In the absence of both clear legislative authority and an established methodology for familial searching, the move by some states to rush forward with low-stringency searches is at best premature, if not irresponsible. The failures and complications of such a headstrong approach may not rise to the level of public discourse; in general, it is only the sensationalized success stories of forensic DNA that we tend to hear about, not the dead-end investigations, the wasted resources, or even the errors.
Just as the United Kingdom has enacted the most aggressive policies on DNA expansion, it has also introduced a number of new, controversial investigational techniques using DNA, including familial searching (see boxes 4.1, 4.2, and 4.4). Familial searching is currently used routinely in the United Kingdom for high-profile investigations. As of January 2008, 148 cases in the United Kingdom had been submitted for analysis using familial searching techniques. Seventy-nine of those cases were active at that time, and 15 of them had been cleared (i.e., someone is arrested or charged) or resolved (no convictions) through familial searching. Of those 15, 9 had resulted in convictions, 4 in no conviction, and 2 were still going through the criminal justice system in 2009.46 On average, the cases investigated so far in the United Kingdom using familial searching techniques have generated 1,500 to 3,000 partial matches,47 which are then narrowed using geographical parameters and Y-STR sampling.
Proponents of familial searching in the United Kingdom boast a 90 percent success rate for those cases where it has been employed.48 In addition, they argue that it saves money: Richard Pinchin of the U.K. Forensic Science Service claims that between $.5 and $2 million are saved for each murder investigation where familial searching is employed, simply because of a reduction in investigation time.49 Pinchin also argues that law enforcement should feel obligated to use DNA in any way it can to solve a crime, given the time and resources it has spent collecting DNA from crime scenes and establishing and building the national DNA database.
Unlike the United States, the United Kingdom has developed some procedural guidelines for familial searching. According to Tony Lake, chief constable of Lincolnshire Police and the former chair of the National DNA Database Strategy Board, familial searching is considered only for serious crimes where there has been no match with the database. Familial searching can occur only with approval by the custodian of the National DNA Database (NDNAD) and is approved as “proportionate and ethical” only if it is restricted to the most serious cases and if intrusion into the privacy of individuals is minimized. For each case, a series of search parameters is established, such as level of genetic similarity, allele rarity, age, ethnic appearance, surname, and geographical area. The United Kingdom routinely uses a number of techniques to narrow long lists of partial matches, including Y-STR analysis, mitochondrial DNA analysis, and, finally, taking swabs from relatives. “Swabbing teams” are trained to find a person’s DNA in the event someone refuses to give a sample and to handle cases where a potential revelation occurs for a family member who, for example, finds out that he or she is adopted.
So although the United Kingdom has moved forward more quickly with familial searching than has the United States, some recognition, at least, has been given to public concerns about the way in which these searches are conducted and how they might be followed up. Even so, the U.K. practice is not without criticism. Hugh Whittall, director of the Nuffield Council on Bioethics, has commented that the U.K. system still lacks a clear and transparent framework for determining the circumstances under which and how familial searching should be used.50 According to Robin Williams and Paul Johnson,
Discussions between ACPO [the Association of Chief Police Officers], the Home Office, the Information Commissioner, and representatives from the Human Genetics Commission, have resulted in an agreement about the circumstances under which such [familial] searches will be carried out and their results integrated into existing investigative procedures. However, the agreement is operationally sensitive and has not been publicly disseminated.51
A public consultation initiated by the Nuffield Council indicates that the public remains seriously concerned about whether familial searching constitutes an unjustifiable intrusion into personal privacy. The Nuffield Council has recommended that detailed and independent research be conducted on the operational usefulness and practical consequences of familial searching before it is more widely deployed.52
Civil Liberties and Familial Searching
From a civil liberties perspective, familial searching is problematic at several levels. First, if it is practiced routinely, it effectively expands the database designed to identify known offenders to include millions of innocent people—those who happen to be relatives of convicted offenders. These individuals have never been suspected of any wrongdoing, yet they are being placed under lifelong genetic surveillance by way of their relation to individuals who are in the database.
George Washington University law professor Jeffrey Rosen has noted that familial searching is inconsistent with a basic pillar of American political thought: “The idea of holding people responsible for who they are rather than what they’ve done could challenge deep American principles of privacy and equality.”53 The United States has a troubling history of profiling individuals on the basis of their biology, and familial searching, in this sense, plays into this history. Rosen has also argued that familial searching is antithetical to our founding fathers’ rejection of the “corruption of blood,” which under the common law of England stripped the descendants of anyone convicted of a felony of their right to inherit the felon’s estate or title. Section 3 of Article III of the U.S. Constitution states, “The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.”54
In his carefully crafted memorandum on familial searching to California attorney general Jerry Brown, Deputy Attorney General Michael Chamberlain identifies four possible consequences for individuals who are in the database and are identified as part of a familial search: (1) they may be contacted by detectives; (2) they may not even have relatives who could have committed the crime; (3) they may have relatives who are completely innocent; and (4) they may have relatives who are not themselves in the database, but who will be under suspicion nonetheless. He sums up: “The Databank Program, designed as an investigative scalpel, could be used instead as an indiscriminate investigative fishing net.”55
This fundamental shift in the intent and purpose of the database—from one of investigation of known offenders to its use as an intelligence tool to investigate individuals outside the database without probable cause—may conflict with some state constitutional laws. For example, the right of privacy guaranteed by the California Constitution has been interpreted by the California Supreme Court to prevent the government (and business interests) “from misusing information gathered for one purpose in order to serve another purpose.”56
The use of the database to target innocent people also appears to be inconsistent with the very protections that have been built into most, if not all, state database statutes. First, although some states have moved to include categories of innocent people—for example, arrestees—in their databases, most states have in fact rejected these proposals on privacy grounds. In addition, states are required as a condition of participating in CODIS to allow for expungement of DNA records in situations where a conviction is overturned or a case is dismissed, although this usually requires that the falsely convicted individual initiate the process. It seems puzzling to say, on the one hand, that innocent people have the right to have their DNA removed from the system, but, on the other hand, that it is okay to mine the DNA of other innocent people by way of their relatives.
What balances are there (or should there be) against the unfettered use of familial searching? Let us suppose that a familial search brings police to the family members of someone in the national DNA data bank. The person in the data bank
—the “genetic informant”—may not have committed any crime. Increasingly, U.S. states are including arrestees; England and Wales include all detained, charged, or arrested individuals over 10 years old. Now this individual is being questioned by police to divulge information about family members who are not yet suspected of any crime. Even if the individual is in prison and considered to have a lower expectation of privacy, he or she nonetheless has no obligation to report on personal matters of members of his or her family.
There are also privacy considerations of the relatives of the individual who is in the national database. Other than the fact that they are relatives of an individual whose DNA shares some limited homology with the crime-scene DNA, there is no suspicion against them for the crime in question. Their privacy must be intact until there is reasonable suspicion. Can investigators prompt them to give a DNA sample? Should investigators be permitted to obtain a DNA sample surreptitiously from family members?
Bieber and colleagues note that through familial searching “genetic surveillance would shift from the individual to the family.”57 Individualized suspicion expands to group suspicion. Courts have been resistant to give police warrants for suspicion based on group properties. The fact that a witness saw a man with a black hat commit a crime does not enable police to invade the privacy of all men with black hats. Courts will not issue warrants for such a group dragnet. It is also unlikely that courts will issue warrants for DNA searches of all family members of a low- or moderate-stringency match in a national database. But what if there were only a handful of individuals identified in a smaller database search? And what if only two of those had relatives who were of a plausible age range for the crime in question? And suppose that one of those relatives has a criminal record? Would that be enough suspicion to yield a warrant for that person’s DNA?
In a sense, familial searching creates a backdoor way for law enforcement to investigate people without their knowledge or consent, let alone a search warrant. The call to use Y-STR analysis and other techniques that require returning to the stored biological samples is especially troubling in this regard. These analyses can reveal sensitive information about individuals and their families—information that they themselves might not want to know. Such testing may run contrary to state genetic privacy laws. For example, Section 79-1 of the New York Civil Rights Law prohibits the performance of any genetic test (including DNA profile analysis) without the “written informed consent” of the individual and forbids any other unauthorized testing or dissemination or disclosure of test results.58
There are many other unanswered procedural questions associated with the follow-up by criminal justice to partial match searches. As discussed earlier, low-stringency searches can generate thousands of partial matches, and these will continue to grow as the databases grow. A partial match indicates only that there is some possibility that a relative of that person could have DNA that fully matches the crime-scene evidence; the probability that the partial match is useful depends, in part, both on the number of alleles that are found to match and on their relative rarity in the population. Even if the list can be winnowed by using a variety of the techniques discussed earlier, the police might be tempted to knock on the doors of tens if not hundreds of individuals, disrupting the private lives of many innocent people unnecessarily. These shotgun-style investigations result in personal and social harm in the form of distress and stigma. Another danger is that in following up with potential relatives or their family members, law enforcement may overstate the significance of the familial match and make it seem as though they “have the DNA.” This could lead some individuals to wrongfully confess to a crime they did not commit. In addition, if a partial match is not sufficient evidence to compel a relative to provide a DNA sample via a court order, what happens if those individuals refuse to provide a sample? What is the fate of the samples collected? Will they be destroyed if that person is excluded from the crime? Will there be a temptation on the part of law enforcement to follow people around to get their DNA surreptitiously when a court warrant cannot be obtained because there is insufficient evidence of probable cause?
Family searches may also reveal family secrets. Low-stringency database searches can bring nonsuspects into police inquiries that demand that they reveal intimate and personal information that falls well beyond establishing their identity. It is possible that some of this information could be sensitive and involve paternity, incest, immigration eligibility, human immunodeficiency virus (HIV) status, or fertility. Familial searches can also reveal unknown genetic relationships or an absence of a presumed genetic relationship. For example, a partially matching individual might name someone as a parent or child who turns out not to be genetically related to him or her, or a family member who does not know that he or she has a relative in prison could be contacted by the police and asked to provide a DNA sample. Sonia Suter, a professor at the George Washington School of Law, suggests that the risks to the family associated with these revealed secrets depend on why the information was hidden and how it is disclosed and to whom.59
Private information about the family, once it gets into police hands, can change family dynamics. A low-stringency search can create a large pool of suspects from the family. Erica Haimes puts an anthropological perspective on such searches:
Realizing that one is part of such a large pool of potential relatives could change an individual’s or family’s self-perception. Individuals might gain or lose social capital through that membership and the collectivity might experience an enhanced self-consciousness of themselves as a group. They might also, for the first time, define themselves as being “related” to each other.60
Frederick Bieber uses a license-plate analogy to explain why police seek to justify law enforcement’s investigation of partial matches. “Not investigating such leads would be like getting a partial license number in a getaway car and saying ‘well, you didn’t get the whole plate so we’re not going to investigate the crime.’” 61 But the license-plate analogy is problematic. When you buy a car, you agree to have a license plate and to make that license plate visible. The license plate protects you, as well as others. If your car is stolen, the license plate can be used to locate it. If you drive recklessly, someone can report you to the police. By all means, the requirement to have a license plate on your car interferes with your privacy, but this is a reasonable condition for owning a car that we all agree to and are all aware of. The same, it seems, cannot be said of our DNA. Following up a partial DNA match means potentially learning a lot of personal information about a person. It is not a requirement—at least not so far—that we turn over our DNA as a condition of living in this society.
Racial and Ethnic Disparities
Daniel Grimm questions familial searches on grounds of privacy and racial disparities. In regard to the latter, certain minority groups with larger-than-average families will be disproportionately affected by familial searches. More innocent people in large families will become suspects in familial searches. They will be subjected to harassment, surveillance, and DNA sample collection and possibly even permanent storage of the family’s DNA. On the basis of the demographics of Hispanic populations in the United States, Grimm concludes, “A partial match between a crime scene sample and an index sample from a Hispanic defendant will, on average, lead investigators to more biological relatives than if the sample had been from another group.”62 Grimm’s conclusions were already anticipated by Bieber and colleagues in a 2006 Science article. Although the authors argue that by using a combination of cold matches and familial searches, more crimes will be solved, they also conclude that familial searching potentially will exacerbate disparities among racial and ethnic groups that exist in the criminal justice system.63 In resonance with concerns about racial disparity associated with familial searching, Barry Scheck, cofounder of the Innocence Project, noted, “The genetic surveillance of innocents would be along racial lines. . . . I think it is a troublesome idea.”64
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p; In practice, further honing in the lens of the criminal justice system on particular populations means that racial minorities who have committed no crime are far more likely to be targeted than white people. It also means that white criminals are more likely to get away with crimes than blacks or Hispanics. These gross imbalances, combined with the increasing use of familial searches, may have the deeper impact of reiterating the faulty and highly dangerous notion that criminal propensity is genetic and racialized.
We have seen how familial searching uses statistical methods to generate suspects in a crime where there is no prime suspect. Under this method forensic DNA has been transformed from a precise tool for identification into a blunt instrument for using DNA similarities to troll for family members of a person who happens to be in a DNA data bank—even while there are no independent grounds of suspicion of those family members. Anyone who has his or her DNA profiled in a state DNA data bank, whether or not that person has been convicted of a crime, brings his or her entire family unit under DNA surveillance. Although police, by tradition and law, have had the right to generate suspects to a crime, there has also been a legal tradition of protecting the privacy and rights of suspicionless individuals. The courts and state legislatures have yet to set boundaries or prohibitions on trolling data banks for suspects on the basis of the fact that the crime-scene DNA is statistically more likely than a random DNA profile to be from a member of the extended family of the so-called near match. Currently, familial searching is carried out without special protections for juveniles, people who voluntarily donate their DNA, surreptitious DNA profiling, and the threats that some families may face by becoming identified as “crime families” because they are more frequently brought up in so-called close matches.
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