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Law Enforcement Accesses Commercial DNA Databases Without Warrant

by Eike Blohm, MD

Joseph James DeAngelo, known as the Golden State Killer who committed heinous crimes in California during the 1970s and 1980s, has been caught. Police were able to match crime scene DNA to DeAngelo’s distant relative in a genealogical genetic database.

As citizens of a country of immigrants, Americans are often quite interested to learn about their ancestry. Over the last decade, this demand has been met by genealogical genetic analysis offered by companies such as ancestry.com, 23andMe, and GEDmatch. Two types of sequencing are commonly performed:

(1) Nuclear DNA is the genetic material in the nucleus of cells and is unique to an individual. Analysis of single-nucleotide polymorphisms (“SNPs”) provides a distinct pattern that is only shared between identical twins, but not others. Close relatives will partially match this SNP pattern.

(2) Mitochondrial DNA (“mtDNA”) is encapsulated in a cellular organelle, known from high school biology as “the powerhouse of the cell.” Evolutionarily, mitochondria are endosymbionts, ancient bacteria that took up permanent residence in the cells of higher life forms. They still carry their own DNA, and because mitochondria are in eggs but not in sperm, the mtDNA is exclusively passed on by a mother to her offspring. This allows for identification of maternal relatives and tracing of the distant maternal ancestral line as well as its geographic origins.

After a customer learns about their genetic origin, family tree, and propensity for certain ailments such as gluten intolerance, their genetic information remains in the databases of these companies. There it can be accessed by law enforcement agencies and other third parties.

Michael Usry knew none of this when the FBI knocked on his door in December 2014. He had never used a genealogical service. His father, however, had provided his DNA sample to ancestry.com, and police found a close match when they ran DNA from the crime scene of the 1996 murder of 18-year-old Angie Dodge. As Usry’s father was considered too old to have committed the crime, a judge granted a warrant for Michael Usry’s DNA.

After testing Usry’s DNA, he was cleared as a suspect, but his genetic information now resides in the government’s database without his consent.

This is not the only pathway for law enforcement to obtain genetic information without a warrant. The San Francisco Police Department utilized the genetic information from rape kits (which inadvertently sequence the victim and the assailant) to prosecute sexual assault victims for unrelated non-violent crimes. In another instance, New Jersey state police used information from a baby’s mandatory genetic newborn screening in the hospital to convict the baby’s father of a sexual assault that occurred a quarter century ago.

There is a paucity of regulation concerning the warrantless access of genetic information. Some companies, like ancestry.com, have recently made their databases unavailable to law enforcement. Other companies (GEDmatch and FamilyTreeDNA) have pre-checked boxes in their sign-up process, and clients must opt out if they wish to keep their genetic information private. In 2019, the U.S. Department of Justice created guidelines requiring that non-suspects give informed consent before their genetic information is accessed. However, those guidelines apply only to federal agencies. State and local police continue unrestricted.

And no, if a person’s genetic data leads to the arrest of a perpetrator, the DNA’s owner cannot claim the reward money offered for information that results in a conviction. This is what Brandy Jennings of Vancouver, Washington, found out when her genetic information was used without her knowledge or consent to solve a murder from 1979 in Cedar Rapids, Iowa.

Source: NY Post

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