Are There Ways to Challenge DNA Tests in a Criminal Case?
As more people in the United States use DNA tests to learn about their ethnic origins and ancestry, law enforcement agencies seek to take advantage of this potential trove of clues to solve difficult or unsolved cases. For decades, detectives have used government databases to match the DNA of suspected criminals – a technique called forensic genetic genealogy. However, government DNA databases are at a disadvantage compared to private companies, which provide full chromosomal profiles. Approximately 26 million Americans have their genetic code stored in direct-to-consumer DNA service databases – most of which can match relatives who share even 1% of DNA.
Law enforcement could not previously access this highly personal data until 2018, when California investigators cracked the Golden State Killer case by matching DNA on the consumer genealogy service, GEDmatch. As law enforcement pursues using this resource of consumer DNA databases to pursue criminal cases, concerns have arisen on whether these tactics violate Americans’ rights to privacy.
What are Concerns Around Law Enforcement Using Consumer DNA Tests?
From its underlying disregard of privacy to the consequences of extended police power, there are increasing fears that detectives’ rush to use consumer DNA databases will have significant implications.
In July 2018, Orlando Detective Michael Fields nearly had all the evidence required to arrest a suspected serial rapist when his access to consumer DNA service, GEDmatch, was denied. The rejection was a result of a recently implemented policy that required consumers to opt-in before permitting access to law enforcement. From there, Fields secured a search warrant from a Florida judge and gained access to the genetic data or more than 1 million individuals – most of whom did not consent to a police search. The search warrant was kept secret for months before Fields shared this tactic at a conference, encouraging other law enforcement agencies to organize similar DNA matching routines when solving crimes.
Consequently, a growing number of concerns have been raised around law enforcement using consumer DNA tests involving the lack of oversight, the intense secrecy, and the potential for violating American’s privacy rights.
Lack of Oversight
An investigative report by the Los Angeles Times found there is no uniform process dictating when law enforcement can turn to consumer DNA databases when solving cases. Some departments use this resource after all others have been exhausted, while others are quick to practice it. Many police agencies, including the Orlando Police Department, have no DNA testing policies at all.
To regulate police use of commercial DNA services, the U.S. Department of Justice released a policy in September 2019 that restricts consumer DNA searches to violent crimes and indicated they could only be used after all other resources have been exhausted.
Lack of Transparency
Law enforcement reveals very little information when partnering with private consumer DNA companies. According to a former defense attorney, Erin Murphy,
“They’re afraid that if the public finds out what we’re doing, we won’t be allowed to do it anymore. So the solution is, ‘Don’t tell the public.’”
Now a law professor at New York University, Murphy has long opposed police use of private DNA databases, declaring it open season on consumer DNA profiles.
Privacy Violation Concerns
Due to law enforcement’s general unwillingness to share details with the public when accessing private DNA databases, it can be difficult to find:
- To what extent a person’s privacy was invaded
- Which consumer genealogy companies provided the DNA
- How many false leads were produced of the genetic profiles searched
While many consumer DNA companies include privacy clauses to prevent law enforcement from searching their database, investigators can often override these clauses with a court-ordered search warrant.
Can the Use of Private DNA Tests Be Challenged in a Criminal Case?
The biggest challenge to the use of private DNA profiles in a criminal case is that American citizens’ constitutional rights to privacy can get violated. Opponents of DNA sleuthing say that mass searches are an attack on the genetic privacy of those who submitted their DNA purely to learn about their ancestral roots – as well as their relatives who didn’t consent to the release of their DNA.
While law enforcement must acquire a court-ordered search warrant before accessing consumer DNA profiles, the continuous success of privacy breaches extending to millions demonstrates how easily privacy rights can be invaded. DNA expert for the American Civil Liberties Union, Vera Eidelman, explained,
“There’s always a danger that things will be used beyond their initial targets, beyond their initial purpose.”
To demonstrate the slippery slope of the mass searching of private DNA profiles, Eidelman pointed out how DNA searches were once restricted to matching convicted felons. Now, searches range from suspected or convicted criminals’ parents to siblings, grandparents, and even cousins loosely related to people who merely want to discover their ancestry.
What Steps Can Be Taken to Protect Genetic Privacy?
Those who have already submitted their DNA to a consumer genealogy company have few options to remove their genetic profile from a private database. They can request that those companies remove their data, but it’s not guaranteed that all of the data will be wiped out.
Unfortunately, those who haven’t submitted their DNA to a private genealogical service could also be affected. As both the availability and popularity of consumer genetic tests have grown, so have genetic databases. A portion of your DNA can also be analyzed through families if a relative submitted their DNA for genetic testing.
The most effective way to resolve privacy concerns in the U.S. is through policy change. State and federal legislation that would ban law enforcement from searching private DNA databases would be the most robust defense of Americans’ privacy rights.
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