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Guilt By Association: Using Familial DNA to Finger Criminals
The Washington Post has a good article about how DNA from a suspect's family members can be used to find out if he or she may have committed a crime.
The BTK murderer in Kansas was identified using DNA from a pap smear that his daughter had when she was in college. The police checked her DNA against DNA collected from the crime scenes and it was a close match. With this evidence, the police got a warrant requiring the suspect to submit to DNA testing and it matched perfectly. The murderer is now serving ten consecutive life sentences.
As the article points out, such familial DNA searching causes unease among civil libertarians. To wit:
"If practiced routinely, we would be subjecting hundreds of thousands of innocent people who happen to be relatives of individuals in the FBI database to lifelong genetic surveillance," said Tania Simoncelli, science adviser to the American Civil Liberties Union....
The Supreme Court has repeatedly held that authorities may not conduct searches for general law enforcement purposes without suspicion about individuals. Although convicted criminals have a diminished expectation of privacy, searching a database for unknown relatives might violate that principle, said Jeffrey Rosen, a George Washington University law professor.
"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," he said. "Although the legal issues aren't clear, the moral ones are vexing." ...
Stanford University law professor Henry T. Greely estimates that at least 40 percent of the FBI database is African American, though they make up only 13 percent of the U.S. population. That is because in an average year, more than 40 percent of people convicted of felonies in the United States are African American, he said.
If the national database were used for familial searching, he said, and assuming that on average each person whose profile in the database has five first-degree relatives, authorities would be "putting under surveillance" roughly a third of the African American population, compared with about 7.5 percent of the European American population, he said.
"I don't think anybody's going to be falsely convicted," he said. "It's the time, hassle and indignity of being interviewed by the police. How much is that worth? How much does that cost a person? I don't know, but it's not zero."
Do you have a right to withhold your DNA from government databases? And is the risk of an extra bit of hassling of the innocent worth finding and convicting criminals? In an earlier column I predicted:
Kinship DNA searching is thought to be different from using fingerprints because fingerprinting can generally incriminate only one person (though similar fingerprint patterns can sometimes point to a relative as a criminal perpetrator). DNA kinship searching necessarily implicates both guilty and innocent blood relatives of the person whose profile is in the databases. As Harvard researchers Frederick R. Bieber and David Lazer note, "Genetic surveillance would thus shift from the individual to the family."
DNA kinship searching will not solve every crime because in order for it to work, the DNA profile of a close relative must already be on file. Interestingly, it turns out that according to a 1999 Bureau of Justice survey, 46 percent of prison inmates had at least one sibling, parent or child who had been incarcerated at some point. This sad fact increases the chances that DNA kinship searching will turn up a suspect. Of course, if you happen to be the good kid in a family of crooks you will be understandably annoyed by a police "request" for your DNA, but, on the other hand, it would be silly for the cops to ignore clues from kinship DNA searches.
One suggestion for avoiding DNA kinship searches which casts suspicion on guilty and innocent family members alike would simply be to require that every American have his or her DNA profile in a database. The idea is that law enforcement officials could simply check whatever DNA samples they obtain from a crime scene with the directory for a perfect match. The FBI already has a computerized database of 250 million sets of fingerprints representing 74 million people. I predict that since collecting DNA is no more invasive than fingerprinting, it seems very likely that a similarly sized national DNA database will be created in the near future.
Whole Post article here. How concerned should we be by the growth of government DNA databases?
|4.21.08 @ 11:22AM|#
IANAL but -
Do you have a right to withhold your DNA from government
databases?
Yes. We possess a reasonable expectation of privacy.
And is the risk of an extra bit of hassling of the innocent
worth finding and convicting criminals?
Not only no, but Fuck No!
The Democratic Republican|4.21.08 @ 11:22AM|#
I don't say things like this often, but here it is:
If you aren't outraged by this, you're not a libertarian.
|4.21.08 @ 11:27AM|#
The key is intent, Callaghan said. The bureau is "not deliberately trolling the database looking for relatives," he said.
Yet.
|4.21.08 @ 11:27AM|#
Great, now I have to find a source of clean DNA and rig up a
fake vein in my arm.
DNA from a pap smear that his daughter had when she was in
college
I just a had a vision of that Indiana Jones warehouse, but it's
full of cervix scrapings. How long do they keep those things? I
understand they might need to compare to baseline, but that's a lot
of 'gina swabs in storage.
Guy Montag|4.21.08 @ 11:31AM|#
Um, I happen to work in a field where my occasional employer,
the federal government, requires a DNA sample from me to be on
file. The flight surgeon just ordered the test about 45 min. before
Mr. Bailey posted this article [cue conspiracy music!] and I can go
to the clinic whenever I like to have it done.
I do know the purpose for DoD to have service member's DNA on file.
I also know that the scope of use could be expanded and/or
abused.
Now, for those of you who are not in the same position as me, I
would discourage you from surrendering DNA samples to government
entities for any reason.
moi|4.21.08 @ 11:37AM|#
Considering how many people are now being exonerated by DNA testing, it would actually seem more helpful in preventing miscarriages of justice than it would cost in lost privacy.
|4.21.08 @ 11:40AM|#
What if the police go to the relative, fully explain that they have a related suspect, and ask for a DNA sample, which the relative willingly gives. Is that legitimate?
Chris Hanson|4.21.08 @ 11:45AM|#
DNA testing may send some of those Child Molesters in Texas to
prison. The 4th amendment ends at a 14-year-old girl's private
parts.
The child molesters will become the Plural Wives of some 300 pound
Crips and my tax dollars won't have to pay to take care of more
inbred children with very expensive genetic diseases.
It's a win-win situation.
The Democratic Republican|4.21.08 @ 11:49AM|#
moi: You're assuming that the authorities would allow the data to be used to exonerate the innocent. There is DNA evidence laying around to free God knows how many people, but its use has been obstructed (see Balko's posts on Mississippi).
|4.21.08 @ 11:50AM|#
I feel that's legitimate, insofar as it's similar to investigating a crime by asking about a suspect's whereabouts or whether he or she owns items similar to those used in crimes. However, it does make me wonder how often relatives would end up helping convict suspects they intended to clear.
The Democratic Republican|4.21.08 @ 11:51AM|#
Chris: No, the 4th Amendment doesn't end ANYWHERE. If you want
to protect children, do it within the 4th Amendment, not outside of
it.
Besides, personal DNA is a part of you, as an individual. It is
subject to the moral and legal requirements of the natural right of
privacy, not of any particular American amendment.
The Democratic Republican|4.21.08 @ 11:54AM|#
Dragonfly: I don't care about utilitarian uses. What, exactly, gives a regime the authority to demand that I give the most personally identifiable data about myself just so that they can have it on file...you know, just in case?
moi|4.21.08 @ 11:56AM|#
Indeed - which makes the problem the accountability of our
justice system, not the type of evidence collected and used.
If I am unjustly accused, I would be begging to use my DNA to
exonerate me.
I can't see any negatives about DNA, and I not aware of any
negative results (open to correction on this) from the similar
programs with fingerprints.
|4.21.08 @ 11:56AM|#
Chris Hanson,
I will avoid the burning temptation to turn that inbred comment
around on you.
If I give a DNA sample to a doctor for testing, it is with the
reasonable expectation that it be used for that purpose alone, and
hopefully destroyed afterwards.
This kind of investigative measure is the same as the Feds
subpoenaing my medical records or my safe deposit box or counseling
transcripts in the search for my criminal brother. Or indeed, going
house to house and searching each one thoroughly "just in
case."
The Democratic Republican|4.21.08 @ 12:01PM|#
moi: You can't think of any negative uses? You can't imagine a
scenario where data is collected for one reason then used for
another? Or where your genetics are deemed unsuitable for
reproduction?
And even if you can't think of any negative "uses," what gives
someone the right to demand it of you? If your DNA will exonerate
you, then offer it as evidence at your trial.
Under your way of thinking, I guess that people shouldn't be able
to refuse breathalyzers or blood tests if suspected of DUI?
|4.21.08 @ 12:01PM|#
I've got to say, this rates pretty low on my outrage meter. I agree with Dragonfly that this isn't much different from asking relatives to assist in other ways with an investigation. I also believe that tools that make investigations more likely to catch the right people are really, really important, both because they can, hopefully, keep innocent people out of jail and because they can put guilty people in jail. I'm worried about my government abusing my rights, but I'm also worried about other individuals abusing my rights.
D.A. Ridgely|4.21.08 @ 12:01PM|#
FWIW, I doubt that under current law there is a reasonable
expectation of privacy for information one leaves just about every
time one throws out a disposable cup, etc. OTOH, predicting what
the SC would rule on what is, after all, a policy question posing
as a legal question (this is, after all, what the SC does) is a
crap shoot at best.
Should we be concerned? Hell yes. But I've been arguing for some
time now that privacy is a fleeting and soon to be entirely lost
luxury in the history of humanity, anyway. This sort of
technological capability is just one more reason why.
|4.21.08 @ 12:03PM|#
Think this through. Person "x" has committed a crime, and in so
doing, left some DNA at the crime scene. A test of that DNA shows
that person "x" is somehow related to person "y" BECAUSE PERSON
"Y"s DNA WAS ALREADY ON FILE FOR SOMETHING. The officials aren't
going to person "y" to get a DNA sample; they already have
it.
What's the new outrage? It may be odd that person "y" has their DNA
in a database somewhere, but so far, neither "x" nor "y" has had a
right to privacy invaded.
CB
|4.21.08 @ 12:05PM|#
moi,
Consequentialist arguments are less at issue here than the
violation of the fundamental principle of American law enforcement:
the presumption of innocence.
The state could require everyone in the country to be booked,
photographed and printed just in case they happen to commit a
crime. The inconvenience of having to do it aside, there might be
no negative consequences for the law-abiding. But such requirements
presume us all to be potential criminals, and requires us to prove
our innocence when the question comes up.
As it stands now, the police have to have a substantial case in
order to detain us or even question us. I'd prefer to keep it that
way.
Muttley|4.21.08 @ 12:05PM|#
The link to the BTK murderer points to the title image...
BTW, there was an article mentioning the BTK on the New Yorker a
few weeks ago. The article was about how most of FBI's
psychologists working as serial killer profilers are just a bunch
of quacks. Nice article.
The Democratic Republican|4.21.08 @ 12:06PM|#
Fine -- three people in a row just said "Ya, it's not right but so what." Fine. Enjoy your chic apathy, and don't bitch and moan when you don't like the way things go.
|4.21.08 @ 12:08PM|#
Here is the article I was mentioning:
Dangerous Minds - Criminal profiling made easy.
Episiarch|4.21.08 @ 12:08PM|#
I can't see any negatives about DNA, and I not aware of any
negative results (open to correction on this) from the similar
programs with fingerprints.
Ok, moi, let's say that the guy entering the data about you into
the computer mixes up two codes and now you've accidentally been
associated with the DNA of a serial criminal, and he with yours. He
kills someone, leaves plenty of DNA, but yours comes up.
Whoops, right? Even if you are able to convince them to
double-check your DNA you will be in a world of hurt for a
while.
You do realize how much this would happen, right?
The Democratic Republican|4.21.08 @ 12:09PM|#
And as for already having data on file:
1) Why, exactly, did the feds have pap smear results from years
before? How did they get them? (Maybe the FA answers this, but the
link is busted)
2) Why should one thing you do one time in your life give the
authorities the right to keep a permanent file? Shouldn't you have
the right to remove your information after a certain amount of
time?
3) Even if you had everyone's prints on file because everyone had
been arrested, that still wouldn't justify a universal DNA
database.
|4.21.08 @ 12:11PM|#
A test of that DNA shows that person "x" is somehow related
to person "y" BECAUSE PERSON "Y"s DNA WAS ALREADY ON FILE FOR
SOMETHING.
Yeah, those people getting biopsies really have no one to blame but
themselves.
Guy Montag|4.21.08 @ 12:14PM|#
Guilt By Association: Using Familial DNA to Finger
Criminals
Um, wouldn't that be some other word/phrase besides "association"?
Like "attainer of blood" or "Guilt through Relations" or something?
Yea, I get the science-guy usage of association here, so I guess it
works in a technical sense.
The Democratic Republican,
1) Why, exactly, did the feds have pap smear results from years
before? How did they get them? (Maybe the FA answers this, but the
link is busted)
IIRC, the daughter voluntarily gave permission for them to get that
sample when she was turning in her father due to her other
suspicions. Was something like that.
No, I do not advocate coersive DNA taking methods.
|4.21.08 @ 12:14PM|#
Demo Rep: The link to the article is at the end of the blog
post. I just checked and it worked for me.
In any case, the WaPo article noted that pap smears are generally
kept for five years.
Guy Montag|4.21.08 @ 12:16PM|#
chic apathy
I heart that one :)
Chic apathy: The defining emotion of the domesticated
Cosmotarian.
Guy Montag|4.21.08 @ 12:17PM|#
I will avoid the burning temptation to turn that inbred
comment around on you.
Don't say burning on a papsmear thread.
|4.21.08 @ 12:28PM|#
"I don't think anybody's going to be falsely convicted," he
said. "It's the time, hassle and indignity of being interviewed by
the police. How much is that worth?
If brother Bobby or sister Sarah is a murderer or rapist, not very
damn much. Whose liberty are we protecting - the criminals or their
future victims?
|4.21.08 @ 12:33PM|#
If brother Bobby or sister Sarah is a murderer or rapist,
not very damn much. Whose liberty are we protecting - the criminals
or their future victims?
If you have nothing to hide, you won't mind if we come in and look
around? Sheesh.
moi|4.21.08 @ 12:34PM|#
Considering the range of personal privacy abuses, this would
seem to be on the low side. Yes, in theory, the government could
use our DNA record to do all sorts of things, but I would suspect
that if they have the power to, for example, control our breeding
suitability, they would have blown past a host of much bigger
constraints that storing DNA information.
The question here is whether, having previously collected DNA
information on some other matter, the police can now use it as
evidence in prosecuting a current crime. Following on from that,
are the police able to coerce a suspect into providing DNA. In both
cases, justice is best served by a "yes". As I hear them, abuses of
the justice system seem to be more about deaf and blind prosecution
than informed and evidence-based.
We should be focussed on rogue police and DA's and how they fuck
around with the current rules; use of DNA is not a significant
issue.
|4.21.08 @ 12:35PM|#
J sub D
The presence of familial DNA at a crime scene is not "reasonable"
suspicion?
|4.21.08 @ 12:36PM|#
Guy,
From the FA:
Investigators obtained a court order without the daughter's
knowledge for a Pap smear specimen she had given five years earlier
at a university medical clinic in Kansas.
If obtaining a PAP smear from a suspect's daughter retained for
medical purposes isn't a violation of the 4th Ad., then it has even
less meaning than the little the WOD/WOT left it with.
An evil little part of me wants people who disagree with the
protections of the Bill of Rights to no longer be covered by
them.
|4.21.08 @ 12:41PM|#
There was a 60 Minutes piece on this about a year ago. An
innocent man was indeed exonerated based on the collection of DNA
evidence from a family member of the real murderer.
If the family member consents to the collection of his/her DNA, I
think it's a no brainer. Whether the consent was given in another
context (routine medical examination unrelated to any police
investigation) is trickier question.
|4.21.08 @ 12:49PM|#
The presence of familial DNA at a crime scene is not
"reasonable" suspicion?
No, it isn't. They didn't know it was familial DNA until they
obtained the daughter's DNA. They had DNA. They had a subject they
didn't have enough evidence on to force him to submit a sample.
They find out his daughter had a PAP smear, and they get that
DNA.
How did they a judge to sign off on this?
Checks and balances? We don't need no stinkin' checks and
balances!
Tbone,
Just because their long shot paid off doesn't mean it's a good
policy to adopt. Throw up the smokescreen of crime victims all you
want, but the Bill of Rights is protection for everyone, not just
the innocent.
And... how many people would avoid medical care if every sample of
blood or tissue they gave would end up in a national database? Way
to piss all over doctor/patient privilege.
Guy,
That came off snippier toward you than I intended. A bit sleep
deprived.
Guy Montag|4.21.08 @ 12:52PM|#
That came off snippier toward you than I intended. A bit
sleep deprived.
Yea, all that talk of milk can do that to you :)
|4.21.08 @ 12:55PM|#
Besides, personal DNA is a part of you, as an individual. It
is subject to the moral and legal requirements of the natural right
of privacy, not of any particular American amendment.
But it's a part of you that sloughs off constantly in the form of
hair, skin cells, and saliva (et al). It can be collected in ways
that don't violate the 4th. While there are some nightmare
scenarios, they're a ways out there (slippery slope, even). There
is also the potential to make the justice system a lot more just,
immediately.
|4.21.08 @ 1:03PM|#
Maurkov,
"We Were Out Of Our Minds With Joy" by David Marusek. The main
character is "seared" so that any cells he sloughs off are
automatically immolated. He pulls out eyebrow hairs so that he can
watch them burn down like a fuse.
Practical defense.
|4.21.08 @ 1:14PM|#
""it seems very likely that a similarly sized national DNA
database will be created in the near future."""
It was recently reported that the Feds will start taking DNA upon
arrest.
I wouldn't be suprised if there is a HIPPA exclusion for law
enforcement.
|4.21.08 @ 1:28PM|#
How did they a judge to sign off on this? Checks and
balances? We don't need no stinkin' checks and balances!
Apparently they must have, or Rader probably wouldn't be in
prison.
It does not strike me as unreasonable for law enforcement to use
the data available (provided they have legal access to it) as a
basis to obtain a warrant.
I have been fingerprinted for background checks and if I left a
print at a crime scene, I'd damn sure get picked up. Similarly, if
a suspect's DNA were on file, they'd get picked up. But since this
information now comes from a third party, it's "unreasonable"? I'm
having trouble with the logic.
Guy Montag|4.21.08 @ 1:30PM|#
Ron Bailey wins the thread: "Using Familial DNA to
Finger Criminals" on a pap smear story.
Dang, I was working so hard defending the Republic that I almost
missed it.
|4.21.08 @ 1:41PM|#
It does not strike me as unreasonable for law enforcement to
use the data available (provided they have legal access to it) as a
basis to obtain a warrant.
Way to zoom past the argument. It's not that they shouldn't be able
to use the DNA once they have it, but rather if it was legal for
them to have it in the first place.
You are fine gutting the 4th amendment and I'm not. We are at an
impasse.
|4.21.08 @ 1:58PM|#
Read the article. The police got a COURT ORDER to obtain the
daughter's DNA sample as Rader was a suspect. The DNA match,
provided the probable cause from which they obtained a WARRANT to
collect his DNA.
Again, please demonstrate what was "unreasonable", illegal, or a
violation of due process.
Bingo|4.21.08 @ 2:16PM|#
Chic apathy: The defining emotion of the domesticated Cosmotarian.
Ah, this is beautiful.
|4.21.08 @ 2:21PM|#
Read the article. The police got a COURT ORDER to obtain the
daughter's DNA sample as Rader was a suspect. The DNA match,
provided the probable cause from which they obtained a WARRANT to
collect his DNA.
And of course, if a court orders it, it must be constitutional.
Ain't that right Tbone?
Bronwyn|4.21.08 @ 2:33PM|#
I should know this, but I guess I'd better look up the
policies... anywho, As a genetics lab, we have loads and loads of
DNA on-hand. They are all accessioned and coded, but since we're a
clinical service every sample can be linked back to a specific
person.
The samples are kept so patients can order new testing if needed,
and for use in internal validation studies - nothing for grants or
publications, mind you.
I just wonder if the feds could come in and demand a look at our
patient records and if they can take our samples without patient
consent.
*curious*
|4.21.08 @ 2:52PM|#
I wouldn't be suprised if there is a HIPPA exclusion for law
enforcement.
Not really. Under HIPAA, something like a PAP smear could be
released for a criminal investigation only pursuant to a subpoena
or search warrant.
I just wonder if the feds could come in and demand a look at
our patient records and if they can take our samples without
patient consent.
If they've got a warrant/subpoena, yes they can.
|4.21.08 @ 3:06PM|#
SF and J sub
Of course anything a judge orders is not necessarily OK. But, it's
in the system and subject to appeal (failure of interest in which
tells me we probably aren't too far out on a limb here).
Neither of you have made a case that anyone's rights were violated.
Are you arguing Rader should be released based on a violation of
his 4th amendment rights?
jtuf|4.21.08 @ 3:43PM|#
We already look for suspects based on a witness's physical
decription of the criminal. Since our facial features reflect our
DNA, using familial DNA is a lot like using a witness description.
With the witness ID, we risk racial profiling. With the familial
DNA, we risk holotype profiling.
Annual reviews of summary statistics won't help here. Say a
statistician finds that one holotype ends up in jail more often
than others. Did he discover the genetic basis for criminal
behavior, evidence of a discriminatory environment that drives
people to crime, or evidence of systematic bias in the court
system? It might even be a combination of the three or a random
fluke. Looking through the actual reports and interviewing the
investigators would help. Raise a red flag if an officer says
something like, "You just can't trust those mgx wildtypes."
|4.21.08 @ 4:13PM|#
I'll also add that a person who is convicted of a crime based on an admittedly illegal collection of a relative's DNA would not have standing to exclude that evidence.
|4.21.08 @ 5:36PM|#
But since this information now comes from a third party,
it's "unreasonable"? I'm having trouble with the logic.
The police got a COURT ORDER to obtain the daughter's DNA sample as
Rader was a suspect. The DNA match, provided the probable cause
from which they obtained a WARRANT to collect his DNA
Tbone, no one asked the daughter if they could borrow her DNA, nor
did they inform her that it would be retained and used this
way.
|4.21.08 @ 6:02PM|#
Hugh,
As others have noted, is there a law enforcement exception under
HIPAA? If no, Rader has a basis for appeal. If yes, then the
daughter may have a basis for action but with drug and university
labs and organ registeries already getting rich off medical tissue
without compensation, I'm not sure how far you get arguing about a
snapshot of your DNA.
B|4.21.08 @ 9:37PM|#
Holy shit, the police suspected a man of being a serial killer
and obtained a COURT ORDER first to get the daughter's DNA because
they couldn't get his. Holy shit, did anyone bother to check if
Heinrich Himmler was running the investigative team. Seriously,
give me a fucking break. A fucking court order was obtained for the
purpose of catching a serial killer, and you fuckers are yelling
"police state". We even have some idiots acting like he should get
out jail because of HIPAA. For christ sake, you fuckers are not
only really, really ignorant about how HIPAA works, but you also
like to yell fire in a crowded theater.
It is hyperbole of the kind present on this message board that
causes most people to think libertarians are total fucking
douchebags. That and the fact that you think Jesse "I still have
questions about 9/11" Ventura is some kind of genius.
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