Three years ago, Libertas published a policy brief highlighting how law enforcement was using new DNA technology to identify individuals and the problems this poses by empowering the government to identify suspects using massive databases of DNA familial connections.
Individuals who obtain their DNA profile (via Ancestry or 23andMe, for example) can upload them to services like GEDmatch to find relatives. This is particularly helpful for family history work. Over a million people have uploaded their DNA to create a large database of family connections.
In past years, law enforcement was given open access to these databases to identify suspects based on nothing more than a DNA sample—such as a drop of blood or saliva found at the scene of a crime. Because so many people have uploaded their data to these databases, there are now enough connections of distant cousins to identify nearly any caucasian American. As more people upload their data, the breadth of this pervasive network will extend to those of other ethnicities and nationalities as well.
GEDmatch now requires user consent for information to be shared with law enforcement. This is an important step, though insufficient—because asking someone to consent to the government’s use of their DNA requires them to also consent on behalf of all of their relatives who share that DNA. If your sibling or parent or cousin was privacy conscious and did not want to be so exposed, you would be overriding their wishes by virtue of uploading your DNA and “consenting.”
Because of this shared nature of DNA, we believe a far more cautious balance is needed in order for law enforcement to conduct mass searches in these DNA databases—even if the people offering their DNA data have “consented.” For that reason, this session we opposed SB156 which set up a legal framework for law enforcement to conduct these searches.
This bill contains zero judicial oversight. All that is needed for law enforcement to conduct these searches is for the prosecutor to agree that the search is “appropriate and necessary” to find their suspect. This is one branch of the government agreeing with itself.
The 4th Amendment to the U.S. Constitution requires particularity—meaning that instead of bulk searches, law enforcement has to narrowly focus their search on a particular place or person. But these DNA searches are conducted precisely because law enforcement has no particularity—they have no suspects. They have some DNA which they wish to use to conduct a broad search in a database full of millions of people in hopes of developing some leads and finding their suspect.
Consequently, we believe that stricter controls are necessary in order for law enforcement to search in these databases. We opposed SB156 during the session but it passed in the Senate 24-2 and passed the House 46-24. Today we sent a letter to Governor Cox’s office requesting a veto so that a better balance can be struck in the months ahead instead of codifying warrantless searches with poor guardrails.