Full opinion text
MEMORANDUM OPINION WALTON, District Judge. The plaintiff brings this action alleging that the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135b, (“the DNA Act”) and D.C.Code § 22-4151, which was enacted by the District of Columbia to implement in the District of Columbia the objectives of the DNA Act, violate the Fourth and Fifth Amendments to the United States Constitution; the Ex Post Facto Clauses of Article 1, sections 9 and 10 of the Constitution; the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), '42 U.S.C. §§ 1320d to d-8; and the International Convention of the Elimination of all Forms of Racial Discrimination (CERD). Complaint (“Compl.”) ¶¶ 14-20. The defendants, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), have filed a motion to dismiss this action. Defendants’ Motion to Dismiss at 1. Currently before the Court are the Defendants’ Memorandum in Support of Motion to Dismiss (“Defs.’ Mem.”); the Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Pl.’s Opp’n”); and the Defendants’ Reply in Support of Motion to Dismiss (“Defs.’ Reply”). For the reasons set forth below, this Court grants the defendants’ motion. I. Background (A) Statutory History Under the Violent Crime Control and Law Enforcement Act of 1994 (“1994 Act”), 42 U.S.C. § 14132, “Congress authorized the FBI to create a national index of [deoxyribonucleic acid (“DNA”) ] samples taken from convicted offenders, crime scenes and victims of crime, and unidentified human remains.” H.R.Rep. No. 106-900 at 8 (2000). In response to this congressional mandate, the FBI established the Combined DNA Index System (“CO-DIS”). Id. The CODIS database provides a means for State and local forensic laboratories to share DNA profiles in an attempt to “link evidence from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the system.” Id. However, the 1994 Act was interpreted by the FBI to only permit the creation of the CODIS, not the taking of DNA samples of persons convicted of federal offenses for input into the system. Id. Thus, “the FBI requested that Congress enact statutory authority to allow the taking of DNA samples from persons committing Federal crimes of violence, robbery, and burglary, or similar crimes in the District of Columbia or while in the military, and authorizing them to be included in CODIS.” Id. Accordingly, Congress passed the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), 42 U.S.C. § 14135 et seq., which authorizes the “Attorney General to make grants to eligible States ... to carry out, for the inclusion in the Combined DNA Index System of the Federal Bureau of Investigation, DNA analyses of samples taken from individuals convicted of a qualifying State offenses.” 42 U.S.C. § 14135(a)(1). Moreover, the DNA Act provides that “[t]he Director of the Bureau of Prisons shall collect a DNA sample from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of a qualifying Federal offense” and that “the probation office responsible for the supervision under Federal law of an individual on probation, parole, or supervised release shall collect a DNA sample from each such individual who is or has been, convicted of a qualifying Federal offense.” 42 U.S.C. § 14135a(a)(l)-(2). In addition, Congress has mandated the collection of DNA samples from “each individual in the custody of the Bureau of Prisons who is, or has been convicted of a qualifying District of Columbia offense” or any “individual under the supervision of the Agency who is on supervised release, parole, or probation who is, or has been convicted of a qualifying District of Columbia offense.” 42 U.S.C. § 14135b(a)(l)-(2). Congress left to the District of Columbia the responsibility of determining which offenses under the District of Columbia Code should be deemed qualifying offenses. 42 U.S.C. § 14135b(d). The District of Columbia has determined that forty-nine separate offense qualify for collection under the DNA Act. See, D.C.Code § 22-4151(1)— (46). These qualifying offense include, for example, arson, aggravated assault, burglary, kidnaping, robbery, attempted robber and carjacking. Id. Once a DNA sample is entered into the CODIS database, the information can only be released (1) “to criminal justice agencies for law enforcement identification purposes;” (2) “in judicial proceedings;” (3) “for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged;” or (4) “if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes.” 42 U.S.C. § 14132(b)(3). In addition, the DNA Act imposes criminal penalties for individuals who improperly disclose sample results or improperly obtains or uses DNA samples. 42 U.S.C. § 14135e(c). (B) Factual Background On December 20, 2001, the plaintiff, Lamar Johnson, was convicted in the Superi- or Court of the District of Columbia of two counts of unarmed robbery in violation of D.C.Code § 22-2801. Compl. ¶4. On March 15, 2002, the plaintiff was sentenced to a one year prison sentence and placed on two years supervised release for each conviction. Id. However, execution of both sentences were suspended and the plaintiff was placed on two years probation for each offense, which were designated to run concurrently. Id. On or around February 18, 2004, prior to the expiration of the plaintiffs probationary term, the defendants, pursuant to the DNA Act and D.C.Code § 22-4151, demanded that the plaintiff provide a sample of his DNA for inclusion in the CODIS because he had been convicted of a predicate offense. Id. ¶ 9; see also Compl., Ex. A; D.C.Code § 22-4151(27) (listing violations of D.C.Code § 22-2801 (robbery) as a qualifying offense). The plaintiff refused to provide a DNA sample, and a judge of the Superior Court of the District of Columbia ordered the plaintiff to show cause why his probation should not be revoked because of this refusal. Compl., Ex. B (Show Cause Order signed by Judge Campbell, Associate Judge of the Superior Court of the District of Columbia). On March 18, 2004, the plaintiff filed a complaint in this Court, seeking a temporary restraining order (“TRO”) to prevent the defendants from requiring that he provide a DNA sample. Motion for a Temporary Restraining Order at 1. Before this Court could resolve the TRO, the parties filed a Motion to Resolve Certain Preliminary Matters, which proposed to resolve the need for emergency injunctive relief. In the motion, the plaintiff agreed to provide a blood sample to the defendants, and the defendants agreed to delay processing that sample until after the plaintiffs claims in this action and any subsequent appeals had been resolved. The motion was granted by this Court and the motion for a TRO was denied. The parties then filed their papers which are the subject of this opinion. II. Standards of Review Under Rule 12(b)(1), which governs motions to dismiss- for lack of subject matter jurisdiction, “[t]he plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence.” Pitney Bowes, Inc. v. United States Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998). In reviewing such a motion, this Court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Additionally, in deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in its effort to determine whether, the court has jurisdiction in the case. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n. 3 (D.C.Cir.1997); Herbert v. Nat’l Academy of Sciences., 974 F.2d 192, 197 (D.C.Cir.1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 14 (D.D.C.2001). On . a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the alleged facts. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004) (citing Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference into the complaint, and matters about which the Court may take judicial notice. St. Francis, 117 F.3d at 624-25. The Court will dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45^46, 78 S.Ct. 99. III. Legal Analysis The plaintiffs complaint sets forth seven claims. Compl. ¶¶ 14-20. These claims assert that it is illegal to demand the plaintiffs DNA while he was on probation, but that it is also illegal for the defendants to retain the plaintiffs DNA sample and any information derived from the sample now that he has completed his probationary term. The Court begins its analysis by discussing whether the DNA Act and D.C.Code § 22-4151 violate any constitutional or statutory rights of the plaintiff while he was on probation. The Court will conclude with a discussion of whether the plaintiff, now that he has completed his probationary term, has a right to have his DNA sample and analysis thereof expunged from the CODIS system. As discussed more fully below, none of the plaintiffs claims have merit. (A) Fourth Amendment Claim The plaintiff first contends that the DNA Act and D.C.Code § 22-4151 violate the Fourth Amendment’s guarantee to be free from unreasonable searches and seizures. Compl. ¶ 14. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. It is not disputed that the involuntary taking of a DNA sample is a search under the Fourth Amendment. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 618, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches”). Moreover, it is undisputed that a warrant was never issued requiring the plaintiff to provide a DNA sample. Accordingly, the focus of this Court’s inquiry regarding the plaintiffs Fourth Amendment claim is whether the statutory requirement that he provide the sample is reasonable or falls within one of the Amendment’s exceptions to the warrant- and-probable cause requirements. In a recent case substantially analogous to the case at hand, the Ninth Circuit sitting en banc, provided an exhaustive overview of the law in this area. United States v. Kincade, 379 F.3d 813, 822-830 (9th Cir.2004) (en banc). While this Court need not engage in the same extensive overview, it is helpful to this Court’s analysis to briefly review recent developments in Fourth Amendment jurisprudence. “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)). In addition to this fundamental assessment of reasonableness based on the totality of the circumstances, there are a number of exceptions to the warrant- and-probable cause requirements of the Fourth Amendment. Kincade, 379 F.3d at 822. The Ninth Circuit in Kincade labeled the first of these exceptions as “exempted areas,” which includes searches at the borders, airports, and entrances to government buildings.. Id. The second exception encompasses “administrative searches,” which includes inspections of closely-regulated businesses. Id. at 823. And finally, there is a “special needs” exception to the warrant-and-probable cause requirement. Cases involving this third exception “involve searches conducted for important non-law enforcement purposes in contexts where adherence to the warrant-and-probable cause requirement would be impracticable.” Id. Thus, the question this Court must answer is whether the search and seizure at issue in this case (the taking of a DNA sample from a qualifying convicted felon) falls under one of these exceptions to the warrant clause of the Fourth Amendment or whether, based on the totality of the circumstances, it is reasonable. While the issue presented to the Court is one of first impression in this Circuit, many other Federal Circuit, Federal District and state courts throughout the country have weighed in on this issue and have resoundingly concluded that the DNA Act and similar analogous state statutes do not violate the Fourth Amendment’s protection against unreasonable searches and seizures. In Kincade, the Ninth Circuit, sitting en banc, held that the DNA Act did not violate the Fourth Amendment. Kincade, 379 F.3d at 840. However, as the Ninth Circuit noted in Kincade, courts are split as to the proper analytical framework to apply in resolving this question. One set of courts, including the Ninth Circuit, have applied the traditional totality of the circumstances analysis to assess reasonableness and have concluded that the DNA Act (and similar state statutes) áre constitutional. See Kincade, 379 F.3d at 831 (citing over twenty cases in which an assessment of the totality of the circumstances was utilized). On the other hand, other courts have upheld the constitutionality of the DNA Act (and similar state statutes) under a “special needs” analysis. See Kincade, 379 F.3d at 830-31 (citing twelve cases in which a special needs assessment was utilized). While this Court believes that the DNA Act can be upheld under either analysis, for the reasons articulated by the Ninth Circuit in Kincade, this Court believes, as do a majority of other courts which have examined this issue, that the traditional totality of the circumstances analysis is the more appropriate legal framework under which to analyze this question. To gauge the reasonableness of requiring the plaintiff to provide a DNA sample under the totality of the circumstances standard, the Court must balance the plaintiffs privacy interest against the public interests served by acquiring the sample. The Court begins its analysis by first assessing the plaintiffs privacy interests implicated by this search. Knights, 534 U.S. at 119, 122 S.Ct. 587. The District of Columbia Circuit has noted that “[t]he protections of the Fourth Amendment are graduated in proportion to the privacy interests affected. Decreasing levels of intrusiveness require decreasing levels of justification.” Willner v. Thornburgh, 928 F.2d 1185, 1188 (D.C.Cir.1991). It is settled law that individuals on probation, just like parolees and other conditionally released criminal offenders, “are not entitled to the full panoply of rights and protections possessed by the general public.” (Kincade, 379 F.3d at 833; Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998)). In fact, the Supreme Court has held that individuals on conditional release have “only ... conditional liberty properly dependent on observances of special parole restrictions” that extend “substantially beyond the ordinary restrictions imposed by law on an individual citizen.” Morrissey v. Brewer, 408 U.S. 471, 478, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). These type of restrictions “are meant to assure that the [conditional release terms] serve as a period of genuine rehabilitation and that the community is not harmed by the [re-leasee]’s being at large. These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.” Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). Accordingly, “the Supreme Court ... has noted that conditional re-leasees enjoy severely constricted expectations of privacy relative to the general citizenry — and that the government has a far more substantial interest in invading their privacy than it does in interfering with the liberty of law-abiding citizens” Kincade, 379 F.3d at 834 (citing Knights, 534 U.S. at 119-20, 122 S.Ct. 587; Ferguson v. City of Charleston, 532 U.S. 67, 79 n. 15, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001); Griffin, 483 U.S. at 874-75, 107 S.Ct. 3164). In this case, the plaintiff claims a privacy interest in the “detailed personal information obtainable from a DNA sample.” Pl.’s Opp’n at 13. In its simplest form, the plaintiff asserts a privacy interest in his identity. Kincade, 379 F.3d at 837 (a DNA sample taken from a probationer merely establishes a record of the plaintiffs identity). However, as discussed above, the plaintiff, at least during the time he was on probation, had a diminished expectation of privacy. Thus, while he does have a privacy interest in his identity, his interest does not have the same status as that of an individual who has never been convicted of a qualifying offense as classified by the DNA Act and the District of Columbia Code. Moreover, courts have routinely held, and this Court finds no compelling reason to deviate from these holdings, that “[o]nce a person is convicted of one of the felonies included as a predicate offense under [the DNA Act], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.” Rise v. Oregon, 59 F.3d 1556, 1560 (9th Cir.1995); Groceman v. Dep’t of Justice, 354 F.3d 411, 413-14 (5th Cir.2004); Jones v. Murray, 962 F.2d 302, 306-07 (4th Cir.1992). The Court’s next step is to examine the public interest prong of the totality of the circumstances test. In this case, it is clear that the DNA Act and D.C.Code § 22-4151 further a compelling public interest. First, DNA profiling can link conditionally released offenders to crimes committed while on release, which helps to ensure that such individuals comply with the requirements of the their conditional release. Scott, 524 U.S. at 365, 118 S.Ct. 2014. It is well-settled that rates of recidivism among parolees and probationers is high and DNA testing can deter such individuals from engaging in further illegal conduct knowing that they might be identified by DNA. Scott, 524 U.S. at 365, 118 S.Ct. 2014; Knights, 534 U.S. at 120, 122 S.Ct. 587; Griffin, 483 U.S. at 875, 107 S.Ct. 3164; United States v. Crawford, 372 F.3d 1048, 1069-70 (9th Cir.2004) (Trott, J., concurring). Moreover, in addition to helping solve crimes that may occur in the future, DNA profiling may help resolve past crimes and “help[ ] bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large.” Kincade, 379 F.3d at 839. This Court agrees with the Ninth Circuit that “the weight of these interests in monumental.” Id. Balancing the private and public interests here, it is clear that the public’s interests far outweigh the plaintiffs interest and thus the taking of his DNA sample does not violate the Fourth Amendment, especially in light of the fact that the plaintiff, while he was on probation, has a diminished expectation of privacy. In addition, the Court notes that the actual physical intrusion in securing a DNA sample is minimal. The Supreme Court concluded long ago that “the intrusion occasioned by a blood test is not significant, since such ‘tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.’ ” Skinner, 489 U.S. at 625, 109 S.Ct. 1402 (quoting Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). Moreover, the DNA Act applies only to anyone who has been convicted of one of the predicate offenses and there is no discretion regarding who is selected for DNA sampling. “By ensuring that blood extractions will not be ordered randomly or for illegitimate purposes, [the DNA Act] fulfills a principal purpose of the warrant requirement.” Rise, 59 F.3d at 1562. This reason further supports the finding that searches and seizures conducted pursuant to the DNA Act are reasonable. In conclusion, it is the Court’s view that upon weighing the individual privacy rights of the plaintiff against the compelling public interest as discussed above, that the totality of the circumstances favor the defendants’ side of the totality of the circumstances analysis, and therefore, the plaintiffs Fourth Amendment challenge to the DNA Act and D.C.Code § 22-4151 must be rejected. (B) Fifth Amendment Substantive Due Process Claim Next, the plaintiff makes a Fifth Amendment substantive due process claim against the DNA Act and D.C.Code § 22-4151. Specifically, the plaintiff posits that as “a free citizen who has entirely paid his debt to society, [he] objects to the tremendously invasive and utterly suspicionless search with the potential to reveal his most intimate genetic and medical information.” Pl.’s Opp’n at 18. It appears that what the plaintiff is alleging is that the DNA Act and D.C.Code § 22-4151 violate his right “to protect [his] genetic information from disclosure[ ]” and that this amounts to a substantive due process violation. Pl.’s Opp’n at 20. The Fifth Amendment provides that no person may “be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. In reviewing substantive due process claims, the Supreme Court has instructed that there are two features to such a claim. “First, [the Court has] regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal citations omitted). Second, the Court requires “in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.” Id. (internal citations omitted). Thus, the “[Fifth] Amendment ‘forbids the government to infringe [on] ... ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Id. (internal citations omitted). Other courts that have addressed this same substantive due process challenge to the required submission of DNA samples by conditionally released offenders have declared that the “drawing of blood by a medical professional in an acceptable environment is not offensive to the ordinary sense of justice, and therefore, not viola-tive of the Due Process Clause.” Vore v. Dep’t of Justice, 281 F.Supp.2d 1129, 1138 (D.Ariz.2003) (citing Schmerber v. California, 384 U.S. 757, 759-60, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)); see also Rise, 59 F.3d at 1562-63; Groceman v. Dep’t of Justice, 2002 WL 1398559, at *4 (N.D.Tex.2002); Miller v. U.S. Parole Comm’n, 259 F.Supp.2d 1166, 1169-70 (D.Kan.2003). However, despite the analyses these courts conducted, this Court concludes that a substantive due process analysis is actually unnecessary. In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court held that “[wjhere a particular [Constitutional] Amendment provides an explicit textual source of constitutional protection against a particular sort of governmental behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham, 490 U.S. at 395, 109 S.Ct. 1865); see also United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (“Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.”). A substantive due process analysis is therefore inappropriate in this case if the plaintiffs claim is covered by the Fourth Amendment. County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Here, it is clear that the plaintiffs constitutional challenge is “covered by” the Fourth Amendment. As discussed above, it is without question that the taking of blood for DNA analysis is a “search and seizure” under the Fourth Amendment. Accordingly, the Fourth Amendment, and not the substantive due process guarantees of the Fifth Amendment, is the proper benchmark under which the plaintiffs claim must be evaluated. The plaintiffs substantive due process claim must therefore be dismissed. (C) Fifth Amendment Procedural Due Process Claim The plaintiff also challenges the constitutionality of the DNA Act and D.C.Code § 22-4151 on the ground that “[t]he taking of Mr. Johnson’s DNA without cause, without any legitimate governmental purpose and entirely without any mechanism or opportunity for Mr. Johnson to object violated Mr. Johnson’s right to procedural due process.” Pl.’s Opp’n at 22. Here, the crux of the plaintiffs argument is that the two statutory provisions do not require individualized determinations, prior to the blood sample being taken, that qualifying individuals are “likely to recidivate via a crime with biological evidence.” Pl.’s Opp’n at 22-23. In addition, the plaintiff contends that the DNA Act “has no internal guidelines for determining if a particular individual has actually been convicted of [a] qualifying offense.” Id. at 23. The plaintiff opines that because the statute is without procedural mechanisms to challenge the government’s collection of the sample, and to petition for the destruction or return of a sample once an individual has completed his term of community supervision, nor do the statutes place a limitation on the government’s use of the information acquired from the sample, there is a high risk of erroneous deprivation of the plaintiffs liberty interest in his DNA. Id. at 24. This challenge must also be rejected. Similar arguments have been rejected by both the Ninth and Tenth Circuits. In Rise, the Ninth Circuit concluded that “[t]he extraction of blood from an individual in a simple, medically acceptable manner, despite the individual’s lack of an opportunity to object to the procedure, does not implicate the Due Process Clause.” Rise, 59 F.3d at 1562-63. Moreover, the Court noted that “[bjecause the only criterion under [the DNA Act] for extracting blood is a conviction for a predicate offense, there would be little of substance to contest at any provided hearing.” Id. at 1563. Accordingly, the Ninth Circuit rejected the plaintiffs procedural due process claims. The Tenth Circuit, relying on part in the Ninth Circuit’s decision in Rise, also rejected the arguments that a plaintiff was denied procedural due process when his blood was taken for a DNA sample. Boling v. Romer, 101 F.3d 1336, 1340-41 (10th Cir.1996). Most recently, the United States District Court for the District of Kansas, relying on Boling, concluded that there was no procedural due process violation by requiring the plaintiffs to submit a blood sample pursuant to the DNA Act. Miller, 259 F.Supp.2d at 1169-70. Miller also noted that “even if [the] Plaintiffs challenge is the enactment of the law, rather than the method of the blood draw, his argument fails. When legislation affects a general class, the legislative process satisfies due process requirements.” Id. at 1169. “The fundamental requirement of [procedural] due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey, 408 U.S. at 481, 92 S.Ct. 2593. In resolving claims that an individuals procedural due process rights have been violated, three factors are considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. 893. Applying the three Mathews factors here, it is clear that the plaintiffs procedural due process claim has no merit. This Court has already discussed at length the applicable private and public interest in its discussion of the plaintiffs Fourth Amendment claim. As discussed previously, the private interest at stake in this case is the plaintiffs right to the privacy of his identifying information, i. a, his DNA sample and the information derived from it. However, as this Court discussed in its Fourth Amendment analysis, this privacy right was significantly diminished while the plaintiff was on probation. . On the other hand, the government has a compelling interest to ensure that individuals who are on probation do not commit any further crimes and to solve both past, and future crimes, which trumped the plaintiffs diminished privacy rights. Thus, the only factor that warrants additional discussion here is the risk of erroneous deprivation. As to this remaining factor, the plaintiff argues that the DNA Act “has no internal guidelines for determining if a particular individual has actually been convicted of [a] qualifying offense.” PL’s Opp’n at 23. The plaintiff further opines that because there are no procedures in place to challenge the government’s acquisition and testing of samples, to petition for the destruction or return of a DNA sample once an individual has completed his probation, or limit the government’s use of the information derived from the sample, there is a high risk of erroneous deprivation.of the plaintiffs liberty interest in his DNA. Id. at 24. However, this Court finds that the risk of erroneous deprivation is minimal at best. First, the DNA Act itself provides that a sample can only be collected from an individual who has been convicted of a qualifying offense. Thus, a person will only be required to submit a DNA sample if a judge or jury has determined, beyond a reasonable doubt, that the individual has committed the offense or the individual has acknowledged his guilt by entering a guilty plea. The procedures associated with these judicial proceedings for assessing guilt provide sufficient process to ensure that a person is not erroneously convicted of a predicate offense. In addition, the statute provides that if a conviction for a predicate offense is later overturned or reversed on appeal, the individual’s DNA information may be removed from the CO-DIS database. 42 U.S.C. § 14132(d). Thus, the prospect that an innocent individual’s DNA would be erroneously included in the CODIS database is minimal. Moreover, should there be a question as to the proper application of the statute’s requirements, ie., if an offense is a “qualifying offense” to warrant the taking and processing of a DNA sample, a person can always bring a challenge in a court of competent jurisdiction. Finally, the statute explicitly limits how DNA samples can be used. Namely, the DNA sample, once obtained, is sent to the Director of the Federal Bureau of Investigation for analysis and inclusion in the CODIS database. 42 U.S.C. § 14135b(b). And such analysis is only conducted to determine “identification information in a bodily sample.” 42 U.S.C. § 14135b(e)(2). In conclusion, the risk of erroneous deprivation, while conceivable, is remote. Accordingly, the plaintiffs procedural due process claim is without merit and therefore must be dismissed. (D) Fifth Amendment Equal Protection Claim The plaintiff also contends that the DNA Act and D.C.Code § 22-4151 violate the equal protection component of the Fifth Amendment because they allegedly discriminate against him on the basis of race. PL’s Opp’n at 25. The graveman of this claim is that the two statutory provisions have been created and implemented with discriminatory intent. Id, Specifically, the plaintiff contends that the provisions have a disproportionate impact on racial minorities, especially African Americans males, because, for example, African American males are incarcerated at a much higher rate than white males. Id. at 26-27. Accordingly, the plaintiff opines that a disproportionate number of African American men are subject to mandatory DNA testing. Id. at 26-27. Moreover, the plaintiff posits that the United States has a long history of conducting discriminatory criminal investigations against minorities and disregarding the privacy rights of minorities. Id. at 27. Therefore, the plaintiff argues that because the DNA Act and D.C.Code § 22-4151 were purportedly enacted with an intent to discriminate, his equal protection claim must be reviewed under the “strict scrutiny” standard of review. Id. at 25. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. at 440, 105 S.Ct. 3249. However, “when a statute classifies by race, alienage, or national origin,” courts must apply a “strict scrutiny” standard of review. Id. Accordingly, this Court must first determine what level of review it must employ in this case. The plaintiff argues the DNA Act and D.C.Code § 22-4151 must withstand the heightened standard of review of strict scrutiny because their adoption and implementation have been “motived by ... racially discriminatory purpose[s].” Pl.’s Opp’n at 30. The plaintiffs argument in this regard is meritless. Despite the plaintiffs best effort to parse out portions of the legislative history of D.C.Code § 22-4151, there is simply no evidence, actual or circumstantial, that the District of Columbia Council (“D.C.Council”) enacted D.C.Code § 22-4151 with any discriminatory intent. Moreover, the plaintiff does not point to any evidence in the legislative history of the DNA Act to suggest Congress had a discriminatory motive when it adopted the legislation. In addition, the plaintiff claims that discriminatory intent can be inferred because the government should have been aware of the historical discriminatory impact the criminal justice system has had on racial and ethic minorities also has no merit. The plaintiffs position is similar to arguments rejected by courts concerning whether the Federal Sentencing Guidelines violate the Equal Protection Clause as a result of the statistical proof that African-American’s are convicted more often of drug crimes involving crack cocaine, while Caucasians are convicted at a statistically higher rate for drug offenses involving powder cocaine, which exposes them to less serious punishment. Courts which have addressed this issue have routinely affirmed the differing sentences based on the equal protection rational basis analysis, despite the statistical disparities. See, e.g., United States v. Holton, 116 F.3d 1536, 1548-49 (D.C.Cir.1997); United States v. Watson, 953 F.2d 895, 897-98 (5th Cir.1992). In Holton, the District of Columbia Circuit noted that when analyzing whether the sentencing disparity denies constitutional equal protection, the first inquiry is whether the mandatory crack mínimums discriminate based on race. In order to prove that a faeially neutral statute, such as the one involved here, violates equal protection guarantees, a challenger must demonstrate a racially discriminatory purpose behind the statute. Holton, 116 F.3d at 1548 (citing Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). The court further noted that while “[disparate racial impact can be probative of such purpose, ... it is not dispositive without more.” Id. Applying this analytical framework to this case leads the Court to the conclusion that the plaintiff has simply failed to produce any evidence that the facially neutral statutes at issue here were enacted with a discriminatory purpose. In fact, the only evidence offered by the plaintiff in this regard is proof that the overall criminal justice system nationally, and specifically in the District of Columbia, has a disparate impact on the African American population. And this alone is simply insufficient to demonstrate discriminatory intent. Id. Accordingly, the plaintiffs equal protection challenge must be rejected if there is a rational basis for the statutes’ enactment and enforcement is predicated on a legitimate state interest. City of Cleburne, 473 U.S. at 441, 105 S.Ct. 3249. In fact, the plaintiff has failed to even invoke the protections provided by the Equal Protection Clause. As noted earlier, as a predicate to evoking the protections of the Equal Protection Clause, the plaintiff must demonstrate that he was similarly situated to other non-minority D.C.Code offenders who were treated differently. See Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Cook v. Babbitt, 819 F.Supp. 1, 11 (D.D.C.1993) (citing City of Cleburne, 473 U.S. at 439, 105 S.Ct. 3249). Here, the law in question makes no distinction between offenders on the basis of their race. If an offender is convicted of one of the qualifying offenses, then, without regard to the offender’s race, he or she is required to submit a DNA sample. In any event, as already discussed at length, the government has compelling interests in securing and processing DNA samples of individuals with qualifying convictions, ie., ensuring compliance with conditional release requirements, preventing future crimes, and solving past and future offenses. Clearly, the compulsory taking of DNA samples is rationally related to these legitimate state interests. Therefore, the plaintiffs equal protection claim must be dismissed. (E) Ex Post Facto Clause Claim The plaintiff further argues that the DNA Act and D.C.Code § 22-4151 violate the Ex Post Facto Clause provisions of Article 1, sections 9 and 10 of the Constitution because the D.C.Code provision implementing the DNA Act was signed after the plaintiff was convicted and sentenced in his underlying criminal case. PL’s Opp’n at 31. “The constitutional bar on the enactment of ex post facto laws means that ‘[legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” Blair-Bey v. Quick, 151 F.3d 1036, 1048 (D.C.Cir.1998) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). Thus, [a] law implicates the Ex Post Facto Clause only if it criminalizes conduct that was not a crime when it was committed, increases the punishment for a crime beyond what it was at the time the act was committed, or deprives a person of a defense available at the time the act was committed. Rise, 59 F.3d at 1562 (citing Collins, 497 U.S. at 42-43, 110 S.Ct. 2715). To determine whether a statute violates the Ex Post Facto Clause, the Court must engage in a two step analysis. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). First, this Court must determine if the legislative bodies, through the enactment of the DNA Act and D.C.Code § 22-4151, intended to impose a criminal punishment. Id. If the intention was to impose a criminal punishment, then the Ex Post Facto Clause applies. Id. However, if the legislature intended to create a civil and non-punitive scheme, the Court must determine whether the statute is nevertheless “ ‘so punitive either in purpose or effect as to negate [the legislature’s] intention’ to deem it ‘civil.’ ” Id. Just as courts have upheld the constitutionality of the DNA Act under the Fourth Amendment, so to have courts found that the DNA Act does not run afoul of the Ex Post Facto Clause. See, e.g., Rise, 59 F.3d at 1562; Jones, 962 F.2d at 308-10; United States v. Reynard, 220 F.Supp.2d 1142, 1157-1162 (S.D.Cal.2002); Raines, 857 A.2d at 25-41. The analyses by the courts that have addressed the question are convincing and this Court declines to take a different position. The plaintiff first argues that the DNA Act, as implemented in the District of Columbia by the D.C. Council, is punitive and thus violates the Ex Post Facto Clause. PL’s Opp’n at 32. To support this conclusion, the plaintiff alleges that (1) the District of Columbia statutory provision is codified in Title 22 of the District of Columbia Code which is titled “Criminal Offenses and Penalties;” (2) the Bureau of Prisons and Court Services and Offender Supervision Agency administer the program; and (3) DNA collection is now a condition of probation, making it part of a defendant’s. sentence. Id. Moreover, the plaintiff opines that the D.C. Council, when enacting D.C.Code § 22-4151, intended for the legislation to be punitive in nature. Id. Finally, the plaintiff contends that even if the statute is considered to be civil in nature and not punitive, its effect is sufficiently punitive to implicate the Ex Post Facto Clause. Id. at 33. The Court begins by noting that there are two distinct statutes in play. The first is the DNA Act passed by Congress. 42 U.S.C. § 14135 et seq. The second is the application of the DNA Act by the D.C. Council to certain “qualifying offenses” through the enactment of D.C.Code § 22-4151. The plaintiffs argument attempts to conflates the two statutes, which were created by two separate legislative bodies, in his effort to strengthen his argument that the legislative intent underlying the DNA Act and the District of Columbia implementing statute demonstrate that DNA collection is intended to be punitive. This Court cannot accept the plaintiffs reasoning. The congressionally enacted DNA Act mandates that the Bureau of Prisons and Court Services and Offenders Supervision Agency administer the process of securing DNA samples from qualifying individuals. 42 U.S.C. § 14135b(a)(l)-(2). Moreover, the requirement that qualifying individuals provide DNA samples as a condition of post-conviction community release is also contained in the congressionally enacted legislation. 42 U.S.C. § 14135c. Contrary to the plaintiffs position, the DNA Act was not intended by Congress to be punitive. As noted by another district court: The legislative history of the DNA Act demonstrates that Congress did not create the Act as a means for punishing qualifying offenders for past convictions. Instead, Congress desired to assist law enforcement agencies to perform their basic law enforcement function by “matching] DNA samples from crime scenes where there are no suspects with the DNA of convicted offenders.” 146 Cong. Rec. H8572-01, at *H8575. Additionally, Congress intended to increase the efficacy of the criminal justice system by “eliminating] the prospect that innocent individuals w[ill] be wrongly held for crimes that they did not commit.” Id. at *H8576. Furthermore, Congress desired to prevent violent felons from repeating their crimes in the future. 146 Cong. Rec. S11645-02, at *S11646 (“Statistics show that many of these violent felons will repeat their crimes once they are back in society”). This legislative history indicates that Congress did not authorize blood draws under the DNA Act to “punish” qualifying offenders. Reynard, 220 F.Supp.2d at 1161. This Court agrees with this analysis. It is one thing to impose criminal sanctions for the commission of criminal conduct while it is quite another thing to establish mechanisms designed to deter or detect criminal conduct. The former is punishment, the latter is not. Moreover, as discussed more fully below, the DNA Act does not have the punitive effect necessary to implicate the Ex Post Facto Clause. Id. at 1161-62; see also Jones, 962 F.2d at 309; Rise, 59 F.3d at 1562. In his attempt to demonstrate that the D.C. Council’s enactment of the local qualifying offense component of the DNA Act was intended to be punitive, the plaintiff relies on the location of the provision in the D.C.Code (Title 22 “Criminal Offenses and Penalties”) and the report from the D.C. Council on the bill. Pl.’s Opp’n at 32. First, the location of this provision does not, by itself, show that D.C.Code § 22-4151 was intended by the D.C. Council to be punitive in nature. As noted by the Supreme Court, “[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.” Smith, 538 U.S. at 94, 123 S.Ct. 1140; cf. Johnston v. Comm’r of Internal Revemie, 114 F.3d 145, 150 (10th Cir.1997) (holding that “under the general rules of statutory interpretation, the title to a statutory provision is not part of the law itself, although it can be used to interpret an ambiguous statute.”). Moreover, the plaintiffs reliance on the D.C. Council’s Committee the Judiciary Report on Bill 14-63, entitled the DNA Sample Collection Act of 2001, (April 24, 2001) (hereinafter “D.C. Council Report”), does not aid his cause. The plaintiff first contends that a statement by former Councilmember Harold Brazil supporting an amendment to expand the number of qualifying offenses buttress his conclusion that D.C.Code § 22-4151 was enacted to punish criminal defendants. Pl.’s Opp’n at 32-33 (citing D.C. Council Report at Ills). The Court cannot agree. The Court does not construe the former Councilmem-ber’s statements as reflecting his intent to make the DNA requirement punitive. But even if that construction can be attached to the remarks, they were merely statements by one member of the Council, not the sentiment of the entire body and are thus deserving of little weight. See, e.g., Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980) (“ordinarily even the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history.”). Moreover, the amendment to expand the number of qualifying offenses was not adopted. D.C. Council Report at 15. Accordingly, it appears that the majority of the Council disagreed with former Councilmember Brazil’s position. The plaintiff also references a portion of the Report which reads: “[i]t is the Committee’s view that the mere possibility that someone convicted of a property crime or low level felony may commit a more serious crime in the future is insufficient to justify the significant invasion of privacy at issue here.” Id. at 6. The plaintiff opines that this statement “reveals a clearly retributive legislative rationale in the D.C. Council’s discussion of the appropriate extent of the Act.” Pl.’s Opp’n at 32. The plaintiffs reading of this statement misses the mark. When viewing the Report as a whole, rather than in fragmented sections, it is clear that this' statement reflects the D.C. Council’s view that it had attempted to carefully balance legitimate law enforcement objectives with privacy rights in determining what offenses merited DNA sample collection. This effort to reach the appropriate balance fails to demonstrate that the D.C. Council intended D.C.Code § 22-4151 to be punitive. Such a reading is simply not a reasonable interpretation of the Council’s Report. Thus, since neither the DNA Act, nor the D.C.Code provision implementing it in the District of Columbia were intended to be punitive in nature, this Court must now assess whether the statute is nonetheless so punitive, either in purpose or effect, that the legislative intent becomes irrelevant. In making this second determination, the Court is guided by seven factors enunciated by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 88 S.Ct. 554, 9 L.Ed.2d 644 (1963). Specifically, the Court stated that “[absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.” Id. at 168, 83 S.Ct. 554. Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — -retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Id. at 168-69, 83 S.Ct. 554. Applying these factors to both the DNA Act and the District of Columbia statute does not call for the conclusion that these two statutory provisions violate the Ex Post Facto Clause. First, to assess whether the statutes invoke an “affirmative disability” or “restraint” the Court must “inquire how the effects of the [statute] are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” Hatton v. Bonner, 356 F.3d 955, 963 (9th Cir.2004) (internal quotation marks omitted). In this case, the DNA Act requires individuals to submit only one DNA sample and requires no further action by the individual, therefore, the “affirmative disability or restraint” is minimal. 42 U.S.C. § 14135b(a)(1)-(2) (“The Director of the Bureau of Prisons shall collect a DNA sample ....”) (emphasis added); see Russell v. Gregoire, 124 F.3d 1079, 1082, 1088 (9th Cir.1997) (sex offender registration requirement enacted after plaintiffs conviction held not to violate Ex Post Fact Clause because, inter alia, the restraint placed on the plaintiff to register as a sex-offender was minimal). Second, the plaintiff concedes that although they contend that DNA sampling is punishment, the second factor does not come into play in this case since there is no history of the use of DNA sampling as punishment. See PL’s Opp’n at 33 n. 26. However, as discussed below, there is a history of using conditions of release as a deterrent, and since DNA sampling is a condition of release, it could be viewed as punishment. See, e.g., Reynard, 220 F.Supp.2d at 1162. Third, there is no scienter component to either the DNA Act or D.C.Code § 22-4151. “Fourth, conditions of supervised release have not historically been regarded as punishment, but instead as a means to further the deterrent, protective, and rehabilitative goals of sentencing.” Reynard, 220 F.Supp.2d at 1162 (citing United States v. Eyler, 67 F.3d 1386, 1393 (9th Cir.1995)). This factor could support both the plaintiffs and the defendants’ positions because DNA sampling does serve as a deterrent, but was not created for retribution. Fifth, an individual’s failure to comply with the requirement to provide a sample is punishable under the DNA Act as a separate offense — a class A misdemeanor — as opposed to enhancing the sentence previously imposed for the qualifying offense. 42 U.S.C. § 14135a(a)(5)(A)-(B). In addition, the legislative history of the DNA Act indicates that there is a non-punitive, alternative purpose underlying its enactment — “eliminatfing] the prospect that innocent individuals w[ill] be wrongly held for crimes they did not commit.” 146 Cong. Rec. H8572-01, at *H8576. Balancing these factors, it is clear that neither the DNA Act nor D.C.Code § 22-4151 criminalize any conduct of the plaintiff committed prior to the statutes’ enactment, nor do the statutes inflict any greater punishment for such conduct. Rather, the Act simply, in a reasonable fashion, creates a new regulatory system for the maintenance of DNA samples in order to serve various legitimate law enforcement functions. Moreover, failure to comply with this new regulatory system provides for a penalty separate and apart from the penalty for the underlying qualifying offense. Accordingly, neither the DNA Act nor D.C.Code § 22-4151 offend the Ex Post Facto Clause and the plaintiffs claim asserting this constitutional violation must be dismissed. (F) Health Insurance Portability and Accountability Act Claim The plaintiff also contends that the DNA Act violates the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. §§ 1320d to d-8, by “disclosing highly sensitive medical and genetic, information in which [the plaintiff] has a strong privacy interest.” Compl. ¶ 19. The HIPAA imposes requirements on the Department of Health and Human Services, health plans, and healthcare providers involved in the exchange of health Information to protect the confidentiality of such information and provides for both civil and criminal penalties for individuals who improperly handle or disclose individually identifiable health information. 42 U.S.C. §§ 1320d to d-8. The defendants contend that the HIPAA does not provide for a private right of action and therefore this statutorily based claim cannot be maintained because the government has not waived its sovereign immunity. Def.’s Reply at 16-17. The plaintiff counters that a private right of action can be implied in the statute. Pl.’s Opp’n at 34. In order for this Court to find that there is an implied private right of action under the HIPAA, this Court must determine whether Congress intended to create such a right. Anderson v. USAir, Inc., 818 F.2d 49, 54 (D.C.Cir.1987). Like substantive federal law itself, private, rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (internal citations omitted). While only a handful of courts have examined whether a private right of action is implied under the HIPAA, each Court has rejected the position. See O’Donnell v. Blue Cross Blue Shield of Wyo., 173 F.Supp.2d 1176 (D.Wyo.2001); Brock v. Provident Am. Ins. Co., 144 F.Supp.2d 652 (N.D.Tex.2001); Means v. Indep. Life and Accident Ins. Co., 963 F.Supp. 1131 (M.D.Ala.1997); Wright v. Combined Ins. Co. of Am., 959 F.Supp. 356 (N.D.Mass.1997). In fact, the most recent opinion to address this question was written by another member of this court. In Logan v. Dep’t of Veterans Affairs, 357 F.Supp.2d 149 (D.D.C.2004), after reviewing the HIPAA provisions governing the disclosure of individually identifiable health information, the court concluded that Congress enacted HIPAA, in part, to address concerns about the confidentiality of health information, particularly in the era of electronic communication. Section 262 of HIPAA (codified as 42 U.S.C. §§ 1320d to d — 8) defines terms and imposes requirements on the Department of Health and Human Services (“HHS”), health plans, and healthcare providers involved in the exchange of health information. HIPAA provides for both civil and criminal penalties to be imposed upon individuals who improperly handle or disclose individually identifiable health information. 42 U.S.C. §§ 1320d-5 to d-6. However, the law specifically indicates that the Secretary of HHS shall pursue the action against an alleged offender, not a private individual. Id. at 155. In Logan, a government employee attempted to bring an action against the government for allegedly disclosing individually identifiable health information. The Logan court concluded that the HIPAA did not provide for a private right of action and it therefore did not have subject matter jurisdiction over the plaintiffs HIPAA claim. Accordingly, the claim was dismissed pursuant to Rule 12(b)(1). Id. at 155. Here, the plaintiff challenges, pursuant to the HIPAA, the disclosure of information regarding his DNA. Compl. ¶ 19. Assuming for the sake of argument that the HIPAA prevents the disclosure of this type of medical information, the plaintiff and not the Secretary of HHS has initiated this action. And it is the Secretary who is empowered by the HIPAA to do so. 42 U.S.C. § 1320d-5. Accordingly, because no private right of action exists under the HIPAA, this Court does not have subject matter jurisdiction over this claim and it must be dismissed. (G) International Convention of the Elimination of all Forms of Racial Discrimination The plaintiffs final cause of action is that the DNA Act and D.C.Code § 22-4151 violate the International Convention of the Elimination of all Forms of Racial Discrimination (“CERD”), 660 U.N.T.S. 195. The purpose of the CERD is “to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination.... ” Id. at *54. The defendants argue that the plaintiff does not have a private right of action under the CERD. Defs.’ Mem. at 18. It is well-established in this Circuit that in order for a party to assert a claim under a treaty, the treaty (or clauses therein) must confer such a rights. “Whether a treaty clause does create such enforcement rights is often described as part of the larger questi