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U.S. law enforcement officials have expanded their DNA databases to include not only those convicted, but also those arrested but not yet tried. The New York Times reported Saturday the practice has drawn criticism from people who say offenders are presumed innocent. The newspaper said starting this month, the Federal Bureau of Investigation will join 15 states that collect DNA samples from those awaiting trial and will also collect DNA from detained immigrants. The FBI, which already has a DNA database of 6.7 million profiles, expects to add 1.2 million new entries by 2012. "DNA databases were built initially to deal with violent sexual crimes and homicides -- a very limited number of crimes," said Harry Levine, a professor of sociology at City University of New York. "Over time more and more crimes of decreasing severity have been added to the database. Cops and prosecutors like it because it gives everybody more information and creates a new suspect pool." Courts have generally upheld laws authorizing DNA collection from convicts and ex-convicts under supervised release, finding that criminal acts diminish privacy rights.

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Enterprise employees frequently use social networking tools, most notably Web-based applications. It's no surprise more organizations are wondering what happens if social networking data becomes relevant to an e-discovery investigation. How does an enterprise go about discovering and assessing Web 2.0 data? How responsible is an organization, legally speaking, for the information that's out there in the Web 2.0 world? What risks arise from e-discovery as it relates to Web 2.0 data, and how can you mitigate them? In this tip, we will look at e-discovery as it relates to Web 2.0 and consider the strongest options for minimizing risks to the organization. E-discovery basics We begin with a quick look at what e-discovery is and how it can create risk. Essentially, e-discovery is the electronic extension of the legal process of discovery, which Wikipedia defines as "the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions." If you're an IT person, not a lawyer, it's important to note that the rules governing the discovery process now require plaintiffs to address all electronically stored information or ESI. In other words, if your organization faces litigation, it will have to deal with the issue of e-discovery, which will entail a whole lot more than turning over some old emails. Depending upon your role in the organization, the first you may hear of this is a "notice of litigation" with perhaps a "litigation hold directive" containing a "preservation directive." Here is a generic e-discovery request below. Apart from a few limiting factors, such as subject matter, named persons and a specified time period, the scope of such a notice is likely to be broad; blame standard procedure, not some high-powered attorney pushing his or her lu

On Wednesday, February 11, 2009, the Data Protection Working Party, an independent European advisory body on data protection and privacy, released its Working Document 1-2009 (.pdf) on pre-trial discovery for cross border civil litigation. The Working Document attempts to reconcile the tension between U.S. discovery rules and the European Union's Directive 95/46/EC (.pdf), which outlines the EU's privacy requirements. What follows is a summary of the Working Document and an analysis of how it begins to bridge the gap between U.S. discovery rules and the European privacy framework. The Working Document offers guidance to EU data controllers responding to U.S. discovery requests. As the Working Document explains, those controllers often find themselves in a bind. On the one hand, U.S. law allows for broad discovery, which may require a controller to provide, or "process," personal data of customers or employees. On the other hand, Article 7 of EU Directive 95/46 limits a member state's authority to process such data. Under Article 7, a member state may process personal data only if one of six identified grounds for processing applies. The Working Document considers the Article 7 grounds most likely to supply a legitimate basis for compliance with a discovery request - namely 1) consent, 2) necessary for compliance with a legal obligation, and 3) necessary for the purposes of a legitimate interest, where such interests are not "overridden by the interests for fundamental rights and freedoms of the data subject." Recognizing that the "interests of justice would be served by not unnecessarily limiting the ability of an organisation to act to promote or defend a legal right," the Working Document suggests that the third basis - necessary for the purposes of a legitimate interest - will often provide a ground for processing data in response to a U.S. discovery request.

In a decision that has privacy advocates and others scratching their heads, a federal judge has ruled that LifeLock has been breaking California law for years by placing fraud alerts on its customer's credit profiles. The decision is a blow to the burgeoning identify-theft protection industry, and means that companies that experience data breaches may no longer be able to offer victims free subscriptions to such services - a standard damage-control tactic in recent years. Consumers can still place fraud alerts by contacting one of the three U.S. credit reporting agencies directly. Bo Holland, founder and CEO of Debix, a competitor of LifeLock, called the ruling "dramatic and unexpected." "It causes a real shift in the industry," he told Threat Level. The pre-trial partial summary judgment comes in a lawsuit filed last year against LifeLock by Experian, one of the nation's three credit reporting bureaus. Experian claimed LifeLock is trying to "game the system" of fraud alerts to make a profit.