If you share a drink, sign a check, leave footprints on the lawn, lick your dinner fork, or spit on the street, you are handing over your most private information: your DNA, the unique tread of your shoe soles, your fingerprints. Is it reasonable to think your waiter will not swab saliva from your fork? That undercover agents are not waiting to measure and photograph every footprint? That all the little traces you leave will be ignored, simply because you are innocent of any crimes – or at least, have not been charged? Privacy is all about reasonable expectation. But reasonable expectations slip and slide as culture and technology change. What was reasonable this morning may not be reasonable next year.
In February 2003, John Nicholas Athan received a letter inviting him to join a class-action legal suit over parking tickets. The law firm was a fake, created by Seattle Police in an effort to entice Athan into responding. If he responded, the police hoped he might lick the envelope seal and unwittingly send a saliva sample through the postal system. They needed his DNA to resolve an old case – the murder of a girl who lived in Athan’s neighborhood growing up.
Athan did respond. He tucked his reply inside the return envelope, licked the seal, and dropped it in the mail. Within a few short weeks, his saliva was scraped from the glue by a forensics lab, and John Nicholas Athan was charged with the 1982 rape and murder of Kristin Sumstad, whose 87-pound body was stuffed inside a cardboard TV box and dumped behind a store in the Magnolia neighborhood where both Athan and Sumstad lived. Athan was only 14 at the time of the murder, but he was always the prime suspect. Witnesses saw him pushing a hand truck with a cardboard box the same day Sumstad was killed.
Athan’s defense attorney fought the admissibility of the DNA evidence, arguing that police cannot pose as lawyers to deceive suspects. The court did not agree, ruling that there can be no expectation of privacy when you surrender information to another person, even an undercover officer.
Licking an envelope seal, it turns out, is the same thing as licking a laboratory slide.
No expectation. No privacy.