United States: Proskauer & ACLU Pro Bono Victory Sets Precedent For Massachusetts Privacy Law
Last Updated: September 1 2011

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 investigations.”

The matter arises out of a June 2002 murder investigation where the plaintiff voluntarily provided a DNA sample at the request of investigators, based on promises that the sample and its related data would not be retained or used if his DNA did not match the biological evidence from the crime scene. Claiming that the defendants have not stood by those promises, Mr. Amato filed a class action complaint alleging violation of the Fair Information Practices Act (FIPA), invasion of privacy, and breach of contract.

Proskauer's Pro Bono Initiative, chaired by former Massachusetts Attorney General and current Boston-based Senior Counsel Scott Harshbarger, works with community groups, Iraqi and other refugees seeking asylum, domestic violence victims, artists and musicians, Holocaust survivors, and lesbian, gay, bisexual and transgender individuals, among many others. The firm's lawyers have also played a crucial role in shaping important issues such as gender rights, voting rights, prisoner rights and religious freedoms. The initiative's motto is “Doing well, by doing good,” and Proskauer views pro bono as an opportunity to not only positively impact another life, but also for personal and professional development. Pro bono allows the firm's lawyers to work together while making a difference in the communities where they live and work.

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