Journal of Information & Privacy Law

DNA Technology Causes Growing Privacy Concerns

By Patrise A. White on Monday, October 30th, 2017
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As technology advances there is a growing need for more knowledge. Scientist and doctors search for new ways to cure many diseases. Moreover, law enforcement agencies look for better ways to ensure the person being prosecuted is in fact the individual who committed the crime. No other scientific breakthrough has advanced both of these goals more than DNA, Deoxyribonucleic acid. According to Encyclopedia Britannica, the development of DNA has lent itself to the study of Human Genetics, which “emphasis is on understanding and treating genetic disease and genetically influenced ill health.”1 Moreover, “[f]orensic use of DNA technology in criminal cases began in 1986,” and continues to grow.2

As the use of DNA has become more prevalent, many criminals who stood convicted of crimes have been exonerated. According to CNN as of December 04, 2013 there were 311 “post-conviction DNA exonerations.”3 As innocence projects become more prevalent across the nation these numbers will continue to rise. Yet the flip side of an innocence project is that law enforcement agencies will also be able to utilize DNA evidence for the prosecution of people accused of committing crimes. Law enforcement agencies have even combined forces to create a national DNA database known as CODIS, Combined DNA Index System. This system allows law enforcement agencies to compare DNA samples to other samples kept in the CODIS database. The two samples are then used to identify known criminals who subsequently commit other crimes.4 Typically CODIS profiles are created from the “Convicted Offender Index”, whereby state agencies submit DNA of convicted offenders to CODIS.5 The other method of creating a profile in CODIS is the “Forensic Index”, which contains “DNA profiles from crime scene evidence.”6

As DNA technology becomes more prevalent in society new business models are being created. These businesses allow customers to submit DNA samples to learn of their own heritage. One such site is Ancestry.com. This site allows its customers to learn of their heritage by submitting a saliva sample to the Ancestry labs for $79.00-$99.00 and in six to eight weeks the customer unlocks the door to their DNA. What one might think is an innocent inquiry into one’s past and genetic makeup could never open the door for an individual’s DNA to be subpoenaed by law enforcement agencies.7 This could not be further from the truth.

Although CODIS is an excellent way for law enforcement agencies to obtain DNA matches and subsequently use those matches to prosecute and convict many criminals, CODIS is limited in the DNA samples in which it contains. The CODIS database only houses the samples of either convicted individuals or individuals that have let DNA at a crime scene.8 This may seem like officers would have a vast number of DNA samples but this is not the case, many crimes go unsolved, despite having DNA samples.9 In fact “if the perpetrator has not been involved in the legal system, or another crime, their DNA profile will not be in [CODIS].”10 In comes Ancesty.com and other such sites; which are potentially a cornucopia of DNA samples ready for law enforcement to subpoena at will.

One might immediately believe that the ability of law enforcement to obtain DNA samples from Ancestry, or other similar sites, is too farfetched. Yet this could not be further from the truth. In a recent case, Roe v. Marcotte, the United States Court of Appeals for the Second Circuit found that if a collection of a DNA test was not intrusive or humiliating to an individual, with a warrant an officer would be free to obtain the individual’s DNA. 11 Nothing could be less intrusive in collecting a DNA sample than obtaining the sample from a database that has collected samples from individuals on a voluntary base. Ancestry.com potentially opens the doors for officers to have unlimited access to DNA both locally and worldwide, as Ancestry’s DNA options are offered in other countries. A law enforcement agency need only obtain a warrant, after showing probable cause, and Ancestry’s database is theirs for the taking.

The fact that law enforcement agencies could potentially have access to worldwide DNA databases should send chills down your spine. The fact that law enforcement can access databases not just across the nation, but across the world is frightening. Time has shown that many, definitely not all, law enforcement agencies are too quick to hang an entire case on DNA testing, only for the DNA analysis to have been compromised by poorly run labs and inept lab workers. Too many times we have seen post-conviction reanalysis of DNA determine that there were errors in the testing of the DNA sample used to convict an individual. Even as recent as 2015, the FBI admitted to having flawed DNA testing.12 Of those cases that used flaw DNA testing 32 were sentenced to death, with 14 of those individuals having “been executed or died in prison.”13 Just to think that law enforcement would not be only able to use DNA they have collected, but DNA given voluntarily by an individual in pursuit of their private objectives is outrageous. Yet this is a reality we are currently faced with, and will only grow as these sites become more prevalent in society. Although, only the Second Circuit has determined that DNA can be collected, with a warrant, in an unobtrusive manner, what is to say other Circuits will not follow. Where it will end only time will tell.

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  1. A.M. Winchester, Genetics Encyclopædia Britannica (2017), http://www.britannica.com/science/genetics#toc261532 (last visited Oct 18, 2017).
  2. The DNA “Wars” Are Over , http://www.pbs.org/wgbh/pages/frontline/shows/case/revolution/wars.html (1996), http://www.pbs.org/wgbh/pages/frontline/shows/case/revolution/wars.html (last visited Oct 18, 2017).
  3. Exonerated: An Innocence Project fact sheet, CNN (2013), http://www.cnn.com/2013/12/04/justice/prisoner-exonerations-facts-innocence-project/index.html (2013), (last visited Oct 18, 2017).
  4. CODIS and NDIS Fact Sheet, FBI (2016), https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet (last visited Oct 18, 2017).
  5. CODIS, Forensics for Survivors, http://www.surviverape.org/forensics/sexual-assault-forensics/codis (last visited Oct 18, 2017).
  6. CODIS, Forensics for Survivors, http://www.surviverape.org/forensics/sexual-assault-forensics/codis (last visited Oct 18, 2017).
  7. Discover the family story your DNA can tell., AncestryDNA™ US | DNA Tests for Ethnicity & Genealogy DNA Test, https://www.ancestrydna.com/kits/?s_kwcid=ancestry%2Bdna&gclid=Cj0KCQjw95vPBRDVARIsAKvPd3IUzNFZzA63Y5RWgJ2BfDo5si-yTdcnlaCW2ut-5zTYQUdEv7NUu_AaAjv7EALw_wcB&rd=https%3A%2F%2Fwww.ancestrydna.com%2Fkits%2F%3F&o_xid=79107&o_lid=79107&o_sch=Paid%2BSearch%2BBrand (last visited Oct 18, 2017).
  8. CODIS, Forensics for Survivors, http://www.surviverape.org/forensics/sexual-assault-forensics/codis (last visited Oct 18, 2017).
  9. CODIS, Forensics for Survivors, http://www.surviverape.org/forensics/sexual-assault-forensics/codis (last visited Oct 18, 2017).
  10. CODIS, Forensics for Survivors, http://www.surviverape.org/forensics/sexual-assault-forensics/codis (last visited Oct 18, 2017).
  11. Roe v. Marcotte, 193 F.3d 72, 79-80 (2d Cir. 1999).
  12. Spencer S. Hsu, FBI admits flaws in hair analysis over decades The Washington Post (2015), https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html?utm_term=.0650434481d7 (last visited Oct 18, 2017).
  13. Spencer S. Hsu, FBI admits flaws in hair analysis over decades The Washington Post (2015), https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html?utm_term=.0650434481d7 (last visited Oct 18, 2017).

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