And raise questions that need answers
The disclosure earlier this year that a DNA database used almost exclusively by genealogists to help answer family history questions had been used by law enforcement to solve a cold murder case has sparked a continuing — and growing — ethical debate.
When, if ever, is it appropriate (legally and ethically) for the police to use DNA samples submitted for genealogical research as part of their investigations?
Despite the enthusiasm over what everyone hopes will be the solution to the Golden State Killer case — with the arrest of a suspect (but remember: no conviction as yet) in a horrific series of murders and rapes in California years ago1 — this is not an easy question.
What has become clear as time has passed is this essential dichotomy:
…in California, familial searches can only be performed using the database of convicted individuals in cases of serious crimes with public safety implications where all other investigatory methods have been exhausted, and where single-source high-quality DNA is available for analysis. Further, California policy separates the genealogical investigative team from local detectives, so as to minimize the impact of incidental findings (such as unexpected non-paternity).
No such regulations currently govern law enforcement searches of public genealogical databases…2
Familial searches, by definition, are the kinds of searches genealogists do every day in genetic genealogy databases: searches for family members who might have information we can use in building our family history, often people previously unknown to us. In the law enforcement context, a familial search is a search of a database not so much to find a suspect but to find members of the suspect’s family whose information might lead to the suspect.3
Clearly, the genealogical community is split over this issue. Some have no concerns about the use of their data to identify suspects in serious criminal cases. Others — The Legal Genealogist included — have expressed their discomfort with unregulated police access to recreational databases.4
And now the forensic community and bioethicists are weighing in, along with genealogists, lawyers and others… and the ethical questions continue to mount.
Here are some articles those who want to know more may wish to read, in reverse chronological order:
• Max Mitchell, “As Genealogy Databases Aid in Crime-Solving, Are Courts Ready to Tackle DNA Privacy?,” The Legal Intelligencer, posted 23 July 2018 (https://www.law.com/thelegalintelligencer/ : accessed 29 July 2018).
• Chris Phillips, “The Golden State Killer investigation and the nascent field of forensic genealogy,” FSI Genetics 36 (Sep 2018): 203-204, posted 17 July 2018 (https://www.fsigenetics.com/ : accessed 29 July 2018).
• Denise Syndercombe Court, “Forensic genealogy: Some serious concerns,” FSI Genetics 36 (Sep 2018): 186-188, posted 15 July 2018 (https://www.fsigenetics.com/ : accessed 29 July 2018).
• Nathan Scudder et al., “Crowdsourced and crowdfunded: the future of forensic DNA?,” Australian Journal of Forensic Sciences, posted 5 July 2018 (https://www.tandfonline.com/doi/ : accessed 29 July 2018).
• Dina Fine Maron, “Cold Cases Heat Up as Law Enforcement Uses Genetics to Solve Past Crimes,” Scientific American, posted 2 July 2018 (https://www.scientificamerican.com/ : accessed 29 July 2018).
• Connecticut Editorial Board, “Golden State Killer Case Raises Legal, Ethical DNA Issues,” Connecticut Law Tribune, posted 8 June 2018 (https://www.law.com/ctlawtribune/ : accessed 29 July 2018).
• Paul Woodbury, “The Secrets in Your Spit: Using Genetic Genealogy to Solve Cold Cases,” Legacy Tree Genealogists, posted 4 June 2018 (https://www.legacytree.com/blog/ : accessed 29 July 2018).
• Carolyn Crist, “Experts outline ethics issues with use of genealogy DNA to solve crimes,” Reuters Health, posted 1 June 2018 (https://www.reuters.com/ : accessed 29 July 2018).
• “After The Golden State Killer, The Ethics Of Genetic Testing,” Science Friday, posted 4 May 2018 (https://www.sciencefriday.com/ : accessed 29 July 2018).
• Editorial Board, “The ethics of catching criminals using their family’s DNA,” Nature.com, posted 2 May 2018 (https://www.nature.com/ : accessed 29 July 2018).
• Adhiti Bandlamudi, “Tactics Used To Find Golden State Killer Raise Privacy And Legal Questions,” NPR All Things Considered, posted 27 April 2018 (https://www.npr.org/ : accessed 29 July 2018).
Remember this: this kind of search is considered so intrusive and so potentially powerful under California’s laws that that state’s own database of convicted criminals could not have been conducted without safeguards.
And no safeguards — none at all except those the testing companies impose themselves — exist to govern the police when they search our databases of our samples submitted not because anyone was convicted of a crime but solely for genealogical research.
That’s where we are, legally, on this issue.
It’s up to us to help develop the rules to determine if this is where we want to end up, ethically, on this issue.
SOURCES
- See generally Dan Barry, Tim Arango and Richard A. Oppel Jr., “With Taunts and Guile, the Golden State Killer Left a Trail of Horror,” New York Times, 28 Apr 2018 (https://www.nytimes.com/ : accessed 28 Apr 2018). ↩
- Stephanie Fullerton and Rori Rohlfs, “Should Police Detectives Have Total Access to Public Genetic Databases?,” Leapsmag: Thinking into the Future, posted 23 July 2018 (https://leapsmag.com/ : accessed 29 July 2018) (emphasis added). ↩
- See “What is Familial Searching?,” Forensic DNA Education for Law Enforcement Decision Makers, National Forensic Science Technology Center, Florida International University (https://projects.nfstc.org/ : accessed 29 July 2018). ↩
- See e.g. Judy G. Russell, “The bull in the DNA china shop,” The Legal Genealogist, posted 29 April 2018 (https://www.legalgenealogist.com/blog : accessed 29 July 2018). ↩
Thank you for making these articles easily accessible to us, Judy. I have such mixed feelings about this. It’s important for all of us in the genealogical community, and especially the forensic genealogical community, to educate ourselves regarding the issues.
I have the same disquieting doubts, Catherine — there’s such potential for good, but also for evil.
Inevitably there is going to be some serious hard knocks for forensic genealogists and the profession, a test case, something in which the work of the genealogist is challenged. It is soooooo important that the genealogists protect themselves by adhering to standards of the profession. The DNA evidence alone may be enough to convict, but the defense can try to impeach, damage the credibilityof the genealogist. A bad result can damage the whole forensic geenalogy profession.
California’s overall law enforcement database DNA database potentially includes anyone *arrested* for a felony, since Prop 69 (2004) a felony *conviction* is not required. Although your quoted text refers to “the database of convicted individuals” I would be surprised if the searches being discussed do not actually include the entire database collected by the State whether convicted or not.
In that light, a distinction some might want to draw between the law enforcement DNA database and gedmatch in particular – that the data one originate involuntarily while the other is made public voluntarily – may be more meaningful.
It does seem to me that gedmatch may be unique in this space, or nearly so. Its terms of service DO allow for law enforcement use under specified conditions. In contrast, as I read it a law enforcement agency would be in violation of the AncestryDNA terms of service from the moment they submitted a suspect’s sample (they are neither the individual nor do they have a POA), so trying to use AncestryDNA (in particular) in this way would be seem to be pointless.
Does it not require that fingerprinte and DNA results be expinged from the file if the suspect is found not guilty? Many other states require that.
In CA, an acquitted defendant has to get a court order to be removed from the state’s DNA database.
Reuters reports that the Canadian government is using DNA to try to determine the nationality of migrants. “A VICE News report on Thursday quoted an immigration lawyer whose client is being investigated by the CBSA using DNA and the ancestry database FamilyTreeDNA.com. In that case, the Canadian authorities were trying to deport a migrant who said he was from Liberia, speculating he was instead from Nigeria based on DNA testing and a linguistics report.” https://www.reuters.com/article/us-canada-immigration/canada-using-dna-ancestry-websites-to-investigate-migrants-idUSKBN1KH2KF
There is another element involved besides law enforcement. These are government agencies like the NSA plus the CIA. These agencies can come in and under the guise of secrecy copy all of these databases (they probably already have) and forbid these companies to even acknowledge to their clients their DNA has been confiscated. Sound paranoid? Probably, but betcha a dollar to a donut hole it’s already happened.
Another article to read:
May, Thomas, PhD; Sociogenetic Risks – Ancestry DNA Testing, Third-Party Identity, and Protection of Privacy; N Engl J Med 379:5, August 2, 2018, pp 410-412.
You will need access to a biomedical library or a subscription or a friend who subscribes.
This is, indeed, a sticky question — although I’m a little more sanguine than many. Since using the genealogy DNA databases requires actual genealogy work and isn’t the slam dunk the newspapers would have us believe, I’m somewhat okay with it. On the other hand, because the newspapers would have us believe it actually is a slam dunk, this causes undue alarm among the uneducated (with regard to genealogical DNA testing) public.
Coincidentally, I just read the FamilyTreeDNA terms and policies right before seeing this post. I’m pretty well convinced that they won’t knowingly give up any data to law enforcement unless it’s extracted from them with hot pincers. They seem to take privacy very seriously, which is foremost on my mind in almost any case.
There’s also my contention — and Judy, the non-practicing lawyer, can tell me if I’m way off base — that the Constitution, especially via the Bill of Rights, makes it clear that in the US the rights of the individual outweigh those of the government. Nothing is absolute, of course, but the government’s interest in the data had better be pretty compelling if I ever get on the jury in a case involving whether or not they were out of bounds.
I just saw something, on Slashdot of all places, about how several of the big firms agree on rules regarding transfer of data to 3rd parties. Any comments om that?
I haven’t had a chance to really analyze it yet but it’s on my schedule.