New guidelines emphasize informed consent, notice

In an effort to balance the desire to solve crimes with the need to protect individual privacy, the United States Department of Justice (DOJ) this week issued interim guidelines to govern — and in some respects rein in — the growing use of genealogical DNA databases in criminal investigations.

Designated the “Interim Policy on Forensic Genetic Genealogical DNA Analysis and Searching,” the policy goes into effect November 1 and governs all DOJ investigations and all state and local investigations that use DOJ funds.1 While other cases won’t be under the rules, the DOJ policy is expected to set the standard for other federal agencies and, eventually, for all criminal cases.

DOJ on DNA

In a statement by Deputy Attorney General Jeffrey A. Rosen, DOJ explained that the interim policy “is designed to balance the Department’s relentless commitment to solving violent crimes and protecting public safety against equally important public interests—such as preserving the privacy and civil liberties of all citizens.”2

Key elements of the interim policy are these:

• No surreptitious use of DNA databases is allowed: no fake names to sneak a crime scene sample into a database. Investigators have to identify themselves as law enforcement to the testing companies, and they can only upload crime scene samples to services “that provide explicit notice to their service users and the public that law enforcement may use their service sites (defined as “the online web page and content of a GG service”) to investigate crimes or to identify unidentified human remains.”3 That means, today, only Family Tree DNA and GEDmatch can be used. All other genetic genealogy companies — 23andMe, AncestryDNA, MyHeritage DNA and Living DNA — do not allow law enforcement use of their databases.

• Use of non-police DNA databases — in other words, the genealogical DNA databases — should only be allowed in cases of homicide, sex crimes, or attempts to identify the remains of a suspected homicide victim where all other reasonable efforts to solve the cases have failed. Case-by-case exceptions can be made “when the circumstances surrounding the criminal act(s) present a substantial and ongoing threat to public safety or national security.”4

• If the results suggest that getting a sample from another person more closely related than those in the database would help, the police “must seek informed consent” from that other person or, if trying to get consent would compromise the investigation, they may covertly collect a sample “in a lawful manner” but have to get a search warrant before they run that sample through any vendor laboratory for analysis.5

• Nobody should be arrested based on a match in a genetic genealogy database. “A suspect shall not be arrested based solely on a genetic association generated by a (genetic genealogy) service.” Only if the suspect’s DNA can be matched against the government’s own CODIS sample can an arrest be made. “This comparison is necessary to confirm that the forensic sample could have originated from the suspect.”6 “Investigative agencies shall not arrest a suspect based solely on a genetic association generated by a (genetic genealogy) service. Traditional genealogy research and other investigative work is required to determine the true nature of any genetic association.”7

• If a suspect is arrested while analysis of any other sample is underway, the testing is supposed to stop. All samples are to be returned to the originating agency and not kept by the testing company. All data about third parties is to be destroyed whether the case is solved or not: by court order if a prosecution results and under government data retention schedules if it’s not solved.8

The interim policy statement explained that DOJ must use what it calls forensic genetic genealogical DNA analysis and searching (“FGGS”) “in a manner consistent with the requirements and protections of the Constitution and other legal authorities. Moreover, the Department must handle information and data derived from FGGS in accordance with applicable laws, regulations, policies, and procedures. When using new technologies like FGGS, the Department is committed to developing practices that protect reasonable interests in privacy, while allowing law enforcement to make effective use of FGGS to help identify violent criminals, exonerate innocent suspects, and ensure the fair and impartial administration of justice to all Americans.”9

Again, it’s important to note that there are limits to these guidelines: (a) the policy only applies to the Department of Justice and to local and state investigations that use federal funds for their use of FGGS; and (b) it’s an interim policy guidance document, not a hard-and-fast rule that’s going to bind the police at any level.

And there are a few things that could be a little more candid. The statement, for example, that “It is important to note that personal genetic information is not transferred, retrieved, downloaded, or retained by GG service users — including law enforcement — during the automated search and comparison process”10 doesn’t adequately reflect the reality that if police sample A matches person B at a particular segment, that fact is itself personal genetic information that can be readily “transferred, retrieved, downloaded, or retained” by police.

The guidelines don’t address the qualifications of genealogists doing the analysis of the DNA results; there’s no recognition that genealogy has accepted standards and best practices or that all credentialed genealogists and most professional genealogists commit to abide by ethics codes that require informed consent from all DNA testers — which would require an opt-in system and not an opt-out system such as used by Family Tree DNA.

Finally, while the guidelines do provide that data collected during the searches of genealogy databases “shall be treated as confidential government information consistent with any applicable laws, regulations, policies, and procedures,”11 they don’t explicitly provide for protecting the identities of unwitting DNA informants in search warrant applications, court filings and the like. Even street thugs who provide information to the police get tagged as “Confidential Informant 1” in typical cases, and the law stretches as far as it can to protect them from disclosure; publicizing names, addresses and more of people who simply tested for genealogy just because a relative committed a crime is a major breach of their privacy.

All in all, it’s a start in the right direction, emphasizing informed consent, notice, and the need to protect the privacy of individual users.


Cite/link to this post: Judy G. Russell, “Justice Department issues DNA guidelines,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 29 Sep 2019).

SOURCES

  1. United States Department of Justice Interim Policy–Forensic Genetic Genealogical DNA Analysis and Searching,” PDF file, Office of Legal Policy, U.S. Department of Justice (https://www.justice.gov/olp/ : accessed 29 Sep 2019).
  2. Department of Justice Announces Interim Policy on Emerging Method to Generate Leads for Unsolved Violent Crimes,” Justice News, posted 24 Sep 2019, Office of Public Affairs, U.S. Department of Justice, posted 24 Sep 2019 (https://www.justice.gov/opa/ : accessed 29 Sep 2019).
  3. United States Department of Justice Interim Policy–Forensic Genetic Genealogical DNA Analysis and Searching,” Section VII, Investigative Caution, PDF at 6.
  4. Ibid., Section V, Case Criteria, PDF at 4-5.
  5. Ibid., VII, Investigative Caution, PDF at 6.
  6. Ibid., Section IV, Limitations, PDF at 4.
  7. Ibid., Section VII, Investigative Caution, PDF at 6.
  8. Ibid., Section VIII, Sample and Data Control and Disposition, PDF at 8.
  9. Ibid., Section I, Purpose and Scope, PDF at 1.
  10. Ibid., Section IIIb, Background–Forensic Genetic Genealogical DNA Analysis and Searching, PDF at 3.
  11. Ibid., Section VIII, Sample and Data Control and Disposition, PDF at 7.
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