*Natalie Murphy
I. Introduction
In 2021, Maryland passed the world’s first law regulating the use of forensic genetic genealogy (FGG).[1] Although this law constitutes a massive step towards safeguarding public privacy, broader criticisms of forensic science call attention to additional areas to monitor regarding Maryland’s FGG usage.[2] Maryland’s FGG policies leave open questions regarding Fourth Amendment protections against unreasonable government search and seizure, the Fifth Amendment Takings Clause, and underlying issues surrounding forensic DNA science.
II. How does FGG work?
FGG uses consumer genetic databases to identify suspects in criminal cases based on their relatives.[3] Forensic DNA practices begin when law enforcement officers collect biological samples at a crime scene.[4] Next, laboratory technicians attempt to create a genetic profile by extracting DNA from the samples. If successful, the process results in a single genetic profile unique to one individual—the suspect.[5] Law enforcement employs the FGG process when they cannot identify the genetic profile using a known subject sample or law enforcement databases.[6] In jurisdictions that allow the practice, forensic technicians re-test the sample and attempt to use consumer genetic databases to identify individuals who share genetic commonalities with the suspect.[7] Consumer databases, like GEDmatch or FamilyTree, allow users to upload their DNA data to learn more about their health or ancestry.[8] If investigators find even a partial match on one of these sites, they can use data ranging from census records to social media to construct a family tree spanning generations and ultimately identify a suspect.[9]
III. How does FGG raise privacy concerns?
FGG raises privacy concerns due to the sensitive nature of DNA, the investigation of non-suspects, and the racial inequities that arise in practice.[10] Genetic data is sensitive by nature because it can expose present and future health concerns, familial relations, relatives, physical traits, and ancestral origins.[11] Senator Charles Sydnor calls the FGG process a “genetic dragnet” for scrutinizing the sensitive information of non-suspect relatives.[12] Using law enforcement databases alone to identify suspects based on partial matches is already a highly controversial practice barred in Maryland.[13] Sydnor’s concerns regarding FGG are heightened given the more granular and, thus, more revealing data used to create profiles for consumer genetic databases compared to law enforcement databases.[14]
Many users of consumer genetic databases also view law enforcement access to their genetic profiles without consent as overreach, particularly when it breaches the database’s terms of service.[15] Law enforcement has amplified overreach concerns by using deceptive practices to secure DNA in several cases.[16] Black and African-American users of genetic databases face additional problems. For example, one study on familial DNA testing revealed that although the rate of false identification was low, African-American matches had twice the probability of being targeted for further investigation compared to other users.[17] Other scholars note that for Black and African-American descendants of slavery, access to ancestral lineage data is particularly sensitive as “a piece to a puzzle that was stripped away by force” due to chattel slavery in the early United States.[18] Finally, FGG resources are disproportionately directed at solving crimes perpetrated against white women.[19] Maryland’s recent legislation implements use limitations responsive to general privacy concerns but is silent on specific concerns based on race and gender.
IV. How does Maryland’s Forensic Genealogy statute address privacy concerns?
Maryland’s law is the first to provide regulation and privacy protections to consumer genetic database users who may face law enforcement investigation.[20] FGG has not faced significant scrutiny at the federal level, and state courts have taken a “hands-off approach” to regulating law enforcement use of such databases.[21] The major components of the new Maryland law relating to privacy are as follows:
- Law enforcement requires judicial authorization before conducting FGG;[22]
- Judicial authorization for FGG can only be granted as a last resort for investigating violent crimes or threats to public safety;[23]
- FGG is only permitted on databases that provide explicit notice and seek affirmative consent from users that law enforcement may use their data to investigate crimes;[24]
- Law enforcement must obtain informed consent to collect DNA from non-suspects (like family members) unless it compromises the investigation;[25]
- Law enforcement must compile an annual public report on FGG practices;[26]
- Defendants seeking postconviction relief are permitted access to FGG processes;[27]
- Maryland imposes consequences for FGG statute violations such as unauthorized disclosure of information or failure to destroy data and allows payment to people whose genetic data was wrongfully disclosed or collected; and[28]
- Labs conducting testing for FGG must be licensed, and the Office of Health Care Quality must train technicians.[29]
Through these safeguards, Maryland’s statute significantly limits the use of FGG, better protects the privacy of non-suspects, and ensures ex ante supervision of the process at every step.[30] Unlike similar legislation recently passed in Montana, Maryland’s statute does not require a warrant to search consumer genetic databases.[31]
V. Ongoing Areas to Monitor
Because FGG is a recent development, many aspects of the Maryland law have yet to be tested in court. Many concerns about FGG continue to be relevant in Maryland today.
A. Fourth Amendment Concerns
Privacy groups and legal scholars are engaged in an ongoing debate over Fourth Amendment implications for FGG.[32] Under the third-party doctrine, courts have traditionally held that a person can have no reasonable expectation of privacy or Fourth Amendment protection for information shared with third parties.[33] The Supreme Court narrowed this view in Carpenter v. United States, forbidding law enforcement from accessing a plaintiff’s cell phone data without a warrant.[34] Although the plaintiff had already shared the data with his phone carrier, the Court considered the seizure of data an unreasonable search given that cell phones are almost “a feature of human anatomy” and provide an “all-encompassing record” with ease.[35] Carpenter creates a colorable argument that DNA qualifies for the same exception to the third-party doctrine, given that DNA is an actual feature of human anatomy and provides present and future information about its owner.[36]
An alternate viewpoint suggests that the cell phone databases in Carpenter are distinguishable from consumer genetic DNA databases because DNA database users affirmatively consent to give their information to third parties.[37] However, genetic data poses a potential “loophole” to the third-party doctrine.[38] The shared nature of DNA among biological family members means that an individual’s privacy may be violated by a relative without ever consenting to a database’s terms of service.[39]
B. Fifth Amendment Takings Clause Questions
FGG practices also potentially conflict with the Fifth Amendment takings clause, which states, “. . . nor shall private property be taken for public use, without just compensation.”[40] One scholar argues that “law enforcement access to DNA profiles on consumer genetics databases constitutes a physical taking of private genetic property . . . for the purpose of promoting the general welfare.”[41] Individuals who upload their information to forensic genetic genealogy databases are not compensated monetarily, and in fact pay for the service.[42]
Further, “the lack of compensation scheme” for appropriating consumer genetic profiles constitutes a Takings Clause violation.[43] Takings are not limited to real property and could theoretically encompass genetic profiles,[44] and many consumer DNA databases regard genetic profiles as user property.[45] Courts traditionally hold that “interference with the right to exclude others is close to a per se taking of property.”[46] Thus, a court could potentially find a Fifth Amendment Takings Clause violation where law enforcement officers access genetic profiles in violation of a database’s terms of service.[47]
Maryland’s new law offers a limited avenue for compensation to individuals whose data was wrongfully disclosed, collected, or maintained.[48] However, whether the statute meets the standard for constitutional compensation under the Fifth Amendment Takings Clause remains an open question.
C. Carceral Abolitionist Critiques of Forensics
Forensics scholar Maneka Sinha (Sinha) recently published a comprehensive criticism of forensic science as a discipline frequently used “to legitimize prosecutions rather than advance justice.”[49] Sinha’s examination indicates several weak areas in Maryland’s recent FGG legislation. She cautions that FGG is only as accurate as the DNA profiling underlying it, which is an active field in need of consistent monitoring.[50] DNA profiling increasingly relies on algorithms protected by trade secrets through a method known as “probabilistic genotyping.”[51] While probabilistic genotyping is especially useful for poor quality or complicated samples, several such algorithms have not been peer-reviewed, are only validated by their creators, and are protected from view by trade secrecy laws.[52] The lack of independent validation and level of secrecy surrounding many probabilistic genotyping programs raises serious concern regarding how genotyping is actually conducted and if it is accurate.[53]
Additionally, Sinha draws attention to the inherent complications of finding a reliable laboratory.[54] Forensic labs are often operated by police departments, and utilizing labs independent from law enforcement is one popular recommendation for dissolving conflicts of interest.[55] Still, Sinha suggests “the inherited cultural alignment between law enforcement and the forensic system” means that even independent labs carry a culture of carceral bias and failure to meet scientific rigor.[56] She further notes the reputation of for-profit labs for “pursuing analyses beyond the reliable limits of the software system and for lack of transparency around how their systems operate.”[57] Independent labs thus represent an incomplete solution due to their cultural relationship to law enforcement and purported unreliability. Maryland’s law states that an advisory committee shall establish “best practices” for labs performing the single nucleotide polymorphism (SNP) analysis necessary for FGG[58] and does not legislate who should operate such labs.[59] The advisory committee has not yet issued a report, and whether they will take criticisms, such as Sinha’s, into account in their laboratory recommendations remains to be seen.
VI. CONCLUSION
Although Maryland’s law represents a novel advancement for FGG legislation, it does not eliminate Fourth and Fifth Amendment concerns or respond to fundamental critiques of forensics as a discipline. Sinha even indicates that without truly interrogating the role of forensics “as an engine for control and criminalization of marginalized communities,” reforms like Maryland’s embed rather than challenge forensics as a carceral weapon.[60] However, the mere existence of legislation on a novel forensic method like FGG indicates a groundswell of much-needed attention towards the modern role of forensic techniques in criminal law. Attentive minds coupled with an understanding of forensics as a carceral tool and creative analyses like Sinha’s are exactly the right ingredients for truly re-imagining forensics in a way that protects the rights and of all Marylanders.
*Natalie Murphy is a second-year J.D. candidate at the University of Baltimore Law School. She is currently interning at the Forensics Division of the Maryland Office of the Public Defender and intends to be a public defender in Baltimore City after graduating. She is fascinated by the relationship between science and the law and thinks reading science fiction is crucial for helping everyone (but especially lawyers) imagine a better world.
Image credit: Tomasz Steifer, Wikimedia Commons
[1] Natalie Ram et al., Regulating Forensic Genetic Genealogy: Maryland’s New Law Provides a Model for Others, 373 Sci. Mag., 1444, 1444 (2021).
[2] See infra Part V.
[3] Ram et al., supra note 1
[4] George M. Dery III, Can a Distant Relative Allow the Government to Access Your DNA?, 10 Hastings Sci. Tech. L. J., 103, 139 (2019) (noting common biological samples collected from crime scenes include blood, semen, or sweat, all of which contain DNA); Sarah A. Bates, Deoxyribonucleic Acid (DNA), Nat. Hum. Genome Rsch. Inst. (Aug. 28, 2022), https://www.genome.gov/genetics-glossary/Deoxyribonucleic-Acid (explaining that DNA carries unique genetic information telling an individual’s cells how to grow, reproduce, and function). Law enforcement can collect DNA for analysis at several points in an investigation, including from buccal swabs taken upon or following arrest. Maryland v. King, 569 U.S. 435, 464 (2013). Since FGG is used when the individual associated with a genetic profile is unknown, samples that undergo FGG usually originate from crime scenes. Genevieve Carter, The Genetic Panopticon: Genetic Genealogy Searches and the 4th Amendment,18 Nw. J. Tech. Intell. Prop., 311, 321 (2021).
[5] See Sarah Chu & Susan Friedman, Maryland Just Enacted a Historic Law Preventing the Misuse of Genetic Information, Innocence Project (Jun. 6, 2021), https://innocenceproject.org/maryland-passes-forensic-genetic-genealogy-law-dna/; Aja Nunn, Far From Batman and Robin: Why Investigative Genetic Genealogy Cannot be Law Enforcement’s Trust Sidekick, 365 Howard L. J., 143, 152 (2021); Rich Press, DNA Mixtures: A Forensic Science Explainer, Nat’l. Inst. Stands. & Tech. (Apr. 3, 2019), https://www.nist.gov/feature-stories/dna-mixtures-forensic-science-explainer. Biological samples collected at crime scenes can contain DNA from multiple individuals, meaning forensic analysts must properly isolate each person’s individual DNA before proceedings with the investigation. Id.
[6] The Combined DNA Index System (CODIS) contains approximately 20 million DNA profiles from suspects and convicted offenders and is typically the first place law enforcement officials attempt to locate a genetic profile match. See The FBI’s Combined DNA Index (CODIS) Hits Major Milestone, Fed. Bureau Inv. Nat. Press Off. (May 21, 2021), (https://www.fbi.gov/news/press-releases/press-releases/the-fbis-combined-dna-index-system-codis-hits-major-milestone).
[7] See sources cited supra note 3; see sources cited infra note 13 (explaining forensic technicians conduct short tandem repeat (STR) analysis to collect data for comparison on CODIS, whereas genetic genealogy websites require the more granular data available from single nucleotide polymorphism (SNP) analyses). Technicians must thus conduct a secondary SNP analysis to existing samples before uploading to genetic genealogy websites. Id..
[8] Natalie Jones, Maryland House Bill Seeks to Prohibit Using Familial DNA Databases to Solve Crime, Balt. Sun (Feb. 20, 2019), https://www.baltimoresun.com/politics/bs-md-maryland-house-bill-dna-databases-0221-story.html.
[9] Id.
[10] Ram et al., supra note 1 (citing Maryland v. King, 569 U.S. 435, 464 (2013) (summarizing the controversy surrounding sensitivity of DNA information); Jones, supra note 8 (featuring several critiques of FGG concerned about the privacy of non-suspects); Jacob Stern & Sarah Zhang, The Victims Left Behind by Genetic Genealogy, Atlantic (Jan. 27, 2021) https://www.theatlantic.com/science/archive/2021/01/genetic-genealogy-race/616171/ (finding a disproportionate number of cases solved with FGG feature white women even though the average murder victim is a Black man).
[11] Ram et al., supra note 1 (citing Maryland v. King, 569 U.S. 435, 464 (2013)).
[12] Jones, supra note 8.
[13] Samuel D. Hodge Jr., Current Controversies in the Use of DNA in Forensic Investigations, 48 U. Balt. L. Rev., 39, 50 (2018) (explaining familial DNA matching is only allowed in 12 states); Natalie Ram, Fortuity and Forensic Familial Identification, 63 Stan. L. Rev., 751, 754–55 (2011).
[14] Chu & Friedman, note 5 (citing What Are Single Nucleotide Polymorphisms (SNPs)?, Nat. Lib. Med., https://medlineplus.gov/genetics/understanding/genomicresearch/snp/ (last visited Aug. 29); What is STR analysis?, Nat. Inst. Just. (Mar. 2, 2011), https://nij.ojp.gov/topics/articles/what-str-analysis).
[15] Ram et al., supra note 1 (describing the controversy surrounding consumer genetic database GEDmatch after they violated their own terms of service by allowing a law enforcement officer to search the database for matches in an assault case).
[16] Id.; see, e.g., Paige St. John, The Untold Story of How the Golden State Killer Was Found: A Covert Operation and Private DNA, L.A. Times (Dec. 8, 2020), https://www.latimes.com/california/story/2020-12-08/man-in-the-window.
[17] Hodge, supra note 13, at 52, (citing Rori V. Rohlfes et al., The Influence of Relatives on the Efficiency and Error Rate of Familial Searching, 9 Plos One (2013)). The issue is likely compounded by the overrepresentation of Black individuals in law enforcement DNA databases. See Maneka Sinha, Radically Reimagining Forensic Evidence, 73 Al. L. Rev., 880, 893 (2022).
[18] Nunn, supra note 5, at 145.
[19] Stern & Zhang, supra note 10.
[20] Ram et al., supra note 1.
[21] Department of Justice Announces Interim Policy on Emerging Method to Generate Leads for Unsolved Violent Crimes, U.S. DOJ: Off. Pub. Aff’s (Sept. 24, 2019), https://www.justice.gov/opa/pr/department-justice-announces-interim-policy-emerging-method-generate-leads-unsolved-violent (explaining the Department of Justice issued a preliminary report on FGG practices at the federal level, and a final policy was forthcoming. No final policy has been released as of Aug. 2022); Ram et al., supra note 1,(finding state courts have taken a “hands-off” approach to regulating FGG).
[22] Md. Code Ann., Crim. Proc. § 17-102 (b) (West 2022).
[23] § 17-102 (b)(1), 17-102 (b) (3–4).
[24] § 17-102 (d).
[25] §17-102 (f).
[26] §17-105.
[27] §17-103.
[28] §17-102 (i–k).
[29] §17-104.
[30] Ram et al., supra note 1, at 1445.
[31] Virginia Hughes, Two New Laws Restrict Police Use of DNA Search Method, N.Y. Times (May 31, 2021), https://www.nytimes.com/2021/05/31/science/dna-police-laws.html (comparing Maryland and Montana’s FGG laws).
[32] See generally Megan Molteni, Should Cops Use Family Tree Forensics? Maryland Isn’t So Sure, Wired(Feb. 6, 2019), https://www.wired.com/story/maryland-considers-banning-genetic-genealogy-forensics/ (describing FGG pushback surrounding Fourth Amendment rights from Maryland privacy groups); Jones, supra note 7 (quoting Maryland Senator Charles Sydnor’s assertion of Fourth Amendment violations in FGG procedures); Dery, supra note 3 (analyzing Fourth Amendment implications of law enforcement’s FGG search for the Golden State Killer); Carter, supra note 4 (considering Fourth amendment concerns related to genetic genealogy searches).
[33] See Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (“this court consistently has held that a person has no legitimate expectation of privacy in information that he voluntarily turns over to third parties.”).
[34] Carpenter v U.S., 138 S. Ct. 2206, 2221–23 (2018).
[35] Id. at 2211–18.
[36] Ram, supra note 1.
[37] Carter, supra note 32, at 331.
[38] Id. at 332.
[39] Id.
[40] U.S. Const. amend. V, § 5.
[41] Nunn, supra note 5, at 160 (arguing consumer genetic profiles constitute intangible personal property according to both traditional definitions of personal property and the terms of service employed by consumer genetic databases).
[42] Geoff Williams, How Much it Costs to Research Your Family Tree, U.S. News & World Report (Jan. 26, 2018, 4:04 PM), https://money.usnews.com/money/personal-finance/family-finance/articles/how-much-it-costs-to-research-your-family-tree.
[43] Id.
[44] Horne v. Dep’t Agric, 576 U.S. 351, 352 (2015) (“the Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property.”); Nunn, supra note 4, at 161 (“consumer genetics profiles gain their value from the information they possess…[and] an individual’s genetic profile can be valuable for multiple reasons. The profiles carry sensitive health information, information on one’s ancestral background, and can provide a means of connecting with unknown relatives.”).
[45] Nunn, supra note 5, at 161.
[46] Id. at 162.
[47] Id. at 162–63.
[48] § 17-102(k).
[49] Sinha, supra note 17, at 956.
[50] Sinha, supra note 17, at 931—932.
[51] Id. at 931; see also Lauren Kirchner, Where Traditional DNA Testing Fails, Algorithms Take Over, ProPublica (Nov. 4, 2016), https://www.propublica.org/article/where-traditional-dna-testing-fails-algorithms-take-over (explaining the rising use of algorithms for probabilistic genotyping for complicated biological samples); Michelle Taylor, Bill Questions Proprietary Algorithms Used in Probabilistic Genotyping Software, Forensic Magazine (Jul. 27, 2020), https://www.forensicmag.com/566619-Bill-Questions-Proprietary-Algorithms-Used-in-Probabilistic-Genotyping-Software/ (describing the protection of probabilistic genotyping algorithms under trade secrecy laws).
[52] Sinha, supra note 17, at 931–32.
[53] Id.
[54] Sinha, supra note 17, at 943–946.
[55] Id. at 943.
[56] Id. at 887, 994.
[57] Id. at 945.
[58] Md. Code Ann., Crim. Proc. § 17-104(c) (West 2022).
[59] See id.
[60] Sinha, supra note 17, at 955.
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