The rising attraction of commercial consumer-based genetic databases to law enforcement needs to be balanced by greater attention to privacy rights enshrined in the U.S. Constitution, according to a study published by the Duke Law Journal.
The authors of the study reported on a survey they conducted of public attitudes towards the use of genetic databases for crime-solving—known as forensic genealogy—and other investigative purposes, and found what they called deep concerns over the “intrusiveness” of such methods.
Such concerns “should be an integral consideration in judicial determinations of how these activities should be regulated by the Constitution,” wrote the researchers, Christopher Slobogin, a law professor at Vanderbilt University Law School; and James Hazel, a postdoctoral fellow at the Vanderbilt University Medical Center.
Some 1,597 participants, chosen through an online crowdsourcing marketplace to reflect a diversity in age and background, were interviewed over the course of two weeks in December of 2018. They were asked to respond to 21 short scenarios in which genetic databases were used by law enforcement, with assessments of the threats to privacy posed by each scenario.
“Our respondents considered law enforcement access to genetic information to be as intrusive as, or more intrusive than, searches of bedrooms, text messages or emails,” the researchers reported.
“Not only when one’s DNA is held by healthcare providers, but also when it is obtained from direct-to-consumer genetic testing companies and public genealogy websites.”
They continued: “Our research also suggests that the location of genetic information [like commercial companies such as 23andMe compared to government databases like CODIS], rather than its nature or the purpose for which it is acquired, is the primary driver of these intrusiveness ratings.”
In other words, participants cared more when the database was a public consumer-oriented database, compared to a government or law enforcement database.
Because of this shared sentiment among surveyed participants, the authors argued that police access to non-governmental genetic databases as well as police use of covert methods to collect DNA in the hope of matching crime scene DNA require judicial authorization, “although not necessarily a traditional warrant.”
Much of the current debate centers on whether the constitutional protections against unreasonable searches contained in the Fourth Amendment apply to forensic genealogy—a question left open by the 2017 Supreme Court ruling in Carpenter v. United States, which appeared to widen the definition of a legal search to take account of new technology, but is “antithetical to societal norms as they apply in the genetic investigation context,” the study said.
The Golden State Killer
The issue gained new attention following the arrest and prosecution of the notorious “Golden State Killer.” Former California policeman Joseph James DeAngelo, who pled guilty last June to 13 counts of murder and 13 counts of kidnapping with robbery, eluded a statewide manhunt that began in the 1970s.
After decades of traditional police investigative methods that turned up few clues, police got their first major lead after comparing DNA collected from the crime scenes with DNA in a popular genealogy database called GEDmatch.
Investigators were able to match the DNA with relatives of DeAngelo who used the commercial database, which then allowed them to narrow the field of suspects.
Police said the database was only one element in the investigative work that finally identified the killer, but it has raised concerns about how such databases effectively can put innocent people who have unwittingly provided their DNA into the orbit of a police investigation.
Commercial genetic databases now hold the DNA of an estimated 26 million Americans—a number that is increasing daily.
“At present none of these genetic storage [databases] are clearly protected against government access by the fourth amendment, much less the warrant requirement,” the authors write.
“We think that position should be reconsidered.”
The authors, along with many privacy advocates, take issue with the fact that law enforcement agencies can write up subpoenas and warrants for DNA databases operating without Confidentiality Certificates, and the company will comply once it’s confirmed the DNA information is “relevant” to an ongoing investigation.
So, to protect Fourth Amendment rights, as well as the law regarding warrants, the authors suggest that the police must be able to make two cases, that (1) the police have a suspect identified, or that they have DNA of a suspect from a crime scene; and that (2) the suspect’s DNA, whether it be a full or partial match, will be discovered in the database in question.
The authors note the second part shouldn’t be a problem, considering the vast size of many of the databases law enforcement tap into; therefore “there is a significant probability that virtually anyone is likely to have at least one relative in the database.”
Christopher Slobogin is the Milton R. Underwood Chair in Law, Director of the Criminal Justice Program, and Affiliate Professor of Psychiatry at Vanderbilt University Law School.
James Hazel, Ph.D., J.D., is a postdoctoral fellow at the Center for Genetic Privacy and Identity in Community Settings (GetPreCiSe) at the Vanderbilt University Medical Center.
The full study can be accessed here.
This summary was prepared by TCR staff writer Andrea Cipriano.