Proskauer & ACLU Pro Bono Victory Sets Precedent For Massachusetts Privacy Law

August 26, 2011 (Boston) - On August 25, the Massachusetts Appeals Court, in a case of first impression, ruled in favor of Proskauer pro bono client, Keith Amato, holding that the state crime lab's retention of his DNA sample -- beyond the limitations promised to him by the police when they took the voluntary sample -- state a claim for invasion of privacy, and for violation of the state's Fair Information Practices Act.

Mark Batten, a Boston-based Partner in the firm’s Labor & Employment Law Department, handled the matter with assistance from the American Civil Liberties Union.

According to Mr. Batten, “The court's clear holding that DNA is private information in which citizens have a reasonable expectation of privacy; that the government may not unilaterally determine how long it will retain such information, but must justify that decision; and that the state must honor limitations on consent volunteered by police officers in collecting such information, are all matters of first impression in Massachusetts and a significant win for privacy advocates.”

"While Massachusetts law provides for keeping a data bank of the DNA of convicted felons and including that data in the national DNA identification system, it does not authorize the crime lab to maintain records of the DNA of innocent persons who have cooperated with the police in voluntarily giving them a DNA sample," said John Reinstein, legal director of the ACLU of Massachusetts. “This disregard for the privacy of innocent people is also bad public policy, because it creates a real disincentive for people to cooperate in future...