FORENSIC GENETICS: A GLOBAL HUMAN RIGHTS CHALLENGE
By Jeremy Gruber
DNA testing was initially introduced into the criminal justice system of the United States, one of the first countries to adopt its widespread use, as a method of developing supplemental evidence to be used in convicting violent felony offenders or freeing the innocent on a case by case basis. A 1992 report on New York State’s original DNA database legislation stated that it would be limited to:
murderers and sexual offenders because DNA evidence is more likely to be uncovered in homicides and sexual attacks than in other crimes. And sexual offenders… often are recidivists.
Such a characterization is almost quaint by today’s standards. Over just a short time, function creep has overcome the system and the balance between the legitimate needs of law enforcement and individual rights has been lost. In the last fifteen years forensic DNA collection and the resulting databases have changed dramatically, with DNA collection by law enforcement around the globe now routinely being used for a multiplicity of purposes that pose significant privacy and civil rights concerns to every citizen with little public debate and few safeguards to protect against possible adverse effects. In the United States, for example, the federal government and all fifty states have created permanent DNA databases taken from ever-widening categories of persons and subjected these collections to regular searches. The result is that the United States now maintains the largest DNA database in the world, with the Combined DNA Index System (CODIS) holding over 9 million records as of 2011 (the United Kingdom’s National DNA Database (NDNAD) is of similar size giving it the unfavorable distinction of having the largest percentage of its population recorded on a national DNA database). This has occurred despite the fact that DNA is far different from other methods of identification such as fingerprints. It is a window into an individual’s medical history and that of their entire family.
Law enforcement now routinely uses these tools to search and profile citizens convicted of even petty crimes and collection practices are heavily trending towards the permanent retention of both biological samples as well as profiles from individuals arrested for but never convicted of a crime. At the same time that forensic DNA databases are expanding, a stunning array of techniques have emerged allowing lab technicians to glean information from DNA that goes well beyond the mere identification of a person and are providing law enforcement unprecedented access into the private lives of innocent persons by way of their own genetic data without a court order or individualized suspicion.
Some of these techniques include:
1) Trolling for suspects using DNA dragnets where police take samples from the public.
2) Comparing partial matches between DNA evidence and profiles in databanks to obtain a list of possible suspects from their relatives (“familial searching”).
3) Constructing probabilistic profiles (including but not limited to race) of a perpetrator from DNA collected at a crime scene.
4) Surreptitiously collecting and searching DNA left behind on items such as cigarette butts and coffee cups.
5) The creation of local “offline” forensic DNA databases.
6) Dismissal of petty offense arrests in return for “voluntarily” joining a DNA database.
Many of the same problems that routinely plague criminal justice systems are reflected in these practices, including racial disparities in arrests and convictions. For example, while African-Americans are only 12% of the U.S. population, their profiles constitute 40% of the Federal database (CODIS). The lack of ethical guidelines for forensic DNA practices in the United States has implications far beyond just the American citizenry however. Governments around the world are looking to the United States as well as the United Kingdom for guidance.
Today, 56 countries worldwide are operating forensic DNA databases and at least 26 countries, including Tanzania, Thailand, Chile and Lebanon plan to set up new DNA databases. A number of countries, including Australia, China, Israel, and New Zealand are actively in the process of expanding their databases. And a number of other countries, such as Bermuda, the United Arab Emirates, Uzbekistan and Pakistan are even proposing including their entire populations on their database. DNA databases around the world vary widely on issues ranging from access and consent to retention of both DNA samples themselves as well as the computerized profiles created from them. All of them share one common trait, though: a lack of sufficient privacy and human rights safeguards.
The growth of forensic DNA databases worldwide is often characterized as the natural response to public demands in each respective country. But the alarming rate of creation and expansion of such databases, with little public input and discussion, has been anything but piecemeal.
Public and private entities from the US as well as the United Kingdom are actively promoting DNA databases, often portrayed as technical solutions to high crime rates. The UK’s Forensic Science Service (FSS), for example, has directly contracted with foreign governments including the UAE. Meanwhile, the Department of Justice FBI Laboratory has worked with over 29 countries to plan and create their databases (running the FBI developed CODIS system) including promoting international agreements and authorizing legislation. Even individual US elected officials are actively promoting DNA databases abroad; Denver District Attorney Mitchell Morrissey, for example, regularly consults with foreign governments on their DNA databases.
The promotion of forensic DNA databases is by no means limited to government. A diverse private industry has developed to directly contract with foreign governments to build and maintain such systems, including offering policy recommendations largely modeled on United States practice. Over the last eleven years, Life Technologies has advised over 50 foreign governments and states on forensic DNA legislation, policy and law and regularly makes promotional presentations to foreign countries. In 2009, for example, the government of Japan standardized their DNA collection and analysis for the country’s forty-seven prefecture laboratories using Life Technologies DNA testing systems. Life Technologies continues to provide support to Japan’s National Police Agency. Such services are by no means limited to those countries that request them either. In 2009 the Bermuda government signed a million dollar multi- year contract with Florida-based firm Trinity DNA solutions to set up and run their database after salesmen for the company had approached Bermudan officials engaged in a comprehensive marketing plan.
Efforts to share DNA data between countries have expanded just as rapidly, allowing for data sharing across borders with little oversight. In Europe, data-sharing agreements established through the European Union (such as the PRÜM DNA Search Network) have begun this process.
In the United States, the National Institute’s of Justice International Center promotes information sharing among similar Institutes worldwide.
Certainly the single largest contributing factor to DNA sharing across borders is Interpol. Interpol, the largest international police coordinating organization, has facilitated plans to create and maintain an international DNA database since Resolution No. 8 of the 67th General Assembly in 1998 in Cairo. This resolution endorsed the encouragement of international co-operation on the use of DNA in criminal investigations and consequently the Interpol DNA unit was established. The objective of this unit is to:
provide strategic and technical support to enhance member states’ DNA profiling capacity and promote widespread use in the international law enforcement environment.
Through their DNA Gateway and G8/Interpol Search Request databases, Interpol is able to collate DNA profiles provided by member states and make these available to investigators globally where a match has been recognized. Interpol has 184 member countries and currently forty-nine members are making use of the DNA Database to varying degrees. Despite over ten years of operation, Interpol’s databases still do not have clear operating procedures; for example, there is no transparent system for removing DNA profiles nor are there standards for comparing requests between member states with sophisticated and not so sophisticated forensic practices.
In addition to simply maintaining the database, the Interpol DNA unit is also urging harmonization of technical standards and methods across member states when creating DNA profiles from DNA samples. A number of countries use different operational practices when treating genetic data. For instance, countries have different practices on the number of markers used in their national systems (which pose obvious issues of accuracy). Advisory groups have been formed in Europe and elsewhere tasked with improving harmonization of forensic DNA methods to allow for the ease of sharing data across national boundaries (such as the ISO Standards for DNA Database Exchange).
At the same time that the growth of forensic DNA databases is exploding, there has been little public discourse on the privacy and human rights concerns they raise; nor has there been any domestic or international effort to create standards reflecting such concerns including by those international bodies that are promoting information sharing. That may be changing. The recently established Forensic Genetics Policy Initiative, a collaboration of GeneWatch UK, Privacy International and the Council for Responsible Genetics, seeks to achieve a direct impact on the human rights standards adopted for DNA databases across the world. The project aims to build global civil society’s capacities to engage in the policy-making processes on the development of national and international DNA databases and cross-border sharing of forensic information and to protect human rights by setting international standards for DNA databases. An appropriate middle ground between the legitimate needs of law enforcement and a respect for individual rights is achievable. We must start now.
Jeremy Gruber, JD, is President of the Council for Responsible Genetics.
1. Cuomo Seeks Genetic Data of Offenders, The New York Times 1992.
2. http://www.fbi.gov/about-us/lab/codis/ (accessed August 20,2011).
3. Please see CRG’s Guide to Forensic DNA Databases at http://www.councilforresponsiblegenetics.org/dnadata
4. Resolution No AGN/67/RES/8.
5.http://www.interpol.int/Public/Forensic/dna/default.asp (accessed August 21, 2011).