And raise questions that need answers
The disclosure earlier this year that a DNA database used almost exclusively by genealogists to help answer family history questions had been used by law enforcement to solve a cold murder case has sparked a continuing — and growing — ethical debate.
When, if ever, is it appropriate (legally and ethically) for the police to use DNA samples submitted for genealogical research as part of their investigations?
Despite the enthusiasm over what everyone hopes will be the solution to the Golden State Killer case — with the arrest of a suspect (but remember: no conviction as yet) in a horrific series of murders and rapes in California years ago1 — this is not an easy question.
What has become clear as time has passed is this essential dichotomy:
…in California, familial searches can only be performed using the database of convicted individuals in cases of serious crimes with public safety implications where all other investigatory methods have been exhausted, and where single-source high-quality DNA is available for analysis. Further, California policy separates the genealogical investigative team from local detectives, so as to minimize the impact of incidental findings (such as unexpected non-paternity).
No such regulations currently govern law enforcement searches of public genealogical databases…2
Familial searches, by definition, are the kinds of searches genealogists do every day in genetic genealogy databases: searches for family members who might have information we can use in building our family history, often people previously unknown to us. In the law enforcement context, a familial search is a search of a database not so much to find a suspect but to find members of the suspect’s family whose information might lead to the suspect.3
Clearly, the genealogical community is split over this issue. Some have no concerns about the use of their data to identify suspects in serious criminal cases. Others — The Legal Genealogist included — have expressed their discomfort with unregulated police access to recreational databases.4
And now the forensic community and bioethicists are weighing in, along with genealogists, lawyers and others… and the ethical questions continue to mount.
Here are some articles those who want to know more may wish to read, in reverse chronological order:
• Max Mitchell, “As Genealogy Databases Aid in Crime-Solving, Are Courts Ready to Tackle DNA Privacy?,” The Legal Intelligencer, posted 23 July 2018 (https://www.law.com/thelegalintelligencer/ : accessed 29 July 2018).
• Chris Phillips, “The Golden State Killer investigation and the nascent field of forensic genealogy,” FSI Genetics 36 (Sep 2018): 203-204, posted 17 July 2018 (https://www.fsigenetics.com/ : accessed 29 July 2018).
• Denise Syndercombe Court, “Forensic genealogy: Some serious concerns,” FSI Genetics 36 (Sep 2018): 186-188, posted 15 July 2018 (https://www.fsigenetics.com/ : accessed 29 July 2018).
• Nathan Scudder et al., “Crowdsourced and crowdfunded: the future of forensic DNA?,” Australian Journal of Forensic Sciences, posted 5 July 2018 (https://www.tandfonline.com/doi/ : accessed 29 July 2018).
• Dina Fine Maron, “Cold Cases Heat Up as Law Enforcement Uses Genetics to Solve Past Crimes,” Scientific American, posted 2 July 2018 (https://www.scientificamerican.com/ : accessed 29 July 2018).
• Connecticut Editorial Board, “Golden State Killer Case Raises Legal, Ethical DNA Issues,” Connecticut Law Tribune, posted 8 June 2018 (https://www.law.com/ctlawtribune/ : accessed 29 July 2018).
• Paul Woodbury, “The Secrets in Your Spit: Using Genetic Genealogy to Solve Cold Cases,” Legacy Tree Genealogists, posted 4 June 2018 (https://www.legacytree.com/blog/ : accessed 29 July 2018).
• Carolyn Crist, “Experts outline ethics issues with use of genealogy DNA to solve crimes,” Reuters Health, posted 1 June 2018 (https://www.reuters.com/ : accessed 29 July 2018).
• “After The Golden State Killer, The Ethics Of Genetic Testing,” Science Friday, posted 4 May 2018 (https://www.sciencefriday.com/ : accessed 29 July 2018).
• Editorial Board, “The ethics of catching criminals using their family’s DNA,” Nature.com, posted 2 May 2018 (https://www.nature.com/ : accessed 29 July 2018).
• Adhiti Bandlamudi, “Tactics Used To Find Golden State Killer Raise Privacy And Legal Questions,” NPR All Things Considered, posted 27 April 2018 (https://www.npr.org/ : accessed 29 July 2018).
Remember this: this kind of search is considered so intrusive and so potentially powerful under California’s laws that that state’s own database of convicted criminals could not have been conducted without safeguards.
And no safeguards — none at all except those the testing companies impose themselves — exist to govern the police when they search our databases of our samples submitted not because anyone was convicted of a crime but solely for genealogical research.
That’s where we are, legally, on this issue.
It’s up to us to help develop the rules to determine if this is where we want to end up, ethically, on this issue.
- See generally Dan Barry, Tim Arango and Richard A. Oppel Jr., “With Taunts and Guile, the Golden State Killer Left a Trail of Horror,” New York Times, 28 Apr 2018 (https://www.nytimes.com/ : accessed 28 Apr 2018). ↩
- Stephanie Fullerton and Rori Rohlfs, “Should Police Detectives Have Total Access to Public Genetic Databases?,” Leapsmag: Thinking into the Future, posted 23 July 2018 (https://leapsmag.com/ : accessed 29 July 2018) (emphasis added). ↩
- See “What is Familial Searching?,” Forensic DNA Education for Law Enforcement Decision Makers, National Forensic Science Technology Center, Florida International University (https://projects.nfstc.org/ : accessed 29 July 2018). ↩
- See e.g. Judy G. Russell, “The bull in the DNA china shop,” The Legal Genealogist, posted 29 April 2018 (https://www.legalgenealogist.com/blog : accessed 29 July 2018). ↩