The use of genetics in criminal investigation continues to become both more commonplace and more accurate as researchers continue to reap the benefits of the pivotal human genome project that made many of these advancements possible. The use of genetic forensics has not only been a reliable tool in closing thousands of cold cases, it has also been instrumental in the exoneration of more than 300 wrongly convicted persons in the U.S. alone. While the methods and producers are far from perfect, when handled properly, DNA evidence can be a powerful tool for good in the hands of ethical and competent law enforcement.
Overall, commercial use of DNA testing has already skyrocketed into a $99 million dollar industry with some projections putting growth to more than $220 million by 2024. This industry includes everything from confirming ethnic lineage, to developing “genome browsers” on smartphones for cancer diagnosis, to even genetic testing claiming to help people maximize fitness and athletic performance.
With this much growth surrounding something so personal and integral to human identity, the bigger questions of privacy and protection of such sensitive data is an important one.
Premier commercial genealogy testing site like Ancestry.com and 23andMe both report an increase in law enforcement requesting user-provided genetic info for criminal investigations. Both sites report that the requests are few and far between with both sites not considered complying with the vast majority of requests. To date, Ancestry.com has honored only one of a reported total of 5 separate requests for DNA from law enforcement (albeit with much resistance), while 23andMe reports honoring zero requests for data from a total of 7 separate request from law enforcement for DNA data since they began their business.
While these companies have an obvious financial incentive to protect user data as much as possible, law enforcement agencies are increasing their use of this kind of data and it’s only a matter of time before they become even more aggressive with these companies as a means of ensuring public safety; hence why the Department of Justice’s most recent endeavor to develop more comprehensive polices and procedures for the use of this kind of data is so important.
With the explicit desire to balance public safety and protection of citizens privacy, these interim procedures include limitations on law enforcement on the use of these sites unless a “substantial and ongoing threat” is present. And even then, they will have to ensure all other in-house testing procedures are used and exhausted before making any requests to these sites. All samples obtained from these sites must be handled confidentially and be destroyed afterwards. Of course a warrant is necessary and they can only use sites that explicitly report to users the possibility of law enforcement requesting data from them.
While these are only preliminary directives with a November 1st date scheduled for the release of finalized procedures, it seems quite clear that the DOJ wants to avoid using these sites, if at all possible. It looks like they are prioritizing protecting privacy and in my opinion, that’s a good thing.