By Amy E. Feldman

PHILADELPHIA (CBS) - A federal appeals court in San Francisco is preparing to hear arguments on whether a law that requires everyone who is arrested to give a DNA sample is unconstitutional. Well? Is it?

The Federal Government currently collects and maintains a national DNA database. Originally created to track sex offenders, it now keeps DNA for all people convicted of a federal crime.

But now, many states are passing laws that allow law enforcement to collect DNA samples at arrest, even if there isn’t a conviction. Law enforcement officials argue that when anyone is arrested for a crime – even if he’s not convicted – the first thing that happens is that he’s fingerprinted – and those fingerprints are stored even if the suspect is never found guilty of any crime. But privacy advocates say there’s a difference: while a fingerprint will show only whether a particular person was at a place where a crime took place, a DNA sample will give much more information than just whether someone was there – including the suspect’s gender, ethnicity, genetic diseases, and all sorts of other information that many don’t like the government taking without getting a warrant.

So this is clearly one of those cases where the technology is created first and then the law needs to play catch up to figure out how and when it is legal to use it. If you were the judge, how would you decide?