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2 states pass laws to limit police use of genealogy data

| Jun 28, 2021 | Challenging DNA Evidence

Did you know that taking a genetic genealogy test could result in your DNA being uploaded to a national, searchable database that police could use to accuse you of a crime?

Worse, it’s not just you who is at risk. The entry of your DNA into such a database exposes people in your family to the search and seizure of their DNA. Information about their genetic profiles can be extrapolated from your own, and that could put them at risk for arrest, even if the process and results are questionable.

There are currently no federal laws guaranteeing the privacy of people who take genetic genealogy tests, but two states – Maryland and Montana – have recently passed laws to limit law enforcement’s access to genetic profiles.

The Maryland law requires a warrant before police can upload crime scene DNA to a genealogy database in an effort to find relatives of the suspect. It also limits the use of genetic genealogy databases to serious crimes, including murder and sexual assault. Finally, investigators are limited to databases that maintain strict privacy and user consent policies.

The law in Montana is somewhat narrower. It, too, requires a search warrant before a genealogy search can begin, although a warrant is not required if the consumer has waived the right to privacy.

Genealogy databases used in ‘Golden State Killer’ case

In 2018, the state of California revealed that it had used crime scene DNA and genetic genealogy databases to build out a family tree for the so-called “Golden State Killer.” Ultimately, they believe they were able to match relatives and deduce the name of the killer.

That case gave hope to many people in law enforcement, who saw the possibilities for other cold cases. Even at the time however, privacy advocates began to worry that police should not have easy access to people’s genetic information.

Genetic information contains sensitive health information and demanding someone’s DNA outright simply on suspicion they had committed a crime would likely be considered an unreasonable search or seizure, which is prohibited by the Fourth Amendment. If it would be, wouldn’t allowing police to search genealogy databases be an unreasonable search or seizure?

The new Maryland law requires police to get written consent before collecting DNA from third parties who are not suspected of crimes, unless a judge approves the collection without consent.

Moreover, the police can’t use DNA to seek out information about a person’s psychological traits or disposition to disease. And, all genetic records must be deleted from databases at the end of the investigation.

It will take time to see how the new laws work. In the meantime, other states are still allowing investigators to search genetic genealogy databases.

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