Guilt By Association: Using Familial DNA to Finger Criminals

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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.

http://www.virginmedia.com/microsites/technology/slideshow/vm-tech-gallery/civilliberties/img_5.jpg

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?

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  1. 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!

  2. I don’t say things like this often, but here it is:

    If you aren’t outraged by this, you’re not a libertarian.

  3. The key is intent, Callaghan said. The bureau is “not deliberately trolling the database looking for relatives,” he said.

    Yet.

  4. 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.

  5. 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.

  6. 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.

  7. 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?

  8. 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.

  9. 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).

  10. 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.

  11. 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.

  12. 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?

  13. 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.

  14. 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.”

  15. the “BTK murderer” link goes to the wrong place, I think.

  16. 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?

  17. 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.

  18. 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.

  19. 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

  20. 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.

  21. 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.

  22. 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.

  23. 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?

  24. 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.

  25. Dave W. & Muttley: Link fixed. Thanks.

  26. 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.

  27. 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.

  28. 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.

  29. chic apathy

    I heart that one 🙂

    Chic apathy: The defining emotion of the domesticated Cosmotarian.

  30. I will avoid the burning temptation to turn that inbred comment around on you.

    Don’t say burning on a papsmear thread.

  31. “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?

  32. 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.

  33. 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.

  34. J sub D

    The presence of familial DNA at a crime scene is not “reasonable” suspicion?

  35. 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.

  36. 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.

  37. Sugarfree,

    Same question.

  38. SugarFree,

    So, I did not recall correctly. My bad.

  39. 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.

  40. That came off snippier toward you than I intended. A bit sleep deprived.

    Yea, all that talk of milk can do that to you 🙂

  41. 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.

  42. 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.

  43. “”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.

  44. 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.

  45. 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.

  46. 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.

  47. 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.

  48. Warrant? Is that band still around?

  49. Chic apathy: The defining emotion of the domesticated Cosmotarian.

    Ah, this is beautiful.

  50. 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?

  51. 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*

  52. Tbone,

    Anything a judge OKs is fine by you? Noted.

  53. 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.

  54. 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?

  55. 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.”

  56. 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.

  57. 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.

  58. 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.

  59. 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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