And a new law on forensic DNA

Today, April 25, is National DNA Day here in the United States.

It’s a day to celebrate “the successful completion of the Human Genome Project in 2003 and the discovery of DNA’s double helix in 1953,”¹ credited to Cambridge University scientists James D. Watson and Frances H.C. Crick.

Of course, neither of those events actually occurred on April 25th. Watson and Crick published their report about it on April 25, 1953, but had already announced their belief that they might have determined the double-helix structure of DNA earlier that year, and their lab director had announced it on April 23.² (And let there be no mistake here — deserving credit as well is an English chemist and X-ray crystallographer named Rosalind Franklin, who did much of the early data modeling.³) The successful completion of the Human Genome Project was announced on April 14, 2003, by the National Human Genome Research Institute (NHGRI), the Department of Energy (DOE) and their partners in the International Human Genome Sequencing Consortium.⁴

Those nitpicks aside, it’s usually a day to check out the various sales on DNA kits at the various DNA testing companies and to greedily look forward to new matches. And there are indeed sales again this year: check out the DNA Day sales at 23andMe (ends today), at MyHeritage DNA (ends today); at Family Tree DNA (ends tomorrow); and at LivingDNA (no expiration stated).

This year — 2021 — it’s also a day to note the passage of a new statute in one state to rein in law enforcement use of genealogical databases for criminal investigations.

Maryland House Bill 240, with the unwieldy title of “Criminal Procedure – Forensic Genetic Genealogical DNA Analysis, Searching, Regulation, and Oversight,” is now awaiting the Governor’s signature and passed in both chambers of the Maryland General Assembly by veto-proof margins: the House of Delegates by a vote of 136-1 and the Senate by a vote of 46-0.⁵

And here, in a nutshell, is some of what the law will do:

• Limit police use of forensic genetic genealogy techniques to cases involving commission or attempts to commit murder, rape, felony sexual offenses, and criminal acts involving “circumstances presenting a substantial and ongoing threat to public safety or national security”;

• Require police in Maryland to get a court order before they can begin the process of using genealogical and other direct-to-consumer databases in criminal investigations;

• Limit police use to only those databases that give explicit notice to their customers that such use is permitted;

• Require police to obtain informed consent from any third party they wish to test to aid in the investigation and bar police from covertly collecting a sample from anyone who’s refused to test;

• Require police to get a court order before collecting DNA from a third party, expressly barring an order based just on the fear that the third party may refuse to consent;

• Require licensing of any laboratories used for forensic DNA analysis; and

• Require licensing of any forensic genealogist who works with police on these cases.

There’s more overall in the bill — you can read more here including explanatory statements — but those are the key elements.

In many respects, it follows the U.S. Justice Department’s policy on forensic genetic genealogy, which went into effect in 2019 and which govern — and in some respects reins in — the use of genealogical DNA databases in criminal investigations conducted by federal agents and all state and local investigations that use Justice Department funds.⁶

As such, it addresses many of the ethical and privacy concerns that genealogists have had since the first intrusions of law enforcement into genealogical databases without notice to or anything remotely resembling informed consent by consumers were reported in 2018. And as the first-of-its-kind state statute, assuming it’s signed by Maryland’s governor or becomes law over any veto, it sets the baseline and may well serve as a model for legislation elsewhere.

Now… here’s what it doesn’t do:

It doesn’t impact any genealogist who isn’t working with the police or on a police-related case.

We are not going to need to get a license to ask our cousins in Maryland to take a DNA test for us. Even professional genealogists won’t need a license or any special procedures to help Marylanders figure out who their second great grandparents are — or even who their biological parents are.

This legislation limits the police and those forensic genealogists who work with the police — and no-one else.

Happy DNA Day.

Cite/link to this post: Judy G. Russell, “DNA Day 2021,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 25 Apr 2021).

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