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?
In addition, the framers of the Constitution were concerned about "corruption of blood." They believed that you should be punished for what you do, rather than for the sins of your fathers. But the analogy isn't perfect: In the case of familial searches, relatives are being investigated, not punished, and the ones identified through YSTR testing are likely to be guilty, not innocent.
The strongest legal argument against familial searches is that they're not what Congress intended when it set up the database. In the leading case upholding the collection of DNA samples, U.S. v. Kincade, the U.S. Court of Appeals for the 9th Circuit stressed in 2004 that the government had two good reasons for requiring people on probation to provide a DNA sample: the diminished expectation of privacy that people have once they're on probation, and the state's strong interest in ensuring that they reform rather than becoming recidivists and commit new crimes in the future. Familial searches can't be justified by either rationale. The family members of offenders have done nothing to reduce their expectation of privacy, and the state is investigating new crimes, not stopping repeat offenders.
If the legal implications were murky, the political implications were clear. Given the dramatic racial disparities of family searches, African-American families might be four times as likely to be put under genetic surveillance as white families. For this reason, I predicted that a national decision to begin familial searches without explicit congressional approval might cause a political firestorm that would imperil political support for the entire CODIS system. As custodians of the national and state databases, I concluded with a melodramatic flourish, the officials at the symposium might want to proceed cautiously rather than risk being accused of violating a public trust.
Several months later, I called Tom Callaghan for an update. He sounded relieved. The criticisms of familial searches at the symposium, especially the predictions of a political firestorm, had dampened enthusiasm for implementing them at a national level. The scientific working group advising the FBI in July, he said, provided scientific recommendations about partial matches but was silent about whether CODIS should adopt familial searches. Individual states, however, remain free to proceed with familial searches on their own.
The Grim Sleeper Slips the DNA Dragnet. But the Rest of Us Might Not.
Between 1985 and 2007, a California serial killer shot and strangled at least 11 victims, most of them African-American women. Newspapers called him the "Grim Sleeper" because 13 years elapsed between two of the murders. Starting in 2004, DNA analysis linked several of the crime scenes to one another, but a search of the CODIS database failed to identify the killer.
Soon after the FBI symposium I attended, California decided to forge ahead with familial searching on its own, partly in the hope of identifying the Grim Sleeper. According to the Los Angeles Times, Jerry Brown, the state's attorney general, overruled his legal adviser's concerns that judges might strike down familial searches on constitutional grounds and decided to authorize them in April. The policy that California adopted limits the use of the searches to cases with "critical public safety implications," in which no search of the offender's crime scene DNA has produced a direct hit or partial match. There are a few safeguards for privacy, most notably the requirement that any DNA evidence be subjected to YSTR testing before a name is released to law enforcement to confirm a probable link between the sample at the crime scene and the target of the familial search.
Since California adopted its new familial searching policy, the attorney general's office has authorized two searches that failed to produce a YSTR match between the potential-offender sample and the crime scene sample. Most prominently, a familial search did not identify the "Grim Sleeper." State officials downplayed the failure, emphasizing that they always estimated the chance of finding the serial killer this way as something like 1 in 10.
At the moment, California is limiting its familial searches to convicted offenders. Still, the searches may provoke lawsuits challenging the expansion of the state database to include arrestees—just as Tom Callaghan feared. And courts could well be troubled by the open-ended idea that once you're arrested and cleared, the state can subject you and future generations of your family members to permanent genetic surveillance.
Indeed, that's precisely why the European Court of Human Rights last December ruled that the United Kingdom's decision to store the DNA of arrestees violated European privacy guarantees. The court was especially concerned about the possibilities of familial searches of the DNA of arrestees. The court was also troubled that "the processing of DNA profiles allows the authorities to assess the likely ethnic origin of the donor."
U.S. courts may be similarly skeptical of the decision to include arrestees in state and federal databases. When Congress, in 2006, authorized the FBI to place the DNA profiles of federal arrestees in the CODIS database, the FBI further required that state databases allow arrestees to expunge their DNA from state databases if they are subsequently cleared or not charged. Thirty-eight states have laws with explicit expungement procedures (although they are not always easy to use). Nevertheless, the Minnesota Court of Appeals in 2006 struck down a state law authorizing the collection of DNA from arrestees for violating the constitutional requirement that searches may not be conducted without a warrant. The court emphasized that under the state law it was striking down, no one had to consider whether the DNA was in any way related to the charged crime or any other criminal activity. On the other hand, the Virginia Court of Appeals reached the opposite conclusion, in 2007, holding that taking a DNA sample on arrest is no different than taking a fingerprint.
How the Supreme Court would rule on familial searches of arrestees is an open question. Two years ago, in the foreword to a book about the technology of justice, Justice Stephen Breyer wrote, "DNA identification may raise privacy concerns. Suppose a check of a convict DNA database reveals a near miss, thereby implicating a relative who has no record of conviction and was consequently not included in the bank. What kind of legal rules should apply?"
Stephen Mercer, a defense attorney who convinced the Maryland legislature to ban familial searches, predicts that courts will be skeptical of the expansion of DNA databases to include arrestees. As genetic research—led by private companies such as 23andMe—reveals increasing ties between genes and predisposition to violence and other antisocial behavior, there may be growing discomfort with the idea of giving the government access to DNA, which could lead to people being surveilled, detained, or suspected for their behavioral tendencies rather than their actions. Especially given the risk of racial bias.
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.