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Police say no warrant necessary to probe ancestry DNA database

| May 1, 2018 | Criminal Defense |

When you send in your genetic material to have an ancestry DNA test done, is that material private? Major commercial providers of these tests say they won’t hand the data over to law enforcement without a court order. That may not mean much, as we recently learned in the “Golden State Killer” case.

Investigators in Sacramento, California, recently announced they have arrested a suspect in the decades-old serial murder case. The Golden State Killer, also known as the “East Area Rapist,” is thought to have committed at least 13 murders, at least 50 rapes, and perhaps 100 robberies throughout California between 1976 and 1986. A former police officer, now 72, has been tied to the crime in part by matching crime scene DNA to a distant relative’s profile on a site called GEDMatch.

Unlike other commercial DNA testers, GEDMatch allows anyone with a DNA profile to upload it into a publicly available database that they can use to locate relatives. Police are apparently able to access that database, as well.

Again, the suspect did not have his DNA tested or upload anything to GEDMatch. He was identified in part by finding similarities to a distant relative who had done so. This required no warrant or court order of any kind because the database is available to the public. A lead investigator in the case told reporters that GEDMatch is one of law enforcement’s best tools.

So, if one of your relatives takes a DNA test and uploads the results to GEDMatch, law enforcement could use those results match crime scene DNA to you — even though you never had the test.

Is that legal? Shouldn’t a warrant be required? Are there no privacy concerns?

There are certainly privacy concerns, but a New York University law professor interviewed by the Associated Press said it’s probably legal. Police are generally allowed to access any information the public has access to. The Supreme Court has ruled that police may obtain DNA samples from any suspect or arrestee. And, as a forensic attorney told the AP, there are no strong privacy laws preventing police from accessing databases maintained by third parties.

On the other hand, legal scholars are well aware that the law is not keeping up with technological developments. DNA evidence has been around since the 1980s, but private tests and their associated databases are quite new. Courts may determine that DNA is inherently private and require police to obtain warrants, at least from genetic databases that are not open to the public.

Do you think the police should have unfettered access to these DNA databases?