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.

Filed Under: dna, familial searches, partial match, privacy


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  1. icon
    Rose M. Welch (profile), 21 Jun 2010 @ 8:33am

    Re:

    Facts can't be copyrighted. We're not speaking of copyright here. We're speaking of privacy, and search. Entirely different parts of the Constitution, hon.

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