If Your Brother Was Arrested For A Crime, Does It Violate Your Privacy When They Store His DNA?

from the modern-legal-issues dept

Well, here’s an interesting privacy conundrum. In the US, if you are arrested, the government records your DNA in a giant database. There is already some controversy over the fact that it’s upon arrest, and not conviction, but the privacy issues appear to go much deeper. Slate is running a fascinating article about how there are some serious privacy questions raised by law enforcement using that DNA database to track down relatives of people in the database.

Close relatives are genetically similar. Parents, children, and siblings share, on average, at least half of their DNA. Not surprisingly, similar DNA generates similar DNA profiles, which are the stripped-down numerical records stored in DNA databases. So, even if a crime-scene sample doesn’t exactly match any existing offender profile in CODIS, police may still find a partial match–an incomplete DNA match between the forensic evidence and a known offender. If this happens, police know the offender who partially matches the evidence did not himself leave the sample at the crime scene, but–and this is where it gets interesting–it’s very possible one of his relatives did. After screening those relatives with follow-up DNA testing, police may have a new lead.

So, effectively, if a close relative of yours gets arrested, technically, a part of your DNA is now in the government’s database, which they can search for and track you down. This opens up all sorts of thorny privacy questions:

With these new techniques, relatives are effectively included in the database through their genetic similarity to a profiled offender. Think of it this way: If you’ve never been arrested, your DNA profile shouldn’t be in CODIS. But if your brother has been arrested and is profiled in CODIS, then whenever these new searches are used, you, too, may be searchable–and targeted for investigation–through the database. These searches render offenders’ relatives effectively searchable in CODIS, even though the relatives themselves have never been officially included.

There are some serious questions as to whether or not that’s even legal. Think of it this way: if law enforcement instead wanted to include DNA samples from anyone who was arrested’s immediate family, courts would almost certainly throw that out as a violation of the 4th Amendment. But, it effectively happens anyway.

On top of that, to make matters worse, it appears that many states regularly do such “partial match” or “familial search” queries with little or no oversight:

California and Colorado are known to use familial search, and these states have at least publicly announced their new policies. But new survey results reveal that many other states also have familial-search or partial-match policies that went unannounced and were never even publicly debated. Most of these policies exist only in internal laboratory manuals, if they are written down at all. Nebraska, for instance, authorizes familial search in an internal lab manual. This policy decision evidently occurred without public discourse and has thus drawn virtually no public attention.

In fact, no state has specifically authorized familial search through legislation. Only Maryland has addressed familial search by statute–and it banned the practice.

The article goes on to detail what a number of states are doing, and how some policies are more secretive or restrictive than others. But, overall, this seems like a legal issue that almost certainly is going to hit the courts sometime very, very soon.

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Comments on “If Your Brother Was Arrested For A Crime, Does It Violate Your Privacy When They Store His DNA?”

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80 Comments
Anonymous Coward says:

Re: Re: Re:

nope. if it is fact (part of a criminal investigation), where is the privacy issue? anything that is brought before a court of law, or part of a criminal investigation is out there. dna isnt any different in the end from your address or your name, it is a fact about you.

basically, if you want to claim that dna is not copyrightable, but only a fact, then it is also a fact of evidence in a criminal case. are the facts of a criminal case not public record?

Rose M. Welch (profile) says:

Re: Re: Re: Re:

No one is making any claims about copyright, except to claim that copyright doesn’t apply to these cases.

And, no, the facts found during an investigation are not automatically public record.

Further, there’s a limit to the kinds of facts and how the facts are obtained during that investigation, and that’s what being discussed.

Pickle Monger (profile) says:

Really?

I’ll be honest, though I agree that this might make people uncomfortable is this really a problem? As has been discussed on this blog many times, technopanics serve no purpose. We can all agree that texting while driving can lead to accidents. And yet, as has also been discussed many times on this blog, the anti-texting legislation is unnecessary. And as I’ve read in a number of TechDirt articles, before starting to freak out, let’s find out if this really is a problem.
Even if police determine that a relative of a person whose DNA is in the system, has left his own DNA at the scene of a crime, that alone is not enough to convict. The investigators will still need to prove that the suspect was involved in the crime itself.
Do the potential problems involved with this practice outweigh the benefits?
All that is to say that I am not convinced that this is a really big problem that need to be legislated.

Hephaestus (profile) says:

Re: Really?

“Even if police determine that a relative of a person whose DNA is in the system, has left his own DNA at the scene of a crime, that alone is not enough to convict.”

Actually DNA doesnt mean anything anymore. Israeli Scientists Prove DNA Evidence Can Be Faked. Someday soon you are going to be able to order kits to do this yourself.

Anonymous Coward says:

Re: Re: Really?

This is a great reminder that these DNA profiles are not someone’s full DNA (which is not even close to easily synthesizeable at this point even if the person’s full DNA had been sequenced).

As such, keeping everyone’s DNA profile on file really isn’t such a big deal: it doesn’t really include the information of whether a person has various genetic diseases or whatever other genes whose effects we may figure out in the future.

Of course, the fact that one can identify family members using these profiles does raise some privacy concerns, e.g. someone who was adopted might abuse the system to find their biological parents.

It seems like there should be some technical solution to these problems though: get DNA profiles from everyone, but apply some sort of hash to it to make it so that it can only be used to search for an actual match to a new sample, and not to find family (who would, of course, also be in the database themselves).

DNA profiles for everyone should also decrease the risk of false convictions due to incredibly rare DNA profile matches.

fjsklsdkl says:

Re: Re: Re: Really?

This is a great reminder that these DNA profiles are not someone’s full DNA (which is not even close to easily synthesizeable at this point even if the person’s full DNA had been sequenced).

“At this point” being the key qualifier there. In the near future it will be.

And while it is true that the profiles currently being stored in databases “are not someone’s full DNA”, it should be remembered that the full DNA samples themselves are indeed being stored somewhere and these full DNA samples can now easily be copied (or “amplified”, as they like to call it). Such copied full DNA samples could then be planted as evidence. Evidence which most courts will accept without question which most jurors will believe is infallible.

As such, keeping everyone’s DNA profile on file really isn’t such a big deal: it doesn’t really include the information of whether a person has various genetic diseases or whatever other genes whose effects we may figure out in the future.

Again, you’re speaking of today’s technology. Future profiles are like to be much more complete. In addition, the actual samples be stored today do include that information.

Of course, the fact that one can identify family members using these profiles does raise some privacy concerns, e.g. someone who was adopted might abuse the system to find their biological parents.

I’m waiting for the first studies on “genetic inheritance” and “criminal tendencies” to see what people think of it then. When people who can’t jobs because their DNA shows them to have “criminal tendencies” resort to crime to survive, the supporters will of course crow “See, I told you so!”

DNA profiles for everyone should also decrease the risk of false convictions due to incredibly rare DNA profile matches.

DNA samples from everyone will make it easier to convict virtually anyone of a crime using copied DNA samples. While some may argue that “the end justifies the means”, I, personally, would consider such convictions to be “false”.

Pat says:

wow what a headline?

“In the US, if you are arrested, the government records your DNA in a giant database.”

Really now, where is this true? I suppose fingerprints, but that is about it. If arrested, you do not give a blood/saliva test and have lab work done on it. You know how backed up the labs woudl be if every arrest had a DNA test on it.

Anonymous Coward says:

Re: wow what a headline?

The CODIS database originally was primarily used to collect DNA of convicted sex offenders. Over time, this has expanded. Currently all fifty states have mandatory DNA collection from certain felony offenses such as sexual assault and homicide, and 47 states collect DNA from all convicted felons. Other states have gone further in collecting DNA samples from juveniles and all suspects arrested. In California, as a result of Proposition 69 in 2004, all suspects arrested for a felony, as well as some individuals convicted of misdemeanors, will have their DNA collected starting in 2009. In addition to this, all members of the US Armed Services who are convicted at a Special court martial and above are ordered to provide DNA samples, even if their crime has no civilian equivalent (for example adultery).

Pat says:

Re: Re: wow what a headline?

Thanks for the clarification. To each his own I suppose, I think it is a great idea for felonies…..if convicted. The devil is in the details, “some convicted of misdemeanors” .. now this says convicted, not just arrested, sounds OK to me. This still sounds like I am missing something here, I still highly doubt any State is doing this when pulling someone over for a speeding ticket.

ruiwoo says:

Re: Re: Re: wow what a headline?

I still highly doubt any State is doing this when pulling someone over for a speeding ticket.

But if they are then subsequently found guilty of speeding (a misdemeanor), I suppose you would have no problem with collecting their DNA since collecting samples from those convicted, not just arrested, for misdemeanors “sounds OK” to you. Unfortunately, there are many out there who agree with you. G*d, help us.

Anonymous Coward says:

Re: Re: Re: wow what a headline?

IIRC, the DNA collection starting in 1994 for the Armed Services was to be used to identify the remains of military personnel killed in action. And the DNA database could not be used for any other reason, i.e. military investigations. Now that policy may have changed since then.

Mike Masnick (profile) says:

Re: wow what a headline?

Really now, where is this true? I suppose fingerprints, but that is about it. If arrested, you do not give a blood/saliva test and have lab work done on it. You know how backed up the labs woudl be if every arrest had a DNA test on it.

From the article:


While it was originally authorized to store the DNA profiles of only convicted violent felons, the FBI Combined DNA Index System (CODIS) now includes all federal offenders—including arrestees not yet convicted of any crime—as well as convicts from all 50 states and arrestees from many….

McCrea says:

Re: Oppression

Alot of us recruits threw hissy fits in ’94 about the military recording our DNA for “identification purposes (possible replacement of dogtags)”

That I would vote in favor of recording DNA of convicted felons is not my point. The point is I didn’t vote for, or hear about, these decisions before they were made, and also, apparently, several of us wouldn’t have known about the current state of affairs if not for Mikey here.

Rooker (user link) says:

Re: Re:

This is the part that worries me, not that they use it to track down a criminal. I’m not sure I mind the police being able to track down a killer through his brother. I’d congratulate them on finding a criminal and putting him in front of a judge.

I very much mind the fact they would store that sort of information from people who haven’t been convicted of a crime. To collect that sort of information needs to require more than simply being arrested. In this country, you can be arrested for no reason at all beyond a cop being in a pissy mood and it’ll be perfectly legal no matter how big your lawyer is.

Fushta says:

“California and Colorado are known to use familial search…”

Oh, and Nevada, New York, and Florida, too. I know. I watch CSI.

Seriously, though, it’s not a privacy issue since they don’t have my DNA (only part of it). And, since, I haven’t commited any crimes, I’m in the clear.

Also, if they do pick me up for questioning, and get my actual DNA, then I’ll be cleared, since it wasn’t me.

vcxcv says:

Re: Re:

Seriously, though, it’s not a privacy issue since they don’t have my DNA (only part of it).

Really? What makes you think that?

And, since, I haven’t commited any crimes, I’m in the clear. Also, if they do pick me up for questioning, and get my actual DNA, then I’ll be cleared, since it wasn’t me.

Yeah, just keep telling yourself that. (chuckle)

Sychodelix (profile) says:

This is interesting, mostly because I haven’t thought of it before. But I really see no real problem with it. It takes an exact match to be usable in court, therefore consent has to be given by any family members tested, or warrants have to be issued if they refuse. So in truth, their privacy is still protected.

Not as if we have any real expectation of privacy, anyway.

Chuck Norris' Enemy (deceased) (profile) says:

We will need a court case

Here is my idea. If you are accused of a crime and are required to give a DNA sample and later proven innocent then your ‘profile’ should be removed from CODIS. This will most likely take a court case to get compliance from the justice department (good luck there). It will likely have to go all the way to the Supreme Court which will hopefully draw enough attention to it. Otherwise, your DNA sample was taken and you are guilty of the crime then your DNA stays in CODIS. Hey, if you commit a crime you lose some rights. Now if your brother commits a crime they can hit you up for information. I’m sorry but if you are a convicted criminal you lose some rights, privacy in this instance.

Rose M. Welch (profile) says:

Re: Re: Re: We will need a court case

Yes, in some cases, it would be beneficial to give a blood sample, but this isn’t a rule, obviously.

If you were accused of burglary, or identity theft, trespassing, or any number of DNA-less crimes, including rape without a DNA sample, your DBA wouldn’t matter, so there’s no reason for you to give up a sample.

MD (profile) says:

This IS a problem. There is clearly some sort of “reasonable expectation of privacy” breach and may also give rise to other 4th Amendment protections such as search and seizure.

There may be no physical link between myself and a crime scene with the exception of a piece of DNA that would normally show up as having “no match” in CODIS. But, if a family member has submitted DNA for whatever reason, a “partial match” starts poiting arrows in my direction. The question here is where does “partial” fit in? Is there probable cause for a warrant? Does this make me “guilty by association?” Where is the line drawn between law enfocement getting the job done and my rights being violated?

Legislation is in place to give law enforcement the proper tools to effectively go about their job while also protecting the rights and civil liberties of those affected by law enfocement. And again, in supporting law enforcement, technology successfully erodes our rights and civil liberties.

IOERROR says:

Ok

“Seriously, though, it’s not a privacy issue since they don’t have my DNA (only part of it). And, since, I haven’t commited any crimes, I’m in the clear.”

The whole point is because your brother is on file you could find yourself in court defending yourself for nothing more then the fact that a DNA sample 50% match to yours was found at a crime sceen.

While I myself don’t have a problem with this I do believe it peoples rights to privacy and this type of searching rides a thin line on that.

John Doe says:

Re: Twins

I am an identical twin, so if my brother leaves DNA at a crime scene, they may come after me. Actually, I watched a special on twins and DNA once. There are cases where the authorities feel they have the wrong twin in jail but they can’t prove it because the DNA is the same. There are companies trying to determine if there is a way to determine one twin from another from the DNA but no luck so far.

Anonymous Coward says:

Something like 30% of the American population get arrested at some point, so they have at least 90% of the people in CODIS LoL

U.S. a country of criminals.

How about that Judge and lawyer that were sending kids to correction facilities for minor infractions just to keep them there and have the state pay them, that was sweet business, the judge sentenced the kids and the lawyers was the owner of the correction facility and they both got money.

In practice they have everybody already.

ABC says:

Something like 30% of the American population get arrested at some point, so they have at least 90% of the people in CODIS LoL

U.S. a country of criminals.

How about that Judge and lawyer that were sending kids to correction facilities for minor infractions just to keep them there and have the state pay them, that was sweet business, the judge sentenced the kids and the lawyers was the owner of the correction facility and they both got money.

In practice they have everybody already.

JKL says:

Re: Re:

Wasnt there something about police in britain pulling over people for speeding just to get their dna on record?

Yep, and even though the European Court of Human Rights ruled against them, they’ve still got all that DNA. Now they just add additional bogus charges (to be later dropped) in order to justify it and people are even worse off than before by now having a more serious arrest on their records.

So much for courts being able to do anything about it.

Anonymous Coward says:

it’s scary that many of the comments are expressing that this isn’t a problem because “they don’t have my DNA” or “a conviction requires an exact match”.

There are many convictions that are based on partial DNA evidence. The entire DNA is not matched only specific segments (http://www.nist.gov/public_affairs/licweb/dnastep.htm). 13 specific segments are compared. If all 13 are matched then it’s considered an exact match. Court cases have been decided on as few as 7 or 8. Over time the “recommended” number of matching segments to be considered a match for court cases has quietly been increased to be around 10 or 11 at present. This is not because “they’ve gotten better” at matching but because it was discovered that as there are more DNA samples in the database more and more non-related people are being matched.

In the case of the national DNA database reviews of the potential non-related matches has been restricted by the FBI although some have been done by various states before being stopped. I don’t have the link available but it was reported that a search done (by Arizona state I believe) that non-related matches were found where the DNA samples matched in 12 of the 13 pairs. One match that matched 11 of 13 pairs was a match between a white person and an african american.

In court when they state that the potential for a DNA match is trillions or more to one they are referring to the theoretical matches that would occur if every possible DNA combination were evenly distributed.

Don’t just assume that because they don’t have YOUR DNA or that you didn’t commit a crime that this isn’t a problem.

Tor (profile) says:

Comparison with the EU

For the purpose of comparing this to the european situation here’s what the European Court of Human Rights found in the Marper v. UK case (pdf):

“In conclusion, the Court found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, failed to strike a fair balance between the competing public and private interests, and that the respondent State had overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society. The Court concluded unanimously that there had been a violation of Article 8 [of the European Convention on Human Rights] in this case.

McCrea says:

Re: Comparison with the EU

Interesting, but I’m not a lawyer (or barrister, or what have you).

So, to make a leap in that particular form of logic which I do not possess, wouldn’t “as applied in the case of the present applicants” [and the ending “in this case”] mean something like the case only established a precedent instead of actually establishing a ruling to benefit all of society in general?

(Sorry if I’m only picking a fight. I honestly never know.)

Geordie says:

DNA

Which organization owns the DNA then? Does the state own it? Can state then sell this information? To health insurance companies? Can they expand the DNA sample taking to traffic violations, parking tickets etc.

I guess my question is if taking DNA samples is a valid, legal activity, then what legislation is in place to prevent future governments for abusing the DNA database?

Is America asleep?

bubba says:

Bummer

Are you kidding, if my brother is convicted/arrested and his DNA is on file I might be caught if I leave DNA at a crime scene. I guess that is enough deterrent for me to give up crime and live an honest life 🙂

Like the DA in Florida said when commenting on the states faulty electric chair. “Be warned, if you are going to commit murder in Florida you should know there might be something wrong with our Electric Chair!”.

asd says:

Re: Bummer

Are you kidding, if my brother is convicted/arrested and his DNA is on file I might be caught if I leave DNA at a crime scene. I guess that is enough deterrent for me to give up crime and live an honest life 🙂

Maybe we should be getting DNA from everyone then, even babies at birth? After all, if you’ve done nothing wrong then you have nothing to fear, right?

BTW, why are you posting anonymously?

Hugh Mann (profile) says:

How is this different . . .

. . . than having the suspect’s picture or address, and using that to round up associates? My brother not only shares much of my DNA, he looks a lot like me. If (assuming my brother had ever been arrested) someone picked my brother’s picture out of a mugshot book, but he had an alibi, a resourceful cop might very well consider taking a look at MY whereabouts on the night in question. Same thing with addresses. Maybe it was the roommate who dun it!

It’s all about linking currently-known facts to potential other leads. There are already many facts about a suspect that can lead to investigating other people, so why is DNA different?

For the record, I don’t support collection of DNA at arrest. Only upon conviction. Or perhaps at arrest, but it can’t be kept if charges are dropped or the suspect is acquitted. Something like that.

HM

jjmsan (profile) says:

If you are innocent you have everything to fear.

A friend of mine pointed out to me that the ones who lead a life of crime have less to fear from the erosion of liberties than people who are innocent. Innocent people have never dealt with the system, are unlikely to have lawyers ( while at the same time having too much money for a court appointed one)and tend to believe that telling police officers off or asking for a badge number is something they have a “right” to do.

Ryan (profile) says:

This is a good Thing

Well I guess if my brother is a felon maybe I shouldn’t commit any crimes, what an awful violation of my rights. As a productive member of society, I find this concept useful since it will help narrow down a search for someone who has committed a crime. Isn’t that the funny part about 75% of all privacy issues only really affect people who are worried about getting caught doing something that is probably illegal.

anonymous and proud of it says:

Re: This is a good Thing

“Isn’t that the funny part about 75% of all privacy issues only really affect people who are worried about getting caught doing something that is probably illegal.”

So why are you posting with a fake name? What kind of illegal stuff are you up to?

Ryan (profile) says:

Re: Re: This is a good Thing

who said it was fake? I don’t need to hide anything. If dna databases can help officials track down a suspect quicker, by then all means go for it. If there is enough dna evidence at a crime scene to point fingers at some one then that person knows something about the crime or the person responsible.

anonymous and proud of it says:

Re: Re: Re: This is a good Thing

“who said it was fake?”

I did, because I happen to have information that it is. Care to *try* to prove otherwise? (you can’t because it’s true)

“I don’t need to hide anything.”

Then why are you hiding behind a fake name?

“If dna databases can help officials track down a suspect quicker, by then all means go for it.”

I was able to track you down and I didn’t even need DNA.

“If there is enough dna evidence at a crime scene to point fingers at some one then that person knows something about the crime or the person responsible.”

Yes, I think that you just might. I won’t say what it is just yet because I don’t want to reveal my sources, but you’re certainly implicated.

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