“STOP THE DNA COLLECTION FRENZY!”: EXPANSION OF GERMANY’S DNA DATABASE
By Susanne Schultz
On the 23 of May, at the anniversary of the German constitution, various civil rights and data protection organizations handed an open letter to the German minister of Justice. They asked Sabine Leutheusser-Schnarrenberger to take action in order to control and restrict the storage of DNA profiles by the German police and to cancel projects of international exchange of DNA data at the European and transatlantic level.
The campaign “Stop the DNA Collection Frenzy!” points at various problems of DNA data mining by the German police. The central DNA database of the German criminal police, the BKA (Bundeskriminalamt) has expanded dramatically since its installation in 1998 to currently over 920,000 DNA profiles stored. Most of them (730,000) are profiles of individuals; the other 190,000 profiles derived from crime scene samples.
According to law the German police are allowed to store DNA profiles from adolescents and adults accused or convicted of major offenses. Since the law reform of 2005, it counts also as a major offense when crimes are expected to be repeated and thereby are interpreted to sum up to a major offense. This is the legal basis for a daily police practice to also request DNA analyses from people accused of theft or other minor offenses. And since 2005 reform, the police are also allowed to pass a judicial order normally required for DNA extraction and analysis in the case that the person consents “voluntarily” to the DNA analysis. Thus, it has become normal police routine to avoid the judicial consent because people arrested or confronted otherwise with the police do normally not insist on their right to get a judicial order. According to the official German data protection officers’ reports, today more than 90 percent of DNA samples are given in this sense “voluntarily.”
That may also explain why a lot of samples stored within the central BKA DNA database are not even complying with the lax and unclear legal criteria for storage. One random test organized by the data protection officer of the state of Baden-Württemberg, for example, resulted in 42% of the profiles controlled having to be deleted from the database afterwards. Those checks are rare and arbitrary actions that the official data protection officers take only when they have time for it. Generally there is no regular comprehensive and independent control of the DNA database and for example no guarantee that profiles once stored are deleted after 10 years in the case of adults and 5 years in the case of adolescents, as the law requires. The result of this nontransparent and expansive DNA collection by the German police is that it is shifting to become a tool of daily police investigation and an instrument to store data of whole population groups-especially of those who are affected by a society with an increasing gap between the rich and the poor. While the German public still believes that DNA profiles are used for capital crimes such as murder and rape, the statistics of the BKA tells a different story. Most of the matches it reports refer to minor offences; for example, 63% of the matches the databank provided are related to theft while less than 3 percent related to rape and murder.
Another problem for data protection activists are the dragnets German police often use in the case of major crimes. Formally the participation in such DNA tests is voluntary. Nevertheless, there is not only considerable social pressure to participate, but there have also been cases in which the public prosecution offices applied to force test refusers to DNA testing without any other evidence against them. This procedure tends to turn the presumption of innocence on its head, making the accused “guilty until proven innocent.”
It was also during a dragnet that it first became public that German police are also already involved in familial search strategies. In the little town of Dürpen, the police arrested a young man accused of rape because they had analyzed the DNA of his two brothers who had participated in the dragnet. Because of partial matches between crime scene DNA profiles and these brothers they had identified the suspect.
Data protection organizations are therefore not only concerned with the dramatic quantitative expansion of the database but also with qualitative changes that might become more important within the future of DNA testing and advancing human genome research. The fact that this case of familial searching remained uncontested-even though the law officially restricts forensic DNA analysis to the identification of suspects and does not allow the analysis of personal traits except the sex of a person-shows that legal barriers are porous. Forensic laboratories in some cases also transgress this limit when they analyze, for example, the “biogeographic” origin of a searched person via DNA analysis, as has happened in some cases in the last several years.
Another problematic issue for the German campaign against expanding DNA databases is international exchange of data. One such project is the European Union’s process of exchange of police DNA data, called the process of Prüm because it has its precedence in a treaty of exchange of police data between seven European countries signed in the German town of Prüm. The treaty allows an automatic daily comparison of all DNA profiles in the different national databases and allows national police to search for matching profiles in the DNA databases of the other European law enforcement agencies. In 2008, this model was taken over by a decision of the European Commission, and currently the DNA data exchange between the 27 countries of the European Union is on its way to being fully implemented. There are still some technical and bureaucratic obstacles keeping “Prüm” from working entirely between all countries. Nevertheless the automatic exchange of data between countries of very different data protection safeguards is another concern for civil rights organizations.
The Prüm treaty has been also the model for a bilateral treaty between the US and Germany signed in 2008. In this case of transatlantic DNA profile exchange, the public has remained nearly totally uninformed. Members of the leftist Party DIE LINKE recently therefore conducted a Parliamentarian inquiry in order to get better information about the stage of this transatlantic DNA exchange.
Meanwhile, the campaign “Stop the DNA Collection Frenzy!” protested in numerous public places in order to raise public awareness of DNA storage as a problematic arsenal of state surveillance. A huge cotton swab called “Willi Watte” accompanied all campaign activities. Its engagement can be seen at the homepage of the campaign (www.handsoffmydna.eu).
Susanne Schultz is Project Manager of the Gen-ethical Network (Gen-ethischen Netzwerks) in Germany.