23&you – Warrantless Searches of Familial DNA

DNA testing companies, like 23&me, Ancestry.com, and MyHeritage, have gained popularity. In 2017, 12 million people tested their genealogy, doubling the number of people tested from the previous year. An estimated 1 in 25 American adults have had their DNA tested. Indeed, there are DNA testing companies for animals, such as Wisdom panel, which is a canine DNA testing site.

Recently, a genealogy service was used to catch the Golden State Killer, a serial killer who has been linked to more than fifty rapes and twelve murders from 1976 to 1986. The case has been cold for decades, but interest in the case was revitalized with Michelle McNamara’s book entitled I’ll Be Gone in the Dark. The California police had the Golden State Killer’s DNA in a preserved sample and uploaded his DNA sample to GEDmatch. GEDmatch is a website that provides genealogical analysis (such as discovering unknown relatives) using DNA profiles generated by larger commercial DNA testing companies. The Golden State Killer’s DNA was matched to the Killer’s distant relative, allowing the police to narrow down the suspect to Joseph James DeAngelo, a 72-year-old former police officer.*

The Golden State Killer is not the first case where law enforcement has used a genealogy site to narrow down or find a suspect. One of the first cases solved using familial DNA searches was the mutilation and murder of Lynette White in England in 1988. The White murder was a notorious unsolved case until the early 2000s when the police found a new DNA sample, which they matched to a 14-year-old boy whose DNA was on file. The 14-year-old boy led to his uncle, who confessed to the murder.*

Since this is a new technology, it is unclear how and what type of Fourth Amendment protections the courts will provide to DNA data obtained through commercial genealogy testing. The courts may apply the third-party rule, which allows police to search—without a warrant—information given to a third party because a person does not have a reasonable expectation of privacy in information he voluntarily turns over to a third party. The courts have applied this doctrine to allow warrantless searches of bank records, U.S. v. Miller, 425 U.S. 435 (1976), phone numbers dialed, Smith v. Maryland, 442 U.S. 735 (1979), and email addresses, U.S. v. Forrester, 512 F.3d 500 (9th Cir. 2008). Courts might rule that, like historical cell site information from a suspect’s cellphone, genetic information provides an “intimate window into a person’s personal life.” But this is unlikely since the courts allow law enforcement to obtain DNA samples from suspects and analyze the sample by running it through criminal databases. Maryland v. King, 569 U.S. 435 (2013).

The American Civil Liberties Union stated in an op-ed piece that uploading a suspect’s DNA profile on a public site, like GEDmatch, infringes on the suspect’s privacy right because the penalty for his crimes does not include releasing information about his entire genetic makeup.

Before the courts start hearing cases on familial DNA searches, Maryland and the District of Columbia have banned familial DNA searches. Md. Code Ann. Pub. Safety § 2-506; D.C. Code § 22-4151. Other states, like California, Virginia, and Colorado, regulate the police’s use of DNA searches.

Companies have also released policies on providing data to law enforcement. 23andme announced in a Privacy Statement that the company will not provide information to law enforcement unless required by a court order, subpoena, or search warrant.

Police are likely going to keep pursuing suspects through familial DNA searches since, overtime, it will become more fruitful. Currently, 60% of white Americans can be identified through genetic testing services, whether or not they have themselves gotten the genetic test, and researchers predict that within two to three years, 90% of white Americans can be identified through genetic testing services.

*Information for this paragraph of the post was obtained from two sources: Avi Selk, The ingenious and ‘dystopian’ DNA technique police used to hunt the ‘Golden State Killer’ suspect, Wash. Post (Apr. 28, 2018), https://www.washingtonpost.com/news/true-crime/wp/2018/04/27/golden-state-killer-dna-website-gedmatch-was-used-to-identify-joseph-deangelo-as-suspect-police-say/?noredirect=on&utm_term=.c3d45ee09344; Gina Kolata & Heather Murphy, The Golden State Killer Is Tracked Through a Thicket of DNA, and Experts Shudder, N.Y. Times (Apr. 27, 2018), https://www.nytimes.com/2018/04/27/health/dna-privacy-golden-state-killer-genealogy.html.