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 recidivist."
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:
- Trolling for suspects using DNA dragnets where police take samples from the public.
- Comparing partial matches between DNA evidence and profiles in databanks to obtain a list of possible suspects from their relatives ("familial searching"). Constructing probabilistic profiles (including but not limited to race) of a perpetrator from DNA collected at a crime scene.
- Surreptitiously collecting and searching DNA left behind on items such as cigarette butts and coffee cups.
- The creation of local "offline" forensic DNA databases.
- 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 (see the Council for Responsible Genetics’ Guide to Forensic 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.
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.
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.
This article is an abridged version of a piece that originally appeared as an introduction to a special edition of GeneWatch magazine dedicated to forensic genetics. In 2011, the Open Society Information Program launched a new grantmaking initiative in response to the proliferation of DNA databases, which is supporting the Forensic Genetics Policy Initiative to devise a human rights compliant standard for their governance.