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The Golden State Killer Investigation Raises Genetic Privacy Concerns In the Criminal Law Context

Posted By admin 2018-04-29 00:52:43

New technologies are radically advancing our freedoms, but they are also enabling unparalleled invasions of privacy. This week’s arrest of the Golden State Killer suspect, Joseph DeAngelo, has rightfully set off alarms among some scientists and ethicists worried that consumer DNA may be widely accessed by law enforcement. Detectives in California used a public genealogy database to identify the suspect, raising serious concerns about genetic privacy. As a criminal defense attorney practicing in Los Angeles, I am especially concerned about how law enforcement uses consumer DNA to bypass Fourth Amendment protections.

Investigators retained DNA evidence from the Golden State Killer’s crime scenes, but they were not able to match it to any of the convicts’ and arrestees’ DNA profiles stored in the FBI’s Combined DNA Index System. As a workaround, police decided to take advantage of the fact the millions of Americans have had their genetic information tested by various commercial companies, often as part of their personal genealogical research.

The police reportedly drew on the open-source GEDmatch service, which does not test DNA but allows users searching for relatives to them to upload the results of such tests from other companies. Apparently, a relative of DeAngelo had submitted test results to GEDmatch. This familial genetic link led the police to suspect DeAngelo. The police directly connected DeAngelo to the murders and rapes by matching old crime scene DNA to his obtained from some items he had recently discarded in public.

This is not the first case where ancestry DNA testing has been used to identify a suspect. Another case illustrates how the use of such DNA evidence can lead to false accusations. In 2015, after DNA evidence exonerated an innocent suspect in a 1998 murder, police in Idaho Falls combined records for close matches to DNA at the crime scene, landing on a man named Michael Usry who matched 34 of 35 genetic markers on the Y-chromosome that belonged to the killer. Police wound up arresting Usry’s son, whose name was only cleared after 33 days when another DNA test found to not match his DNA. The privacy repercussions, including false accusations and even wrongful convictions, are troubling.

Such methods of criminal investigation are bound to only become more prevalent as the sizes of companies’ DNA databases grow. Some laws protect against abuses of genetic privacy, but none of those prevent law enforcement from combing through public DNA databases. Many courts have ruled, citing cases involving photographs and fingerprints, that we do not have a reasonable expectation of privacy under the Fourth Amendment in DNA that we leave in public.

Still, the case brings forefront several important issues in genetic privacy. As Tiffany Li, a tech lawyer and resident fellow at the Yale Information Society Project, tweeted in response to the Golden State Killer news, “Reminder: When you give your DNA data to companies like or 23andMe, you give up not only your own genetic privacy, but that of your entire family.” And while law enforcement may not be able to get its hands on your Ancestry data easily, for example, certain types of insurers could, as could hackers. While some members of the public have expressed that they are fine with giving up their family DNA data to catch a serial killer, this rationale has a slippery slope effect, and can justify almost any invasion of privacy, including facial recognition and iPhone backdoors.

Ultimately, police use of non-criminal genetics databases illustrates the need for standards for genealogical searches in relation to crimes. In the Idaho Falls case, for example, if investigators had used a DNA test that looked at a smaller number of genetic markers, which some crime labs do, Usry might have wound up matching the DNA even though he was innocent. Guidelines for when police may turn to genealogical searches and the quality of DNA evidence they use could help protect innocent people from false accusations and even wrongful convictions.

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California Supreme Court Upholds a Troubling Arrestee DNA Collection Law

Posted By admin 2018-04-23 01:24:28

As a criminal defense attorney who practices in Los Angeles, I have successfully defended countless arrestees to stop criminal charges from being laid and, when charges exist, to secure an acquittal on all counts. The process to remove these innocent people’s DNA from California’s database is arduous and slow due to complex state rules for expungement. The California Supreme Court recently upheld the state law mandating DNA collection from arrestees. In doing so, the Court failed to properly consider the significant privacy costs this law has, especially for indigents and racial minorities.

People v. Buza involved a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. California law permits police to collect DNA from anyone arrested on suspicion of a felony. No procedural safeguards, such as a warrant or a judicial finding that there was sufficient cause for the arrest, exist. California stores arrestees’ DNA samples indefinitely, and allows DNA profiles to be searched continuously by local, state, and federal law enforcement agencies.

A lower court held that this law violates the privacy and search and seizure protections guaranteed under the California constitution. Like the U.S. Supreme Court’s 2013 opinion in Maryland v. King, the majority of the California Supreme Court in Buza accepted the government’s argument that a DNA sample is no different from a fingerprint and that the government’s interest in “identifying” an arrestee outweighs the arrestee’s right to privacy. The California Supreme Court’s decision allows the troubling DNA collection law to stand.

The California constitution enshrines the right to privacy, unlike the U.S. constitution. The Court’s reasons should have fleshed out how the unique constitutional status of the right to privacy in California impacts collection of arrestees’ DNA, rather than simply adopting the U.S. Supreme Court’s line of reasoning in King.

In my view, the California constitution bars collecting arrestees’ DNA. The constitutional right to privacy includes protecting our rights to privacy of our personal information, as well as our right to self-determination over our bodies. The majority opinion in Buza focuses on the somewhat minimal impact a cheek swab to obtain DNA has on bodily privacy, which misses the point. The state’s retention, processing, and ability to continually search individuals’ DNA samples is an incredibly serious invasion of an arrestee’s privacy. This is because, as Justice Cuellar wrote in his dissenting opinion:

A DNA sample stored by the state contains an arrestee’s entire genetic code – information that has the capacity to reveal the individual’s race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, pre-disposition to certain traits, and even the propensity to engage in violent or criminal behavior.

In Buza, the defendant pleaded guilty to committing arson. The majority emphasized that its ruling is narrow and limited to defendants whose arrests were supported by probable cause. The Court wrote that someone else arrested in the future absent probable cause could have a valid as-applied challenge to the adequacy of the DNA Act’s expungement procedures, in addition to other remedies for unlawful arrest. Unfortunately, many innocent arrestees in California are indigent and cannot afford an attorney to help them apply to remove their DNA from the state database. The Court’s holding problematically ignores that most arrestees lack the resources and legal knowledge to mount such challenges, so their DNA samples will remain in the state system indefinitely.

DNA collection severely undermines people’s right to privacy on a massive scale. The state law authorizing DNA collection impacts tens of thousands of innocent Californians each year-nearly a third of 200,000-plus people arrested each year are never charged with or convicted of a felony, according to state records.

The privacy costs of a state DNA database that is designed to hold innocent people’s DNA profiles especially troubling for racial minorities. Felony arrests of African Americans disproportionately result in no charges or dropped charges, which means that innocent African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining. In my view, the law’s massive impact on privacy should have proved fatal under the California constitution.

Lawmakers should respond by reforming arrestee DNA collection law to at least provide for mandatory expungement in innocent cases.

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