Genealogical DNA testing and the law

Yesterday in her blog, Legal Genealogist Judy Russell raised more issues with the use of Genealogical DNA by police in identifying perpetrators in major crimes (to read Judy’s blog post click here).  At the time when Family Tree DNA has decided to allow law enforcement access to its matching database for crime scene kits, a Washington State woman learned that her identity as a distant relative of a man arrested for murder in Iowa had been disclosed in one of the search warrants issued in the case. She had uploaded her data to GEDmatch.com where it was used to help identify the suspect, and as a result an arrest was made.  In the ensuing court case, her identity was disclosed – so the suspect and his legal team know her identity as the person who provided the DNA which was, at least in part, responsible for his arrest.

This had me suddenly sitting up and taking notice, and totally reviewing my opinion on the use of genealogical DNA by police.  While my attitude until now has been that if a distant relative of mine was a murderer, rapist or committed some other major crime and my DNA help to identify them, more power to the police.  The idea of that individual and their friends and legal team having access to my identity via the police search warrant, however, does not sit so well.  As Judy says “in that particular case, at least so far, no-one close to the suspect has decided to take any action against the unwitting relative whose test was the key to identifying the suspect” – but what protection would we have if they did??  While the possibility of someone seeking revenge on the DNA provider who helped convict them might be remote, protections still need to be in place.

There is also the fact that at this time, anyone doing a DNA test with Family Tree DNA has to actively opt OUT of allowing their DNA to be used by law enforcement, rather than choosing to opt in.  So people have to firstly be aware of the possibility of their DNA being used by law enforcement, read the fine print and follow through on how to opt out for law enforcement access.

There are other questions to be asked.  How long does law enforcement keep information they have obtained from genealogy databases? Are users whose information has been tapped by law enforcement or their proxies notified?  Is it required that the individual(s) who provided the matching DNA be revealed to the suspect and his/her attorneys or could the court order such information sealed?  There seems to be little, or no, protection for the privacy of the individual who tested their DNA for genealogical research after law enforcement becomes involved.  This information COULD be sealed and not disclosed. Identities of ‘confidential informants’ (the legal term) are protected all the time unless there is a compelling need for disclosure that can’t be met by any less intrusive means. The problem is that the police and prosecutors aren’t treating DNA matches as confidential informants and not ensuring that their privacy is protected.

Also, opting out closes off looking for DNA matches for service men and women’s remains and unidentified bodies.  It is currently all or nothing, and we are all – genealogical DNA testing companies, law enforcement and the general public – playing catch-up with the legalities.