Reporting DNA issues accurately
In genealogy, we get this point: facts matter.
In genealogy, the point shouldn’t have to be repeated: facts matter.
And in genetic genealogy, the point really shouldn’t have to be repeated: facts matter.
Particularly when the “fact” being bandied about is one that might cause some of our cousins to stop dead in their tracks and perhaps even refuse to consider being DNA-tested for genetic genealogy.
The case in point this week is a report from the Electronic Freedom Foundation about a “shocking story” that — the EFF report said — “details the very real threats to privacy and civil liberties posed by law enforcement access to private genetic databases and familial DNA searching.”1
Now The Legal Genealogist wants to make two things clear up front:
(1) I am a big fan of the Electronic Freedom Foundation most of the time. It does very good work to protect privacy at a time when privacy interests are under attack from all sides. But I understand that the EFF has a bias, in favor of individual privacy, and as a result sometimes doesn’t see the forest for the trees.
(2) I am also a big fan of DNA testing and understand how valuable it is for genealogy. Because of that, I understand that I have a bias, in favor of DNA testing, and may not always see the forest for the trees either.
So I struggle, as our entire community is struggling, to balance privacy against the desire to have more people do DNA testing since it’s a simple truism: the more people who test, the more information we have that could prove to be genealogically useful.
It’s a debate that needs to take place, and is taking place, both inside and outside the genealogical community. There are new standards being developed for genetic genealogy that consider privacy rights2 and existing general standards for genealogists that emphasize the privacy rights of living individuals.3
What isn’t helpful is when something like this EFF story comes along and shades the truth to an extent that people are misled about how their DNA data can — and can’t — be disclosed to the police.
To me, it was a classic case showing why the kind of DNA testing we do for genealogy isn’t useful to the police and won’t be the first thing the police think of even in these horrible, difficult, cold-case situations. The reality is that the testing we do is so different from the testing for police purposes that it’ll be a very rare case where it’s even tried.
To the EFF, this is an astounding invasion of privacy, with a genealogical testing company simply handing over its confidential patron data to the police. According to the EFF:
Without a warrant or court order, investigators asked the lab to run the crime scene DNA against Sorenson’s private genealogical DNA database. Sorenson found 41 potential familial matches, one of which matched on 34 out of 35 alleles—a very close match that would generally indicate a close familial relationship. The cops then asked, not only for the “protected” name associated with that profile, but also for all “all information including full names, date of births, date and other information pertaining to the original donor to the Sorenson Molecular Genealogy project.” … Sorenson linked the crime scene DNA to DNA from a man born in 1952.5
If you read that to say that Sorenson handed over its protected data about the person who matched the crime scene sample just because it was asked to do so, you read that the same way I did. The same way, I suspect, the writer intended us to take it.
Because — if that’s what happened — it would be an invasion of privacy, a breach of the agreement Sorenson made with its patrons to hold their data confidential. One of the most essential protections available to Americans is the right to be free of unreasonable searches and seizures of our information and data — and to have a neutral and objective judge review any search in advance, issuing a warrant authorizing a search and seizure only when the evidence supports it.6 A warrantless hand-over of confidential data would be a grave problem indeed.
The problem, of course, is that’s not what happened.
It is true that the police submitted the crime scene sample to the Sorenson lab — now owned by Ancestry. It’s true that the lab disclosed there were matches, including one close match.
It is not true that the police simply asked Ancestry to hand over the identifying information about the close match and that Ancestry simply gave it to the police when they asked.
What really happened is that the police went to a judge, presented the information that they had, and got a court order directing Ancestry to hand over the identifying information about the match. That’s clear in the New Orleans newspaper story the EFF story is supposed to be based on.7
All that the lab simply gave the police was the fact that there was a match. No names. No addresses. No identifying information. The identifying information was not given to police until a court ordered that it be given.
Score one in this round for the Constitution: the police did exactly what they should do, and went to a judge; Ancestry did exactly what it should do, and refused to hand over the information without a court order from the judge.
When they got the information about the close match, the police didn’t run right out and arrest the person whose DNA was sampled. He didn’t fit the profile of the likely killer. Instead, they began an investigation into the closest male relatives of the match.
And they found one who was definitely a person of interest. It wasn’t just, as the EFF report says, that he had Facebook friends from the area where the killing had occurred or that he was a movie maker whose films depicted violent killings.
The police also confirmed that the person of interest — Michael Usry — had two sisters who had attended school in the area of the killing not long after the killing. They confirmed that he was of an age to have been in the area at the time. Others involved in the case had identified a “Mike” as involved and had given a physical description. Michael Usry is known as “Mike” and he generally matched the physical description.
Armed with this information, the police did not run right out and arrest Usry. Instead, they took their information to another judge and asked for another court order: one that would compel this person of interest to provide a DNA sample to compare specifically to the crime scene sample.
You see, the police knew darned good and well that you can’t make a positive one-to-one identification based on genetic genealogy testing. We, in genetic genealogy DNA tests, look for markers that make us like other people. The police, in forensic DNA tests, look for markers that make us unique — that set us apart from everyone else.
The judge gave the police the warrant they asked for, they got the DNA sample from the person of interest, they did the one-to-one comparison the law would require as proof of identity — and it cleared the filmmaker.
Score one for the Constitution — and for science — here too.
Usry was never arrested.
He was never charged.
He was never jailed for a single moment.
The science cleared him of involvement in the crime.
And every step of this case was reviewed by and passed on by a neutral and objective judge. None of his private data, or his father’s private data as the person who took the genetic genealogy test, was simply handed over to police. A judge ordered everything that was done. All of that is also clear in the news article the EFF piece is supposed to be based on.
So let me repeat, again, what I said back when this story first broke:
If the police have probable cause to believe that a crime has been committed and that you committed it, they can walk into any judge’s office in this country and get a search warrant that will let them pick you up, trot you down to the nearest medical facility, and take whatever blood or saliva they want for a DNA sample and they’ll use their own lab, not that from a genetic genealogy company, to do the tests they want.
So when that cousin asks you, once again, whether his genetic genealogy test can be used by the police, remind him, once again, that except in really extraordinary cases where the crime is very serious and the police have no clues at all, the chances that the police are going to turn to genealogy DNA databanks are pretty slim.
This Big Easy case shows that using genetic genealogy tests isn’t easy for the police. Our tests are so different from what the police need for a criminal case that, quite frankly, the police don’t particularly want our results — and when they have probable cause to think we’ve committed a crime, they don’t need them.
And what none of us need — and none of us want — is reporting that ignores what really happened.
And the facts here don’t show me that we in the genetic community have cause for alarm at all.
- Jennifer Lynch, “How Private DNA Data Led Idaho Cops on a Wild Goose Chase and Linked an Innocent Man to a 20-year-old Murder Case,” Electronic Freedom Foundation, Deeplinks blog, posted 1 May 2015 (https://www.eff.org/deeplinks/ : accessed 2 May 2015). ↩
- See Genetic Genealogy Standards, PDF (http://www.geneticgenealogystandards.com/ : accessed 2 May 2015). ↩
- National Genealogical Society, Standards for Sharing Information with Others (http://www.ngsgenealogy.org/cs/standards_for_sharing_information : accessed 2 May 2015). ↩
- Judy G. Russell, “Big Easy DNA: not so easy,” The Legal Genealogist, posted 15 Mar 2015 (http://www.legalgenealogist.com/blog : accessed date). ↩
- Lynch, “How Private DNA Data Led Idaho Cops on a Wild Goose Chase and Linked an Innocent Man to a 20-year-old Murder Case.” ↩
- United States Constitution, Fourth Amendent. ↩
- See Jim Mustian, “New Orleans filmmaker cleared in cold-case murder; false positive highlights limitations of familial DNA searching,” New Orleans Advocate, posted 9 Mar 2015 (http://www.theneworleansadvocate.com/ : accessed 14 Mar 2015). ↩