Are we surrendering too much?
Genealogy has always been a sharing collegial avocation.
All of us, The Legal Genealogist included, learned as baby genealogists that if we wanted to find those elusive ancestors hiding amidst the branches of our family trees, we needed to work together with our relatives — close kin and cousins.
Then along came the DNA revolution and our definition of “cousins we might work with” became a lot broader. Not just first and second cousins, but third-fourth-fifth and even more distant cousins identified through evidence hidden deep in our genetic code. And we learned — and are still learning — how to work with them to find our family.
But now… now we find that to get the very most from this new tool… we may end up working together with a group we had no idea we’d end up sharing with: the police and other governmental authorities.
And with the aim of finding our family for an altogether different purpose than bringing a family together.
Perhaps with the aim of allowing that evidence hidden deep in our genetic code to identify a relative somewhere out there in our family tree who has been lost to the family.
Few if any in the genealogical community would object to the use of our DNA to identify a John or Jane Doe lying unclaimed in a morgue somewhere for lack of identification.
Perhaps with the aim of allowing that evidence to identify a relative who was lost to the family through adoption or abandonment, and now can be reunited at least with his or her identity and medical history even if the biological family doesn’t want an ongoing relationship.
Few if any in the genealogical community would object to the use of our DNA to allow adoptee to know where they came from, what their roots are.
And now… now… with the aim of allowing that evidence to identify a relative who is being sought by police or other government authorities for doing something that’s defined by those authorities as worthy of investigation.
And therein lies the rub.
We can all sit back and rejoice in the use of DNA evidence to take killers off the streets. The arrest of a suspect in California’s long-ago Golden State Killer case after DNA from at least one of the crime scenes was entered into a genealogical database may — if the evidence holds up and a jury is convinced — give closure to many families who suffered enormously during that violent crime spree years ago.
Few if any in the genealogical community would disagree with the characterization of murder as the kind of wrong that’s clearly worthy of investigation. It’s what the law calls malum in se, “a wrong in itself; an act or case involving illegality from the very nature of the transaction, upon principles of natural, moral, and public law.”1
And, it appears from public comments within the genealogical community, many are willing accept unbridled, unsupervised, unregulated police access to their DNA results in order to bring killers like the Golden State Killer to justice.
“The end justifies the means” is the rallying cry and that’s enough for many to set aside the notions underlying the Fourth Amendment and the idea that a detached and neutral magistrate’s considered judgment on whether the evidence justifies issuing a search warrant should stand between the people and the power of government.
But there’s another category of wrong. It’s what the law calls malum prohibitum, “a wrong prohibited; a thing which is wrong because prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden…”2
Two weeks ago, the remains of a fetus were found in a Georgia sewage system. The age of the fetus puts it right on the edge of Georgia’s abortion law — if the fetus was 20 weeks and one day, rather than 19 weeks and six days, and if it was aborted and not the result of a spontaneous miscarriage, then and only then would the fetal death be a crime. And the coroner and Georgia Bureau of Investigation are conducting DNA testing to identify the mother.3
Since DNA testing of the remains could take eight months to a year, according to Georgia authorities, the explanation that the mother needs to be identified to make sure she’s healthy and safe or to allow her to inter the fetus4 rings hollow. After all, nobody’s suggesting tracking down the father to allow him to inter the fetus. Clearly, this is being treated as a crime — a wrong worthy of investigation.
My guess is that only some of those who thought “the end justifies the means” would welcome the use of their DNA results to track down the mother or the parents in the Georgia case.
But the problem with accepting unbridled, unsupervised, unregulated government access to DNA results is that there’s no principled way to distinguish between Wrong A and Wrong B. Buying the notion that “the end justifies the means” opens the door to the use of our DNA results any time something is defined by government somewhere at some time as a wrong worthy of investigation.
We can’t accept government use of a genealogical database to investigate one kind of criminal case without any kind of judicial oversight without giving up the argument that it shouldn’t use it without judicial oversight in another kind of criminal case.
And we may not always agree with the definition of what’s criminal.
I am deeply concerned that the broader genealogical community isn’t talking enough about the risk that “the end justifies the means” is a recipe for abuse. That governments and their investigative arms aren’t always looking for Golden State Killers.
And I am reminded in considering this issue of the words of Lutheran Pastor Martin Niemöller about the risks of silence in an earlier age:
First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.5
This is a conversation our community had better have… or find that the price of sharing is the surrender of our own privacy and, through the evidence in our genes, of the rights of family members targeted less for what they’ve done than for what they are.
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 746, “malum in se.” ↩
- Ibid.,“malum prohibitum.” ↩
- See e.g. Nefeteria Brewster, “Fetus identification could take up to a year, says coroner,” Augusta (Ga.) Chronicle, posted 9 May 2018 (http://www.augustachronicle.com/ : accessed 27 May 2018). ↩
- See Russell Brandom, “Police are using DNA testing to track down a fetus’s mother,” The Verge, posted 10 May 2018 (https://www.theverge.com/ : accessed 27 May 2018). ↩
- “Martin Niemöller: ‘First they came for the Socialists…’,” Holocaust Encyclopedia, United States Holocaust Memorial Museum (https://www.ushmm.org/ : accessed 27 May 2018). ↩