In Late October 2019, Detective Michael Fields of the Orlando, Florida Police Department obtained the apparently first-ever warrant to be able to search a commercial database containing sequenced DNA and genealogical genetic ancestry information in an effort to track and identify a serial rapist who assaulted a number of women decades ago. After Judge Patricia Strowbridge granted the detective his warrant, which allowed him to override the privacy settings of 1.2 million users on GEDmatch and search through all their information, there became an immediate interest in this case as it has the potential to set a precedent for similar requests in the future. Law enforcement agencies, as well as members of the public and communities who have been impacted by violent crimes, are excited at the prospect of being able to search through genetic genealogy databases (this is how the Golden State serial killer was identified in 2018), while many data privacy advocates are expressing wariness and urging caution about the ethical waters we are beginning to wade into. See, for example, this recent PBS story highlighting the ethical questions that will begin to appear more frequently, including how the use of genetic genealogy for law enforcement purposes can disrupt someone’s life whether the lead itself is true or false: “A father took an at-home DNA test. His son was then falsely accused of murder.”
While GEDmatch is small fish – it contains voluntarily submitted information from about 1.2 million users – all eyes are on the future ability of law enforcement to obtain warrants to search through the larger commercial databases for solving crimes both old and new: 23andMe’s database contains 10 million users and Ancestry.com holds 15 million users. While so far both 23andMe and Ancestry.com have adamantly defended their users’ privacy and vowed they will fight requests from law enforcement to comb through their data, many are worried this recently granted warrant sets a dangerous precedent for expanding surveillance powers using genomic technologies. However, despite, or alongside, fears of a dystopian surveillance state, the US government is already attempting to regulate these modes of surveillance. See, for example, the Department of Justice’s interim policy on ‘Forensic Genetic Genealogical DNA Analysis and Searching’. Additionally, some states have explicit, strict policies to which law enforcement must adhere to even obtain approval to do a familial genealogical search for suspects. These processes – as well as the associated worries – touch upon a key issue: what exactly does, and will, DNA surveillance look like? The details of various governmental regulations will matter as much as the developing forensic techniques themselves.
The case of Detective Fields being granted his warrant, however, is only a small part of the larger transformations occurring in this quickly developing nexus of forensic genomics and surveillance. In this developing story we will cover these transformations. What is the state of the technologies of forensic genomics – what can they currently do and not do? What questions of ethics and justice arise alongside these developments? How will questions of balance between individual privacy and law enforcement’s imperatives to solve crime cases be handled? How can we develop ethical frameworks that can respond to the necessity of thinking beyond individual-based consent, ones that can adequately handle the questions of folding genetic genealogy information into mass surveillance?
Already, about 60% of Americans of Northern European descent, predominantly white Americans, can be identified through genealogy databases – whether or not they’ve joined one themselves, according to this study published in Science, November 2018. Further, this number is expected to jump to 90% of white Americans within just two years from now. This is because, “In the hands of an advanced genealogical sleuth, often all that’s needed to identify someone from a drop of saliva, blood or semen are the DNA profiles of two third cousins. …What’s a third cousin? It’s someone who shares a set of your 16 great-great-grandparents. We all have at least 800 of them out there somewhere, and there’s a good chance that some were once excited enough about genealogy to join GEDMatch or FamilyTreeDNA.” (Heather Murphy, New York Times). Importantly, it is likely that 23andMe and Ancestry.com will also likely be legally searchable by law enforcement in the near future.
Forensic techniques to identify individuals by their DNA are only continuing to become more sophisticated. In one crucial new development, Ed Green, a paleogeneticist at UC Santa Cruz, has developed a technique “that makes it possible to recover and sequence DNA from hair without the root.” Previously, it was considered impossible to generate a DNA profile for a genealogy site using hair without a root since scientists could not sufficiently extract DNA from rootless hair. However, Dr. Green’s technique has changed this, with massive implications for crime and surveillance: Dr. Green’s lab now has a steady stream of requests from investigators for help extracting sufficient DNA from rootless hair. While Dr. Green and others do not think this technique will be widely embraced in the near future because it is still cost prohibitive, many are worried about privacy implications of the over-collection of DNA from the American public.
Another technique of forensic DNA analysis occasionally used in criminal investigations, which deserves further scrutiny especially as the technique develops, is ‘secondary DNA transfer.’ See this Wired 2018 story about a man “framed for murder by his own DNA.”
- “Playing Catch a Killer with a Room Full of Sleuths,” New York Times, Heather Murphy, October 5, 2019.
- “Genetic genealogy can help solve cold cases. It can also accuse the wrong person.” PBS, Nsikan Akpan, November 7, 2019.
- “Investigative Genealogy Helped Police Catch Serial Killers and Rapists. Now Cases Are Going Unsolved.” BuzzFeed News, Salvador Hernandez, October 26, 2019
- “German Police to Eye 900 Men’s DNA Seeking Girl’s Killer.” New York Times, Associated Press, November 23, 2019.
Debating the creation of a universal genetic forensic database
Within the pages of top journals such as Science are debates about the possibility, usefulness, and ethicality of creating a government-led universal DNA database for forensic purposes. One hotly debated question concerns whether a universal database would be more or less discriminatory than current methods toward already-disadvantaged population groups, such as Latino/as and African Americans in the U.S who are disproportionately arrested and charged for numerous crimes and whose genetic information is already stored in the FBI’s CODIS database (Combined DNA Index System).
“Is it time for a universal genetic forensic database?”. Science, J.W. Hazel et al. November 23, 2018.
- In this Science policy forum piece, the authors argue that, in the U.S., “If correctly implemented, a universal [DNA] database would likely be more productive and less discriminatory than our current system, without compromising as much privacy.” They state that this universal database would not be as dramatic a change as many assume, since the combination of state and federal DNA databases already provide the government with access to DNA data from a large percentage of the country’s population, either directly or indirectly through genealogical methods of identification through relatives.
“Risks of Compulsory Genetic Databases”. Science, Y. Joly et al. March 1, 2019.
- In direct response to the above policy forum piece by Hazel et al., authors Y. Joly et al. highlight the many risks associated with creating a universal, compulsory DNA database, arguing that this is ultimately a bad idea: “Crime deterrence and administrative efficiency are important objectives. However, free and democratic societies must balance these goals against privacy, autonomy, and the presumption of innocence. The willingness to trade universally recognized rights for the hypothetical benefits of administrative efficiency is a common denominator of surveillance states.”
China’s Surveillance and Persecution of Uighurs.
In February 2019, the New York Times reported on how the Chinese government is using extreme surveillance measures to help make its Uighurs, a Muslim minority population, “more subservient to the Communist Party,” particularly through collecting Uighur individuals’ genetic material and setting up a massive DNA database. Notably, their government has been collaborating with American companies and scientists such as the Massachusetts biotech company Thermo Fisher, and prominent Yale geneticist Kenneth Kidd. Since then, a number of articles have appeared detailing Kidd’s collaborations with Chinese police, raising many questions about the ethics of overlaps between genetic research and surveillance.
“How Americans — Some Knowingly, Some Unwittingly — Helped China’s Surveillance Grow.” NPR, All Things Considered. Ailsa Chang. July 18, 2019.
- “Critics say, by collaborating with the Chinese police, Kidd helped China advance a system to target, track and oppress the Uighurs. He says he followed accepted practice and that this collaboration happened years ago, before much of the world knew what was happening in Xinjiang. Besides, Kidd says, he’s now stopped all collaborations with the Chinese Ministry of Public Security.” Kidd also says he has received no response from their government about whether they have in fact stopped using the genetic samples he provided them.
“The Researcher’s Responsibility,” The New Journal, Katherine Hu. September 12, 2019.
- Yale undergraduate student Katherine Hu questions Dr. Kenneth Kidd’s motives: “A closer look at Kidd puts his naiveté into serious question. This isn’t the first time he has been involved in a genomics project accused of racist motives. Kidd’s relationship with China is also ethically suspect; he has collaborated with scientists who misuse genetic research for nationalist purposes and received funding from Chinese governmental institutions. Was Kidd truly unaware of the plight of Uighurs like Ayup, as he claims? Or did he put scientific achievement first, turning a blind eye to the agenda of the Chinese surveillance state?”
Germany’s Legalization of DNA Phenotyping
The German state of Bavaria passed a controversial law on May 15, 2018 which allows police to “analyze forensic DNA samples to predict the geographical ancestry and physical characteristics—hair color, eye color, skin color, and age—of an unknown suspect who poses an imminent danger.” Even more recently, the German Parliament voted to legalize DNA phenotyping for these characteristics across all of the country. While many champion this law because they believe it will help improve police efficiency in crime-solving and surveillance, many others are noting the dangers of DNA phenotyping procedures. Data privacy and antiracist organizations, for example, are warning of the discriminatory effects of DNA dragnets based on traits like skin color.
Finally, unrelated to Germany, see this creative use of DNA phenotyping in Hong Kong… “Hong Kong litterbugs shamed in billboard portraits made using DNA from trash.”