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.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.
In fact, no state has specifically authorized familial search through legislation. Only Maryland has addressed familial search by statute--and it banned the practice.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: dna, familial searches, partial match, privacy
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Actually they are only fact if they are enough to convict. if the match is less than 75% Identicle they can't use it to get a supena. (I know I spelled it wrong so sue me.)
[ link to this | view in chronology ]
Re:
Huh? Facts can't be copyrighted, but that has nothing whatsoever to do with this story. Reach much?
[ link to this | view in chronology ]
Re: Re:
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?
[ link to this | view in chronology ]
Re: Re: Re:
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.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
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. 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.
[ link to this | view in chronology ]
Re: Really?
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.
[ link to this | view in chronology ]
Re: Re: Really?
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.
[ link to this | view in chronology ]
Re: Re: Re: Really?
"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".
[ link to this | view in chronology ]
Re: Re: Really?
Hopefuly This works?
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re: wow what a headline?
[ link to this | view in chronology ]
Re: Re: wow what a headline?
[ link to this | view in chronology ]
Re: Re: Re: wow what a headline?
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.
[ link to this | view in chronology ]
Re: Re: wow what a headline?
[ link to this | view in chronology ]
Re: Recruit DNA
[ link to this | view in chronology ]
Re: Re: Re: wow what a headline?
[ link to this | view in chronology ]
Re: Re: Re: wow what a headline?
[ link to this | view in chronology ]
Re: Re: Re: Re: wow what a headline?
[ link to this | view in chronology ]
Re: wow what a headline?
[ link to this | view in chronology ]
Re: wow what a headline?
[ link to this | view in chronology ]
Re: wow what a headline?
[ link to this | view in chronology ]
Re: wow what a headline?
From the article:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
They still won't.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Oppression
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.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re:
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)
[ link to this | view in chronology ]
Not as if we have any real expectation of privacy, anyway.
[ link to this | view in chronology ]
We will need a court case
[ link to this | view in chronology ]
Re: We will need a court case
[ link to this | view in chronology ]
Re: Re: We will need a court case
[ link to this | view in chronology ]
Re: Re: We will need a court case
http://www.computerweekly.com/blogs/the-data-trust-blog/2009/02/debunking-a-myth-if-you-have -n.html
[ link to this | view in chronology ]
Re: We will need a court case
Saves the initial bloodletting, and the work it will take to clear the backlog.
[ link to this | view in chronology ]
Re: Re: We will need a court case
[ link to this | view in chronology ]
Re: Re: Re: We will need a court case
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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Ok
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.
[ link to this | view in chronology ]
Re: Ok
[ link to this | view in chronology ]
Re: Re: Ok
[ link to this | view in chronology ]
Re: Re: Ok
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
I wouldn't recommend that you do that (or anything else to tick them off) once they have your DNA or it just might happen to wind up at the wrong place at the wrong time.
[ link to this | view in chronology ]
Twins
[ link to this | view in chronology ]
Re: Twins
[ link to this | view in chronology ]
Re: Re: Twins
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Comparison with the EU
[ link to this | view in chronology ]
Re: Comparison with the EU
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.)
[ link to this | view in chronology ]
DNA
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?
[ link to this | view in chronology ]
Re: DNA
That has scary implications indeed.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Bummer
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!".
[ link to this | view in chronology ]
Re: Bummer
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?
[ link to this | view in chronology ]
How is this different . . .
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
[ link to this | view in chronology ]
If you are innocent you have everything to fear.
[ link to this | view in chronology ]
This is a good Thing
[ link to this | view in chronology ]
Re: This is a good Thing
So why are you posting with a fake name? What kind of illegal stuff are you up to?
[ link to this | view in chronology ]
Re: Re: This is a good Thing
[ link to this | view in chronology ]
Re: Re: Re: This is a good Thing
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]