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Federal Rules Limit Searches of Private DNA Databases

by Jayson Hawkins

A new policy instituted by the U.S. Department of Justice (“DOJ”), effective November 1, 2019, is the first federal rule governing the use of family-tree DNA databases by law enforcement.

Services that allow individuals to trace their ancestry through DNA technology have grown increasingly popular in recent years. It has been estimated that at least three out of five white Americans can be identified using such searches, either from submitting their own genetic material or extrapolated from that of their relatives. The services, intended for private use, made headlines in 2018 when police used them to hunt down Joseph DeAngelo, the accused Golden State Killer suspected in numerous decades-old murders and rapes. His identification was made by entering crime scene evidence into a public ancestry database that led to distant relatives. Investigators then factored in other information known about the killer and traditional genealogy to pinpoint the suspect.

Similar methods have been employed to solve around 60 cold cases nationwide so far. But while the approach has opened new doors to law enforcement, it has also spurred concerns over the potential for abuse. Individuals can be implicated in investigations without ever having given their DNA to a website. Those who have submitted genetic samples may not have agreed to allow that information to be handed over to police. The wealth of intimate data that DNA reveals has also sparked concerns about how that information can be used.

A DOJ press release on the interim policy emphasized its intention to “balance the department’s relentless commitment to solving violent crime and protecting public safety against equally important public interests” like civil rights and privacy. The policy thus requires that “forensic genetic genealogical DNA analysis and searching” (“FGGS”) be utilized for two purposes only: “when a case involves an unsolved violent crime ... or when a case involves what is reasonably believed by investigators to be the unidentified remains of a suspected homicide victim.”

Civil rights advocates, however, may be concerned by a footnote that places no limits on criminal investigations using FGGS as a genealogy service authorizes law enforcement to do so. In other words, once someone hands over their DNA to such a service, it is almost entirely at the company’s discretion as to how it may be used.

The DOJ interim policy applies not only to federal law enforcement but to any locality that accepts federal funding.

Many in the field believe it will become the basis for a nationwide standard, though some have criticized it for not going far enough. At a minimum, it requires police to first exhaust their usual methods before resorting to FGGS, forbids them from putting up fake profiles on ancestry sites to attract the relatives of a suspect, limits their ability to collect genetic material, and prohibits DNA profiling of psychological characteristics or disease risks.

It is believed hundreds of cases employing FGGS are currently under way.

GEDmatch, the free service that most successful investigations have utilized up to this point, threw up a major barrier in May 2019. Users must manually “opt in” if they permit law enforcement to access their info, abcnews.go.com reports, rather than be opted in automatically.

The resulting 90 percent drop in profiles available to police should serve as a reminder that, despite the effectiveness of DNA technology in solving crimes, the American public in general maintains a healthy suspicion of Big Brother looking over their shoulder and through their genes. 

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Sources: sciencemag.org, justice.gov, ABC News

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