founding, the President has appointed diplomats without congressional authorization, but at the same time everyone has assumed that Congress must pass a statute before the President may appoint any Justices.  

This Article argues that the President has the authority to appoint both diplomats and Justices without congressional authorization. This view accords with the Constitution’s text, suits the unique constitutional status of the Supreme Court, and was advanced by political actors soon after the Constitution’s ratification. But even if one rejects the strongest version of this argument, the Article’s core insight—that the Appointments Clause requires parallel treatment of diplomats and Justices—has a series of potential implications for constitutional doctrine.

Insincere Evidence

Proving a violation of law is costly. Because of the cost, minor violations of law often go unproven and thus unpunished. To illustrate, almost everyone drives a little faster than the speed limit, but rarely are we ticketed for doing so. Failure to enforce the law against minor infractions is justifiable from a cost-benefit perspective. The cost of proving a minor violation—for example, that a driver broke the speed limit by one mile per hour—outstrips the benefit. But systemic non-enforcement has the downside of underdeterrence. People drive a little too fast, pollute a little too much, and so on.

This Article explores how insincere rules, meaning rules that misstate lawmakers’ preferences, might reduce proof costs and improve enforcement. To demonstrate the argument, suppose lawmakers want drivers to travel no more than 55 mph. A sincere speed limit of 55 mph may cause drivers to go 65 mph, while an insincere speed limit of 45 mph may cause drivers to drop down to, say, 60 mph—closer to lawmakers’ ideal. Insincere rules work by creating insincere evidence. In the driving example, the reduction in proof costs achieved by an insincere rule is akin to adding an artificial 10 mph to the reading of every radar gun.

The logic of insincere evidence is not confined to speed limits. The conditions necessary for insincerity to work pervade the legal system. We distinguish insincere evidence from familiar concepts like over-inclusive rules, prophylactic rules, and proxy crimes. We connect insincere evidence to burdens of persuasion, showing how it can offset the effects of higher burdens. Finally, we consider the normative implications of insincere evidence for trials, truth, and law enforcement.

©Virginia Law Review Association. All rights reserved.