In a landmark ruling, the European Court of Human Rights (ECHR)—Europe’s highest court to take up cases affecting the privacy rights of EU citizens—ruled that some aspects of the UK’s DNA database violated EU law.  Specifically, on December 4, the ECHR issued its decision, S. and Marper v. The United Kingdom (Applications 30562/04, 30566/04), holding that the UK DNA database violated the EU’s Convention for the Human Rights and Fundamental Freedoms (the “Convention”) in retaining the DNA samples of individuals who had been acquitted of (or arrested and not charged with) any crime.

While the UK argued that it was not focused on any past acts of individuals, but rather, was focused on future events and preventing crime, the ECHR noted that the UK was alone among Europe in being “the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued.”

The ECHR’s ruling, which is not appealable, focused on Article 8 of the Convention, which provides in relevant part that “Everyone has the right to respect for his private … life …” and that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society… for the prevention of disorder or crime…”  The Court found that the retention of DNA fingerprints of individuals who had not been found guilty of any crime to interfere with a citizen’s private life as guaranteed under Article 8.

The ruling will have immediate ramifications for the UK’s DNA database, which is the largest in the world and holds information on the DNA of some 5.2 million individuals.  Experts estimate that the ECHR’s ruling will force the government to erase the data of at least 850,000 individuals.

The U.S. is now grappling with a similar issue: on December 10, the Justice Department announced that it would expand the National DNA Index Systemto retain DNA information from noncitizens detained by the U.S. government as well as individuals arrested (but not necessarily convicted) of a federal crime.  Similar to the EU’s concerns with retaining such data, some critics have vociferously objected to the proposed database expansion, which will be effective January 9, 2009.  The ACLU, for instance, has stated that it will “turn[] the presumption of innocence on its head.”