Privacy & Policing: Does Your DNA Need a Lawyer?

With Mother’s Day approaching this weekend, one popular commercial geneology company is promoting a special sale: Send us your mother’s DNA and “help her discover what makes her so unique.”

You may also, unwittingly, be helping police do the same thing.

DNA identification has been celebrated for its ability to exonerate the wrongfully convicted, but what if it’s also used by law enforcement to place you under suspicion for a crime you didn’t commit?

In 2014, Michael Usry, Jr., a New Orleans filmmaker, was targeted by police as a suspect in a 1996 Idaho murder, interrogated, and ordered to submit a DNA sample. He spent the next month in a state of agonized suspense, expecting to be taken into custody at any moment.

Michael Usry

Michael Usry, Jr. Photo courtesy CBS News

“I had lots of days sitting at the house with the dog wondering if these guys were going to use a battering ram to bust open the door and shoot my dog after he started barking at them,” he told the New Orleans Advocate.

Usry was finally cleared. But the path that brought him to law enforcement attention started when police investigating the cold-case murder matched DNA taken from the crime scene with a DNA sample that Usry’s father had donated to a geneology project through his Mormon church in Mississippi, and which was later purchased by a commercial geneology database.

Using the DNA markers from Usry, Sr. (whom they had already cleared), investigators were able to build a family tree of his relatives—and his son popped up as a potential target. Further checks had revealed that the filmmaker had produced a short film about murder, and had travelled to Idaho at one point in his life—all of which, they believed, pointed to his involvement in the crime.

The Usry case was one of several cited by Stanford Law School researcher Joseph Zabel in a paper warning of the growing dangers to privacy represented by authorities’ use of “forensic geneology.”

“As technology progresses, and matches from relatives more and more distant are able to be made, the number of individuals who could be subjected to suspicion will grow,” Zabel wrote, striking a theme that evoked dystopian Sci-Fi novels and films.

“If investigators go back far enough, they will find that there is a killer inside all of us.”

Finding the Golden State Killer

Police use of commercial geneology websites to conduct deep DNA searches can crack cases that elude normal detective work.

That’s how police last year identified the man whom they believed was the so-called “Golden State Killer,” responsible for a string of murders in California in the 1970s, in a case that made national headlines.  Long after his trail had gone cold, Joseph DeAngelo, a former police officer, was arrested and charged with the killings, after investigators located him through a search of a commercial genetic database to which they had submitted DNA found at the scene of one of the murders.

The search enabled them to create a list of individuals who shared the same or similar genetic markers, starting in the 1800s and then methodically working their way through a family tree that contained more than 1,000 names before they settled on DeAngelo as a likely suspect.

Golden Gate Killer

Alleged ‘Golden Gate Killer’ Joseph DeAngelo. Photo by Fred Greaves/The Insider

DeAngelo had never submitted his own DNA to any website, but the DNA of his relatives effectively unmasked him.

That was the product of a revolutionary change, not only for police work, but for the science of genetics as well.

Official DNA searches have traditionally employed government databases, the record of samples taken by individuals suspected or arrested for crimes. But the surge of commercial databases offering people knowledge about their ancestry, which employ more sophisticated and precise methods of matching, represents a gold mine for police, Zabel wrote.

In 2018 alone, police used one such service to find suspects in 28 cold murder and rape cases.

Zabel wrote that there is no judicial or regulatory restraint on police preventing them from using commercial geneology services, and no warrant is currently required.

In the fine-print of most terms-of-services contracts, in fact, purchasers of the service effectively agree that the results of any geneology searches will be available to law enforcement, his paper adds.

Police have lost little time in taking advantage of this. As of April, 2019, one service called GEDmatch made 1.2 million genetic profiles available to law enforcement, Zabel wrote.

“Other DNA testing companies, such as Family Tree DNA, share their consumer data on nearly two million genetic profiles with federal law enforcement,” the paper said.

The information contained on these sites provides investigators access to genetic information with links to hundreds of millions of people who are related to the individuals who created these genetic profiles.

 …In less than three years, geneticists predict that the DNA of nearly every American of Northern European descent (almost 150 million people) will be identifiable through relatives…even if they have not submitted their own DNA.

So what’s the harm in all this—if it can help police identify vicious criminals who have long escaped their grasp?

Balancing Privacy Rights with Crime-Fighting

Zabel believes the rapid advances in forensic geneology pose the same challenges of balancing crime-fighting and Americans’ Fourth Amendment right to be protected against unreasonable searches that have been presented by earlier advances in technology—from wiretapping to cellphones and GPS locator systems.

“As is now being realized, genetic databases can paint a deep picture of a person, of their health, their heritage, and many other things personal, private and of consequence,” Zabel wrote.

When you supply a sample of your DNA to a commercial genetic database, do you have a “reasonable” right to expect that the information will not be shared with others without your knowledge?

Even more worrying, is it an intrusion of privacy when DNA information is used to identify even distant relatives who did not voluntarily provide samples?

Several Supreme Court decisions, most notably Carpenter vs United States, have begun to redefine what is considered a “reasonable expectation of privacy.” In Carpenter, the court ruled in 2017 that the search by police of a suspect’s cellphone records, without a warrant, to obtain a record of his movements and location violated Fourth Amendment protections against “unreasonable searches and seizures.”

Until then, court precedent held that if someone voluntarily provided personal information to a “Third Party,” in this case a cellphone company, he had effectively given up any expectation of privacy.

But the justices decided that cellphones are now an intrinsic part of daily life, and since they can only be operated through outside communications providers, personal information obtained through them could not be considered “voluntary.”

Some lower courts have only just begun to grapple with the issue of DNA privacy rights, but there’s a long way to go, Zabel warned.

“Technology has outgrown traditional privacy doctrine,” he wrote.

Zabel sketched out some areas where courts need to set clear limits on how forensic geneology  should be used, starting with requiring warrants when police use commercial databases for track potential suspects.

The alternative, he wrote, was to accept growing and unchecked government surveillance over every aspect of our lives.

The mere fact of being identified wrongly as a crime suspect because of a DNA match can create a “cloak of suspicion” that forever changes lives, Zabel wrote.

“It has the potential to destroy careers, ruin marriages, and forever stigmatize the suspects even if they are ultimately exonerated,” he concluded. “There is no remedy for many of these harms.”

Read the full paper here.

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