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Limits for Use of Genealogy Databases in Criminal Investigations Must be Legislated, Experts Say

NEW YORK (GenomeWeb) – The April arrest of Joseph James DeAngelo as the Golden State Killer in California surprised serial killer experts who assumed that the cold case from the 1970s and 80s would never be solved. But the method by which the police found DeAngelo surprised people for a different reason and raised questions about personal privacy related to DNA that people donated to genealogy databases.

Investigators compared DNA recovered from victims and crime scenes to DNA profiles in a free genealogy database called GEDmatch. They found a familial match to the DNA at the crime scenes and eventually matched it to DeAngelo. But this is entirely different from when police analyze the DNA of individuals arrested or convicted of certain crimes, which has been collected in the National DNA Index System (NDIS) for forensic purposes since 1989, according to a column published in Science today by the University of Baltimore School of Law's Natalie Ram and Christi Guerrini and Amy McGuire of the Center for Medical Ethics and Health Policy at the Baylor College of Medicine.

Because GEDmatch is a non-forensic database, its use for law enforcement purposes has ethics experts wondering if such searches are common, and if this is just the first time the public has heard of it because of the high-profile nature of the case, the authors wrote. Indeed, they noted, experts are asking whether this case could set a precedent and what consumers can do to protect their privacy.

"Investigators are already rushing to make similar searches of GEDmatch in other cases, making ethical and legal inquiry into such use urgent," according to Ram, Guerrini, and McGuire. "The case of the Golden State Killer is not the first instance of investigators turning to non-forensic DNA databases to generate leads. This was not even the first time investigators used genealogical DNA matches to develop and pursue a suspect in the Golden State Killer case itself. A year before investigators zeroed in on DeAngelo, they subpoenaed another genetic testing company for the name and payment information of one of its users and obtained a warrant for the man's DNA. He was not a match."

The authors argued that despite the privacy issues, there could be some advantages to allowing police to use genealogical databases in this manner. It would likely lead to more solved crimes, they noted. It might also help to remedy the racial and ethnic disparities that are currently a problem in traditional forensic searches — official forensic databases are typically limited to individuals arrested or convicted of certain crimes, and racial and ethnic disparities in the criminal justice system are therefore echoed in these forensic databases, but genealogical databases are biased toward different demographics.

"The 23andMe database, for instance, consists disproportionately of individuals of European descent. Including genealogical databases in forensic searches might thus begin to redress, in at least one respect, disparities in the criminal justice system," the authors wrote.

They further noted that existing laws most likely wouldn't stand in the way of such police searches. The Fourth Amendment to the Constitution prohibiting unreasonable searches and seizures wouldn't apply as the DNA is freely given to the genealogy companies. Laws like the Genetic Information Nondiscrimination Act (GINA) protects genetic data, but not against law enforcement searches. And most companies and websites offering DNA testing, interpretation, or matching services directly to individuals likely are not covered by the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.

Therefore, Ram, Guerrini, and McGuire argued, it is up to legislators to enact standards that would set limits and protections for the use of genetic data stored in non-forensic databases to "ensure that the government cannot subject ordinary individuals to suspicionless genetic searches, while allowing investigators to access genetic data where there is reason to believe a particular individual may be tied to a particular crime."

At a minimum, they said, lawmakers should clearly delineate under which circumstances such searches by the police are acceptable. In fact, they noted, several states — including California, Colorado, and Texas — have identified prerequisites that must be met before the police can use familial searches in the state's own forensic database, including that the crime to be investigated is serious and that traditional investigative techniques have been exhausted without success. They argued that similar constraints could be placed on law enforcement searches of non-forensic databases.

"The challenge of this approach is that limitations on the scope of use can erode quickly," Ram, Guerrini, and McGuire concluded. "The erosion of limits on crime-solving technology may well be inevitable, and it threatens our collective civil liberties and opens the door to socially and politically unacceptable genetic surveillance. Whatever legislative solution is adopted, it must at least take into account public perspectives to clearly delineate acceptable uses and balance the social benefit of solving cases with individuals' interests in avoiding unwarranted government scrutiny."