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Question: Is it ethical for law enforcement to be able to use DNA gathered through commercial databases to help solve crimes?

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Interview Questions - I interviewed Kourtney Osegueda and this is a brief description of how she answered. I will go more into depth in my Google site.

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Interview Questions - I interviewed Kourtney Osegueda and this is a brief description of how she answered. I will go more into depth in my Google site.

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1. Would you mind sharing a brief description of what you do for a living?

I am an attorney in the U.S. Navy. I specifically advise Commanders who make decisions regarding service members charged with misconduct, who may potentially face trial by military court martial.

2. In your expert opinion, do you think it is ethical for law enforcement to use DNA collected through databases such as 23andme for purposes other than what they intended when they submitted their samples? Why or why not?

No, there was likely not informed consent at the time the person submitted their DNA to the commercial company. They would not have known that law enforcement would be using it for these purposes at a later time.

3. Do you think the use of those samples to connect to others they may be related to is likewise ethical? Why or why not?

Also no. This is even more problematic because the third party definitely did not give consent in this situation. That said, the DNA is also not as strongly linked so I suppose there is some reasonable doubt created at trial that may be helpful to the individual’s defense. Regardless, it creates an additional layer of concern.

4. Do you believe that individuals fully understand what they are consenting to when sending in DNA to these commercial companies?

No, as a indicated earlier, the disclaimer is often boilerplate language, likely not read or fully understood, and probably did not address this possiblity.

5. As an attorney, do you think there are any fourth amendment concerns gained by law enforcement from these databases?

Definitely. These types of endeavors seem to be mere fishing expeditions, not based on true probable cause.

6. How do you think the legal field should evolve to address the rapid growth of genetic data and its forensic use?

More training. Regulations. Concrete policies to address.

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This source goes into the debate between law enforcement using commercial DNA databases to solve crimes. It talks about how the "Golden State Killer" was identified using GEDmatch to find his family, and therefore find him. In that case it was a victory, however it blurred some lines on if that should actually be allowed. There are also some potential issues that could come out of using commercial databases to find people and their family members. DNA interpretation varies significantly by labs so if the government can use DNA from many different companies there is a lot of room for error. In this case error could be defined as someone being falsely accused, which is not something that should be taken lightly. There are also a lot of mistakes that can happen with DNA testing and lab technicians. Since these technicians wouldn't be technically employed by the government, there is even more room for error. Now in the time and era that we are in, those falsely accused may face deep reputational damage because of social media.

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I will use this source to provide an example of when law enforcement has used commercial data bases to solve a crime in the past. It also dives into some risks that come along with law enforcement being able to do this.

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This source goes into how it is unethical for the government to use commercial databases to solve crimes. It states that users may not be aware that these data bases are giving their information up. Informed consent is a big issue that people bring up with this controversy. When people submit their DNA, they are doing it with the purpose of finding out their ancestry. They don't expect the government to use it. It also talks about how law enforcement doesn't only use it to find the person who submitted their DNA guilty of a crime. They use a person's DNA to prove their family member is guilty. This has even less consent involved because the family member did not consent to this.

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I made a survey asking three questions for people to answer. The questions were:

1. Have you ever taken an Ancestry DNA test, such as 23andMe or GEDmatch?

2. Do you believe that it is ethical for law enforcement to be able to use DNA gathered through commercial databases to help solve crimes?

3. Did you know that law enforcement could do this before this question?

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Petrie-Flom Center - The blog of the Petrie-Flom Center at Harvard Law School

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Ethical Concerns of DNA Databases used for Crime Control - Petrie-Flom Center

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Though the opportunities for crime-solving by utilizing DNA database searches may be vast, new technologies and innovative uses of them do not occur in a vacuum. Instead, novel uses of technology demand consideration of a vast number of ethical issues, and mandate careful interrogation of the potential impact of DNA databases on crime control.

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I will use this source to establish context about what certain terms mean. I will also use this to show the common arguments for why people believe it is unethical.

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Is It Ethical to Use Genealogy Data to Solve Crimes?

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. Author manuscript; available in PMC: 2019 Sep 4.

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This source talks about how, law enforcement being able to use commercial DNA genetic databases is beneficial to criminal justice. It can lead to a lack of privacy for citizens. It states: "the lack of privacy protections could undermine public trust, open the door for misuse, and ultimately harm citizens’ autonomy." This is an issue. We live in a country that values individual freedoms and this goes against that.

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Scholars discuss the regulatory landscape surrounding genetic data privacy.

Nearly all newborns in the United States automatically provide their genetic information at birth through mandatory health screening programs. With a prick of the needle, hospital staff collect blood samples from the newborn's heel and test for a range of genetic and metabolic disorders. After the screening is complete, the residual blood samples often remain in storage for years, typically for quality assurance and research purposes.

Hospitals' retention of newborn blood samples has created a rich trove of genetic information for secondary uses. For example, researchers can tap into this national repository of genetic materials to conduct medical and pathology studies.

In addition, law enforcement officials have shown increasing interest in using genetic information provided through the newborn screening programs for criminal investigations. For example, in 2022, a lawsuit filed in New Jersey revealed that local police had subpoenaed a newborn blood sample to investigate a cold case from 1996. And in 2018, California police used newborn screening data to solve the Golden State Killer case.

Regulating law enforcement's use of genetic data has proved challenging. In 1994, the DNA Identification Act directed the Federal Bureau of Investigations (FBI) to establish a national system for coordinating forensic DNA databases across states. In response to this directive, the FBI launched the Combined DNA Index System (CODIS), which serves as a central repository for states and agencies to collect, maintain, and share legally obtained genetic profiles. Moreover, the system allows participating forensic laboratories to compare DNA profiles and match crime scene evidence with past cases. But CODIS does not allow states to collect or store the genetic profiles of individuals with no prior involvement in the criminal justice process.

In contrast to CODIS, few restrictions exist on law enforcement's ability to use DNA profiles obtained from consumer genealogical databases, such as 23andMe, in criminal investigations. Although CODIS contains only noncoding regions of a person's DNA-which provide limited information about physical traits-commercial genealogical profiles analyze a person's entire genome. By accessing commercial genealogical data, law enforcement can determine an individual's gender, race, disease predispositions, and a range of other identifying details.

In response to the rise in law enforcement use of commercial genetic profiles, Maryland and Montana became the first two states to limit law enforcement officials' use of forensic genealogy. The Montana law requires government investigators to obtain a search warrant before accessing any consumer DNA databases unless users waive their right to privacy.

Although allowing law enforcement officials access to consumer genetic databases can aid criminal investigations, advocates for enhanced regulatory oversight warn that the lack of privacy protections could undermine public trust, open the door for misuse, and ultimately harm citizens' autonomy.

In this week's Saturday Seminar, scholars survey the regulatory landscape of genetic data privacy.

In an article in the Texas Law Review, Natalie Ram of the University of Maryland Carey School of Law argues against law enforcement access to newborn genetic screening samples and related data. The recent rise in law enforcement officials' use of such sensitive resources is concerning, Ram opines. She contends that permitting law enforcement to access newborn screening data without clear guidelines undermines ethical principles, risks eroding public trust, and may violate constitutional protections. Ram urges states to adopt clear, consistent policies prohibiting law enforcement access to this data to uphold the privacy rights of newborns and preserve the integrity-and vital public health benefits-of newborn genetic screening programs.

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Navigating Genetic Data Privacy and Law Enforcement Access | The Regulatory Review

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Scholars discuss the regulatory landscape surrounding genetic data privacy.

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This source adds further context into what is wrong with the government having access to commercial genetic databases. I will use this with the quote that I provided in my description.

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This source goes really into depth about DNA and what roles DNA plays in crime scenes and just in general. It talks about the racial disparities that occur in the system. Ethnic minorities are more likely to be arrested. DNA databases often have disproportionate numbers from minorities and therefore this impacts their privacy and rights may be more at risk. Mentally ill and children are also at risk for having their DNA stored unethically. They are often arrested for minor crimes and their DNA gets stored. This source also makes an argument of if this is a good use of police resources. They claim that although, yes a lot of crimes get solved because of DNA databases, this is not a foolproof way of solving crimes. It also costs a lot of money to collect and store DNA indefinitely.

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This source has a lot of good background information on DNA in general. Not just the ethical standards. I will use this source to give the importance of DNA in crime scenes.

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Using DNA to trace people who are suspected of committing a crime has been a major advance in policing. When DNA profiling is used wisely it can help to convict people who have committed serious crimes or exonerate people who are innocent. However, concerns arise when individuals’ tissue samples, computerized DNA profiles and personal data are stored indefinitely on a DNA database. There are concerns that this information could be used in ways that threaten people’s individual privacy and rights and that of their families.

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This article goes into detail about what the police actually have access to. It states that contrary to popular belief the police doesn't just have access to a wide range of DNA. They have to submit a DNA profile of a criminal or suspect and then from there they will get matches from who is in the DNA databases. People claim that there is no doubt that police could solve more crimes with unlimited access to DNA databases but people deserve privacy. There are a few commercial DNA databases that do not allow law enforcement access to DNA unless court ordered. There are a lot of questions that come with this, as it is all fairly new and people aren't sure how to handle it. But there is no doubt that these commercial DNA databases have helped solve a lot of cold cases, that otherwise wouldn't have been solved.

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I will use this source to show kind of the opposing side along with some background context.

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DNA Databases Are Boon to Police But Menace to Privacy, Critics Say • Stateline

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Nearly two years after the arrest of the suspected Golden State Killer revitalized DNA forensics, some state lawmakers around the country are pushing to stop or restrict police searches of genetic code databases. Other lawmakers, meanwhile, want to make it even easier for police to use the technique, known as investigative genetic genealogy, to catch […]