Genetic Surveillance for All
What if the FBI put the family of everyone who has ever been convicted or arrested into a giant DNA database?
As I watched a mock report of a cold hit flash across the screen, a jarring statistic appeared: The FBI ranks the probability of its matches by using racial categories. In other words, if there is a perfect match of 23 alleles at all 13 genetic locations (the super-sized American version of the British 10 peaks), and an African-American with the targeted profile goes on trial, the jury might be told that those alleles are found in, say, one out of 14 quadrillion African-Americans while being only slightly more (or less) common in Caucasians or southeastern Hispanics. The point of the statistic, according to the FBI, is to reassure jurors who think the police may not have correctly identified a suspect whose race is hard to determine visually: Rather than taking the government's word for it, the jurors can see for themselves that the perpetrator must be the suspect whom the government has charged. But the decision to record the probabilities of each match in racial terms gives a creepy whiff of eugenics to the CODIS database. And this might become all the more unsettling as the racial disparities in the database increase.
The first political controversy about the national database focused not on race but on partial matches. These occur when, in an initial search of the database, investigators don't look for perfect matches at each of the 23 genetic locations, but a routine search allows for a little imprecision at each location because of so many different laboratories and agents. In 10 years of operation, the FBI is aware of only seven partial matches using CODIS. But they led to a dilemma. With a partial match in hand, the FBI is confident that the offender in the database isn't the source of the DNA at the crime scene. But investigators might be inclined to release the innocent person's name to law enforcement so that his family members can be investigated as possible exact matches.
Sometimes this works in the best way possible: to exonerate the innocent and convict the guilty. The most famous example of this led to the release of Daryl Hunt, a North Carolina man who, as 60 Minutes has documented, spent 19 years behind bars for a brutal rape and murder of a newspaper editor. Nine years after DNA testing first cleared him of rape, which happened 10 years after his initial conviction, the state ran DNA from the crime scene through its state database. The result was a near match to a convicted felon named Anthony Brown, indicating that Hunt could not have committed the murder, but a relative of Brown's might have. FBI rules at the time allowed states to share the results of partial matches within their own borders, and further investigation revealed that Brown had a brother named Willard in a nearby county. Investigators tracked down Willard Brown, offered him a cigarette, and, as soon as the interview ended, tested the DNA on it. It matched the DNA at the crime scene perfectly. Based on the partial match, Willard Brown confessed and Daryl Hunt was eventually freed.
In 2005, Mitch Morrissey asked the FBI to authorize states to share the results of partial matches across state lines. He had discovered partial matches between the genetic evidence left by three rapists in Colorado and the profiles of convicted offenders in Oregon, Arizona, and California. Morrissey wanted Oregon to test its sample to determine whether its convicted offender shared a Y chromosome with the material found at Morrissey's crime scene. This technique is called YSTR analysis, and it's a way of narrowing down a long list of suspects with similar DNA to determine whether they are, in fact, related. Close male relatives share a Y chromosome: My two sons and I, for example, have the same Y chromosome as my father and my father's brother. In a YSTR test, the police analyze the Y chromosome of the convicted offender in the database who didn't commit the crime and then compare it with the Y chromosome on the genetic evidence from the crime scene. If the DNA is different, it means the brother, or son, of the offender in the database didn't commit the crime. If the Y chromosome is the same, he might well have.
Faced with Morrissey's request, Tom Callaghan told Morrissey that the national database procedures prohibited states from sharing information about people who weren't suspected of committing crimes. Releasing the names of offenders except in cases of a confirmed match, he told Morrissey, might be viewed by courts as an expansion of the database beyond its original purpose: to solve crimes by surveilling convicted criminals. Morrissey, who had used Callaghan as an expert witness, was surprised by Callaghan's caution. He decided to go over Callaghan's head and eventually spoke to Robert Mueller, the director of the FBI. "He said, 'We have a problem?' I said, 'Yup.' He said, 'Give me 10 days and we'll get it fixed.' " In 2006, on Mueller's orders, the FBI established an interim policy allowing states to establish their own policies and procedures to follow up on partial matches that emerged from standard database searches. Armed with the new policy, Oregon and Arizona agreed to cooperate with Morrissey, but YSTR testing, which compared the Y chromosomes, revealed that neither of the profiles in the state databases was related to the Colorado rapists.
Morrissey wasn't satisfied with his victory on partial matches. Because they occur unexpectedly and infrequently, they're unlikely to produce lots of investigative leads. Accordingly, Morrissey began to pressure Callaghan and the FBI to change federal policy to allow not only partial matches but also familial searches. The main difference between the two techniques is that partial matches emerge inadvertently from a routine search of the database while family searches represent a second, deliberate trolling of the database for close biological relatives after the first search has failed to produce a perfect match.
The prospect of familial searches alarmed Callaghan. He feared that they might imperil the entire CODIS system since courts might view the searches as an even more troubling example of "CODIS creep"—an attempt by the government to use samples collected for one purpose for a very different purpose. Moreover, even though federal law requires the FBI to inform Congress every time it intends to change the genetic loci in the national database, proponents of familial searches wanted the FBI to act on its own. In Callaghan's view, the database was an invaluable resource that generates more than thousands of leads a month. Given the fact that familial searching has a success rate of only about 10 percent in the United Kingdom, he reasoned, why jeopardize solving hundreds if not thousands of cases in the future to adopt a controversial and fringe technique that might solve just a handful of cases at most? So when he was asked to organize an FBI symposium on genetic privacy and familial searching, he jumped at the chance to invite critics to challenge a proposal he viewed as ill-advised.
What's the Law on Expansive DNA Searches?
Last February, I got an e-mail from Callaghan, whom I'd never met, asking me to speak about the constitutionality of genetic privacy and familial searching at an FBI symposium on the topic. And so, in March, I showed up at the Sheraton Crystal City in Arlington, Va., where the FBI had assembled the legal advisers and administrators of all 50 state DNA databases.
The most enthusiastic boosters of familial searches spoke first. Mitch Morrissey explained that a pilot familial searching program in his city, using specially designed software, had identified three cases in which there was a 90 percent chance of a brother or a father-son link to the sample left at the crime scene and someone in the local database. Follow-up YSTR testing suggested a match in chromosome types, although, for different reasons, none of the leads actually led to convictions. Morrissey said he was trying to convince Colorado authorities to begin familial searching and criticized the FBI for resisting. "I liken it to having a Porsche and driving it like a Pinto," he said.
Another enthusiastic proponent, Dr. Frederick Bieber of Harvard's Brigham and Women's Hospital, spoke in language that eerily echoed the eugenic family studies of the early 20th century. "Does crime cluster in families?" he asked. "We know that it does." Nearly half of prison inmates in federal and state institutions had a family member who had been incarcerated, he announced. "If crime didn't occur in clusters of families, all this would be an academic conversation."
Then it was the critics' turn. Barry Scheck of the Innocence Project said that he could imagine supporting familial searches if Congress authorized and carefully regulated them with safeguards such as the requirement of a judicial warrant and corroborating evidence. But, he argued, "I don't think there can be any doubt that when the U.S. Congress passed the DNA identification Act of 1994, it did not think for a nanosecond that it was authorizing a database that was going to be used for purposes of familial searches." Everyone who testified before Congress expected the database to be used for "law enforcement purposes"—by which they meant finding past offenders who could be linked to crime scenes. Several witnesses noted that the National Research Council of the National Academies, which provide scientific advice to the federal government, had warned in 1992 about the dangers of familial searches, citing concerns about "privacy and fairness" for "relatives who have committed no crime." The council concluded, "Such uses should be prevented both by limitations on the software for search and by statutory guarantees of privacy."
When my turn came, I said that the constitutional and legal arguments against familial searches weren't clear and that courts might come down on both sides of the question. The main constitutional objections are that these searches violate the long-established principle that the Fourth Amendment prohibits searches—of a house or a database—for general law enforcement purposes without individualized suspicion of wrongdoing. And in the case of a familial search, the police already know that no one in the database committed the crime. On the other hand, if a familial search is backed up by a YSTR test, it seems less troubling from a privacy point of view because this means the name of a family member will be released for investigation only when there's a high probability that the person is connected to the crime scene. Courts have often said that searches are reasonable when they're highly effective at identifying the guilty and don't invade the privacy of the innocent.
Jeffrey Rosen is the legal affairs editor of the New Republic and a law professor at George Washington University Law School. His latest book is The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age.
Illustration by Robert Neubecker.