The Future is Here and Your DNA Has Been Subpoenaed

Declan McCullagh has finally fixed the RSS for his Politechbot list so I guess I'm reading it again. Here's a fascinating item originating from an email from Ethan Ackerman that I'm taking the liberty of quoting in full because it raises so many issues.

Cops covertly acquired tissue of BTK suspect's relative — from medical lab: In developments straight out of GATTACA's handshake scene, A Kansas City Star report indicates that the suspected “BTK” killer was tentatively linked to crime scene evidence by acquiring genetic material from the suspect's daughter's medical records – the tissue samples being taken without her knowledge.

http://www.kansascity.com/mld/kansascity/news/nation/11035826.htm

The article goes on to give a brief but factually accurate explanation of how a request for “medical records” is entirely within the framework of the federal medical privacy laws (HIPAA), and also gives a likely source of the tissue – a routine pap smear. The article suggests that a judge issued a secret order for the records, though the article does not state if it was a formal 4th Amendment “probable cause” warrant, or some lesser standard subpoena, or even go into whether the police were required to acquire an order under HIPAA (there are circumstances where agents can just the recordholder.)

BUT the article also doesn't raise the fact that what was apparently requested was NOT “health information” – what HIPAA protects – but actual tissue from the suspect's daughter's file samples.

I'm operating on a few words from one article here, so the facts aren't definitive, but this seems quite an interesting breach of privacy expectations, independent of how it may legally turn out.

On one hand, court-compelled physical examinations have been ruled Constitutionally sound (thus, you can be compelled to give a tissue sample, or even forcibly sampled.) On the other hand, how many American women even know labs keep pap smear samples, much less would think it reasonable that their pap smears would one day be turned over to police to tentatively connect their sons or daughters to crimes?