Two US states have enacted bills to protect people’s privacy when the authorities use commercial direct-to-consumer DNA databases and forensic genealogy to solve old crimes.
What happens when they use DNA databases?
Police use DNA from an old unsolved crime scene and compare it to genetic online profiles in commercial DNA databases. They will try to establish family trees, filter people based on gender, race, age, etc., and end up with a pool of possibilities. Then, they add surveillance, maybe get DNA from a discarded item such as a napkin or a cigarette, and compare that to the DNA from the original crime scene. This is, of course, a simplified description of the entire process, but it gives you an idea how it works.
Some say that these above-mentioned bills this will hinder cold case investigations that are based on forensic genealogy. Let’s first look at the states in question: Montana and Maryland.
Effective Oct 1, 2021 authorities
- must obtain a court order
- the use of the method is limited to serious crimes only such as murder and sexual assault
- must have exhausted the government’s own Combined DNA Index System database (CODIS)
- are limited to databases from websites that have strict policies regarding user consent
- must get a consumer’s written consent before their DNA can be used to find matches unless there is a court order
- must limit their research to identification only. They are prohibited from researching psychological characteristics, health issues, or genetic predispositions related to health. Forensic Genealogy opens up thousands of your genetic markers. CODIS is limited to 24 markers. How exactly we can safeguard against this extended use, is not clear.
- must upon conclusion of the investigation delete all genealogical records created from their databases however, I wonder if there is a time span and a sanction for non-compliance.
- must ensure that by 2024 all genealogists working on these type of investigations must be professionally certified. This credential does not exits right now. What exactly this certification entails and from which professional organization and oversight committee, is not clear.
This new law passed the House and Senate unanimously. It was put together with legal experts, public defense attorneys, prosecutors, and police joining the discussions.
Prof. Natalie Ram from the University of Maryland Francis King Carey School of Law supports the new law. Her concern centers around the suspect’s gnome that contains all kinds of health information. To not obtain a judge’s approval, she feels, is akin to an unreasonable search that is banned by the Fourth Amendment.
Effective immediately, authorities must get a search warrant before they can use commercial DNA databases except in cases where a consumer waived their right to privacy. This waive is not specified as a written consent.
Four big databases
GEDmatch and FamilyTreeDNA give their consumers a choice to participate in database searches by police. However, exactly how they explain these searches to their customers and define the search limitations, how a consumer can appeal/protest/object, is unclear from the articles online. The articles that I mention in this post do not describe whether the ultimate form of consent must be in writing or can be a simple change in people’s account settings. According to the New York Times, the opt-in setting is on by default. So, if you are not aware or not used to checking your account settings do you automatically give consent?
Ancestry and 23andMe have only opened up their databases to the authorities when they were presented with court orders. From the NYT article, I understand that they are not in a hurry to change their policy, if at all.
In favour of research
We all want cold cases solved. Every time I see such news, I rejoice. However, I also have my reservations as I wrote about here and here. The NYT mentions a case where a woman thought that she was helping to identify a dead person. In reality, authorities used her DNA against her own son. He was arrested and charged for murder. In other words, requiring consent must be in writing or by court order, the consumer must be presented with a clearly spelled out goal and limitations of the search, and any new use of a person’s DNA should require a new court order. The discarding of the DNA samples should be regulated as well.
Some people bring up that DNA samples from very old cases are fragile. That is correct. The passing of time makes the samples less stable as they are degrading. Each DNA test also reduces the original sample.
I wonder if we can clone the original sample, use forensic genealogy with the cloned sample, and only once it indicates a potential match, confirm that match with the original DNA sample.
The procedures in Maryland to create a bill by the collaboration of various interest parties, gives hope for a well-balanced future for the use of forensic genealogy. What the rest of the country will do regarding forensic genealogy remains to be seen.
I think it is time to discuss on the federal level all evidence gathering procedures, the DNA match finding research methods, get those methods under peer review, discuss people’s qualifications and certifications, the credentials of the (private and state) labs involved, and form an oversight committee made up of interdisciplinary professionals.
As soon as I have more information, I will update this post.