Police officers in the US are allowed to collect DNA samples during an arrest, sometimes even before filing an indictment. This procedure threatens the civil liberties of innocent people * and we are doing a pilot for a different biometric database in the distribution
And here in Israel: without a security officer and without the possibility of comparing fingerprints: the activation of the biometric experiment is a PR stunt
Galei Tzahal He revealed today that the biometric database will start working in two weeks in an experimental manner: any Israeli citizen will be able to contact the bureaus of the Ministry of the Interior, and replace his current identity card and passport with smart cards. The police will have partial access to the biometric database
In response to Deputy Minister Faina Kirshenbaum's statement that the biometric database will be activated within two weeks, Prof. Karin Nahon, responsible for the biometric database field in the Movement for Digital Rights, stated that: "The pilot of the biometric database is being launched in an unprofessional manner and is harming the citizens of Israel. It is hard to believe that the database is being launched, when there is still no software that compares fingerprints and prevents ID forgeries. Operating the biometric database in its current form is a publicity stunt at best, and a dangerous experiment on humans at worst."
The government wants your DNA / Erin Murphy - Scientific American
In a series of murders that began in the mid-80s, at least ten women were murdered in the Los Angeles area. The serial killer was given the nickname "The Sleepy Ripper" for no long periods of inactivity between his crimes. For about 25 years he eluded the law. Then, in 2010, unrelated to the series of murders, police in California arrested a man for unlawful possession of a firearm. State law required the detainee to provide a DNA sample to the US national database. Typically, a search of this database is designed to find an exact match between a DNA profile left by a person at a crime scene and a DNA profile of a known criminal. The search focuses on 13 sites in the genome (our DNA in its entirety) where parts of the genetic material differ from person to person. If the crime scene material is different at one of those 13 sites, it means the samples don't match and investigators know they still don't have a suspect.
But that time, the search was more sophisticated. His goal was to find similar DNA profiles, and not necessarily identical to the profile of the "Sleeping Ripper". Such a search was possible because in 2008 California was the first state in the USA where it was officially allowed to conduct a new type of search in the database. In such a search, known as "relative matching" or "family matching", attempts are made to find partial DNA matches. It is edited after no complete matches were found to the DNA from the crime scene. Since relatives usually share more DNA than unrelated people, a close, though not perfect, match to some record in the database can identify a relative of the criminal. In such a case, the police can interrogate the relatives of the person who searched the database in hopes of solving the mystery.
In the "Sleeping Ripper" investigation, a search for a family match was conducted in 2008, but the investigators came up with nothing. But two years later, a similar search yielded the man arrested in California for illegal gun possession. Due to the age of the detainee and the dates of the serial killer's first attacks, suspicion soon fell on an older relative - his father. A police officer posing as a waiter at a pizzeria secretly collected DNA samples while the family members were dining there. The samples from the father matched the evidence collected at the crime scene years before, and the arrest of the suspected serial killer "The Sleeping Ripper" was not long in coming.
A crime mystery of this type solved using DNA samples is so fascinating that TV series often imitate it: a brutal killer is finally caught thanks to brilliant technology and the persistence and commitment to the police's goal. However, there are also other kinds of stories about the use of sophisticated technology, also about the search for a serial killer, stories that are no less interesting, but without a doubt, cause for concern.
Take for example the case of Shannon Kohler, a Louisiana resident who was caught in a "DNA trap" as part of an extensive police operation during which more than 600 samples were collected from men whose description is similar to the presumed description of the killer. Kohler refused to give a sample, but presented a host of proofs of his innocence, including evidence of his whereabouts at the time of three of the murders.
Still, the police officers obtained a court order (which was later ruled inadmissible) allowing them to take a DNA sample from him, and leaked his name to the press, who quickly presented him as a prime suspect who refused to cooperate. In the end, Kohler's sample proved that he was not the killer, but the authorities did not bother to inform him of his acquittal. He learned that he was cleared of all suspicion only two months later, when a short article on the subject was published in one of the newspapers, and after all that time the cloud of suspicion of the serial murders hung over his head and he lived in fear of a false arrest for a serious crime.
As Kohler's story shows, the expanding use of DNA testing by law enforcement agencies poses a growing threat to the civil liberties of innocent people. In the 15 years since the National Database of DNA Samples (CODIS) was established, it has accumulated the DNA signatures of more than 10 million criminals and 450,000 signatures of unidentified people whose genetic material was found at some crime scene, but was never located . The database also includes profiles of people who have been accused of some crime, but have never been convicted. More than half of the states in the US today require their police officers to collect DNA samples from detainees suspected of certain crimes.
To address the threat to civil liberties, policymakers must demand answers to a few simple questions regarding the effectiveness of this technology. For example, how many convictions have the searches in the database of DNA samples yielded and what proportion of the searches yield results that are useful. And this before a database will be established in which DNA samples of all US citizens will be stored.
For more than 200 years, the police in the US have been required to present a court order when they come to conduct a search and collect evidence from people as part of a crime investigation. There is no reason for DNA evidence to deviate from this rule. The government must also establish stricter oversight of how the genetic databases are used, by measures such as banning the search for partial matches. Also, it must enact laws that will ensure that the DNA samples in the database will not be re-examined without approval from the court and that the police database will be accessible to defense attorneys for the purpose of proving the innocence of people accused of no wrongdoing. These changes are not only necessary to preserve civil liberties, but they are also necessary for public safety.
the slippery slope
There were days when the danger posed by mandatory DNA testing was minimal. This practice began in the late 90s after several US states enacted laws requiring those convicted of the most serious crimes, such as murder and sex crimes, to provide a blood sample for their DNA sampling. Today, DNA samples are taken simply by rubbing a padded toothpick against the inner side of the cheek, and the stored information only makes it possible to determine identity or difference between people, but it does not teach anything about the characteristics of the sample.
In the first decade of this century, more and more states in the US began to require the taking of DNA samples from criminals who were also convicted of less serious crimes and even minor misdemeanor offenses. Today, the federal government and all US states authorize mandatory sampling of certain convicted felons. The courts, all alike, support such laws noting that a convicted felon's right to privacy is less than that of other citizens.
But new concerns for individual rights have been raised due to the prevailing trend in US states in the last five years to oblige those arrested on suspicion of committing certain crimes to provide a DNA sample. More than half of the states, and the federal government, have enacted laws regarding the taking of restraint samples. Some of these laws allow the police to take a genetic sample immediately upon arrest, and not only after an indictment has been filed. There are countries that require the data of an arrested person to be automatically removed from the database if in the end no indictment is filed against him, but there are others that impose on those who have been unjustly arrested to file a petition to delete their DNA record. And yes, in the US there are countries where laws have been enacted guaranteeing the destruction of the genetic sample itself (not just the data record), and in contrast there are countries where the law allows the government to keep the sample for an unlimited time.
In the coming months, the US Supreme Court will decide whether taking a sample from a detainee violates the Fourth Amendment to the Constitution (protection against arbitrary search, burglary or seizure by the authorities). There is no dispute that a suspect who has been arrested for a crime must be required to provide a DNA sample when it is necessary for comparison between it and a sample from the crime scene in question. But taking a sample from every stop just to expand the database is another matter. The number of arrests per year in the US is more than 14 million, and a huge part of them end in nothing. Therefore, regulations requiring a sample of every arrestee can result in many samples being taken from innocent people and kept in police databases, and compared weekly with samples from unsolved crime scenes across the US.
As for searches for family matches, on the other hand, there is still no sweeping decision and this is subject to the consideration of the court in each case. Similar to the question of data collection from arrests, the guidelines regarding family searches differ greatly from country to country. But unlike the laws that dictate which DNA samples should be stored in the database, which are set by democratically elected public officials, the rules for how the police use the genetic database are often set by senior state or federal government officials or administrative agencies, or even laboratory heads. State or municipal forensics. In fact, the state of affairs is so ambiguous that it is difficult to even determine whether a particular country follows a particular procedure. According to the data available today, at least 15 of the US states conduct family matching searches systematically, although the most prominent users are California, Virginia, Colorado and Texas. There is no doubt that other countries also unofficially carry out such searches here and there, and some countries are now considering regulating it in legislation. There are countries that recognize the danger of misuse. Maryland and the District of Columbia prohibit by law the intentional seeking of family matches, and more than 15 states other than Maryland prohibit it through written or unwritten policies.
This is not your father's fingerprint
Advocates of extensive collection of samples and multiple compatibility tests for the purpose of solving crimes often claim that DNA is simply a sophisticated fingerprint, and therefore a DNA sample has nothing to raise new legal issues. Indeed, the handful of courts that ordered regulations for taking DNA samples from arrestees compared the DNA sample to the routine taking of fingerprints during an arrest, a procedure accepted by the public and the courts for a long time. This analogy may seem convincing at first glance, but it is misleading: DNA can provide more information about a person than a fingerprint, and can open a wider opening for violating their right to privacy.
More than that, taking fingerprints is also more invasive than it used to be. For many years, the courts saw the taking of fingerprints during an arrest as a marginal violation of the detainee's privacy, and since this technique was introduced until not long ago, it was indeed the case: a fingerprint would be taken at the local police station and kept in a musty drawer. It's rare that it would pop up again. This would only happen when the police had new reason to suspect a certain person of committing some crime. Today, the fingerprints, like the DNA profiles, are stored in computer databases, and they can be searched automatically not only in local databases, but also in global databases. There is no doubt that access to shared databases helps solve crimes. But when a mistake happens, and mistakes do happen, the results can be horrific. It is enough to mention the case of Brandon Mayfield, a lawyer from Oregon who was arrested and held in custody for two weeks on suspicion of involvement in the attack on the train station in Madrid in 2004 because of a wrong match to his fingerprint.
A wrong match is the only way a fingerprint can be misused, which simply doesn't reveal as much about its owner as the DNA sample does. Law enforcement cannot tell from your fingerprint if you have siblings or if you are adopted nor can they identify your ethnicity or gender or find out if you have a predisposition to cancer. Unlike the genetic profile, the fingerprint does not teach anything about the color of your hair and eyes, your height, your age, your body structure or the color of your skin, certainly not about a variety of genetic tendencies such as a tendency to violence, addictions, or mental illnesses.
The DNA samples that are currently tested and kept for forensic purposes do not reveal the most personal details of those mentioned here. But the technology for detection already exists or is expected to be available soon and the law does not explicitly prohibit such tests. The courts consistently interpret the constitution and derive many rules from it regarding the manner in which the police can collect information, but determine almost nothing regarding the use the police will make of the information they have collected. If the police collected a sample legally, are there no limits or restrictions on the length of time they will keep it or the types of tests they are allowed to do on it?
If the police will only test DNA fragments that do not reveal personal details, these questions may be unnecessary. But since the police are currently using DNA to discover family ties, and in light of the ever-growing research into predicting physical traits, diseases and other tendencies based on DNA, the common legal distinction between obtaining and storing genetic material and using it to analyze personal information can become obsolete very quickly. And in a dangerous way.
It is not difficult to imagine a situation where one day the police will be able to learn, based on DNA from a crime scene, that an unknown criminal is a man of European-Asian origin with blue eyes and possibly very muscular and with a tendency to alcoholism. Authorities will then be able to identify those with similar characteristics and investigate them or publicly disclose their personal details, even if it turns out in the end that these suspects have nothing to do with the facts. Law enforcement agencies could simply use the DNA as a starting point. They will be able to compare the information about the facial features or the body structure implied by the genetic profile and between other databases that store clusters and other biometric information. In this way, the police will be able to perform sophisticated information mining that may be invasive, and obtain personal data on very large parts of the US population.
The issues raised by the use of DNA technology for law enforcement do not only concern the possible invasion of people's privacy in the future or the possible harassment of relatives of suspects. Already today, the probability of a wrong match is greater than shown in television crime series. The comparison process is far from perfect, all the more due to the trend to test smaller and smaller amounts of DNA. The samples from a crime scene usually do not resemble pure samples taken under laboratory conditions, but contain a mixture of genetic material from several people. Analyzing these mixes is a very subjective process. One of the only empirical studies to examine how subjective the comparisons of DNA samples are has revealed alarming possibilities for error: the researchers submitted the results of DNA tests from a real case to 17 experienced analysts, and they produced significantly different reports from each other. Some stated that the accused may have been an accomplice to the crime or committed it, and some denied it altogether.
And finally, one of the particularly worrying aspects of DNA characterization for the purpose of criminal identification is the far out of proportion effect this procedure has on minorities in the population. Since in American society the proportion of blacks and Hispanics among the arrested and convicted is greater than their proportion in the population, they are more exposed than others to DNA samples, which are kept in databases at a relatively higher rate and are used more widely for matching tests for criminal identification. However, this does not mean that these groups commit more crimes. For example, studies have found that throughout the United States, the arrest rate of blacks and Hispanics for possession of marijuana is double or even three or four times greater than the arrest rate of whites for this offense, even though the rate of marijuana use among the first two population groups is not higher than its rate among whites. If police arrests of suspects are biased in terms of ethnicity, then genetic databases will be similarly biased and relatives of those minorities will have greater chances of being suspected in family match searches.
The need for stricter supervision of the collection and analysis of DNA samples by law enforcement authorities is not only a matter of laws and the policy of taking the mandatory samples and family match searches. So far, the discussion has focused on the case where a person is ordered to provide a DNA sample after being arrested or convicted. However, the police can also collect a sample of a person without his knowledge, as was done in the case of the "sleepy ripper". In such cases, the laws derived from the Fourth Amendment to the Constitution indicate contradictory and sometimes counterintuitive directions. The traditional constitutional protection does not apply to what is discarded as waste; You threw a bloodstained shirt in the trash, don't complain about your rights being violated when the law enforcement comes and takes it as evidence. But does the same logic also apply to the DNA that we unintentionally "throw away" at every corner? It is simply impossible to live in the world without shedding DNA. Given the variety of ways in which DNA can reveal intimate details about you, does its ubiquitous presence mean that you have no basis for a complaint that the police picked up a drink can you threw away in an attempt to find a match between your DNA profile and the CODIS records or store information about you in a database Or in some data sheet?
Forensic detection hidden from view
What should be done to protect the right of the innocent to privacy while the use of DNA for law enforcement is becoming more and more prevalent? It seems reasonable to expect that public opinion will curb the abuse that the government may do of its right to sample DNA from suspects and store it. However, almost every aspect of criminal identification using DNA may be done, and it is indeed done, in private rooms, with almost no public transparency. Researchers take samples from subjects without their knowledge. New technologies used by law enforcement agencies to analyze samples are almost always implemented without official reporting. Re-testing of old samples using new methods is done without prior notice and without authorization by law. Even the government research testing the effectiveness of DNA sampling and analysis methods is not open to real scientific peer review. For example, when a group of more than 40 well-known scientists and academics (full disclosure: I was one of them) published a letter in the journal Science requesting controlled access to the national database of DNA samples to verify the correctness of the government's claims regarding the statistical tools used to determine The prevalence of DNA profiles, the FBI rejected the request outright. The FBI has also threatened to withhold access to the national database from US states that allow prosecutors to request permission to search a government database to find the real culprit.
The problems associated with the establishment of extensive genetic databases are only exacerbated by the fact that the industry stands to gain financially from the unbridled adoption of these methods by police and law enforcement agencies. Commercial companies produce the DNA sampling kits, the devices used to test them and the software used to decipher the results. There are private parties who profit every time a new law is enacted for mandatory sampling or a new search technique is approved, and especially when it comes to laws for mandatory sampling of detainees, following which demand is expected to increase in every police station in the US. It is no coincidence that some of the most vocal supporters of the use of genetic fingerprinting are employees of lobbying firms looking out for the interests of their clients, many of whom were previously employed by government laboratories. "Gordon Thomas Haniwell", for example, a company representing Life Technologies, maintains a website dealing with legislation seeking to "advance DNA sampling programs", and one of the most popular training courses for analysts employed by law enforcement is funded by Promega, a private technology corporation that deals in DNA testing .
Name, address, cheek area
The steadily expanding use of DNA forensics is not limited to taking samples from suspects and searching for family compatibility and is expected to be applied in other areas as well. Those serving in the US military are already required to provide DNA samples today, although most police officers are not required to do so for some reason. It may soon be acceptable to request a DNA sample in order to receive a reward that requires accurate identification. The government may one day require a DNA sample when applying for a student loan, accepting a government job, or receiving payments from National Insurance or health services. And it is possible that one day the tests will reveal more sensitive personality traits.
Some government officials and policy analysts have proposed establishing a database of the entire population, to which each citizen would contribute their sample on the day they were born. Lawyers representing victims of crime and members of law enforcement agencies point out that a nationwide database that encompasses the entire population will serve as a useful tool in the fight against crime and in solving crimes. Even civil rights activists admit that, despite the fear of invasion of privacy, a database where the DNA samples of the entire population will be stored may be the only way to ensure fairness and accuracy in DNA forensics.
Nowadays, in the age of the Internet and Google, where it is possible to check credit data immediately, and routine searches of the body and luggage are conducted at airports, at the entrances to buildings and schools, it is likely that our genetic code will soon become another currency passed to the merchant that we pay with for a safer society. But as thin as the dividing line sometimes seems, the American Constitution has always distinguished between things that the government may ask the individual to do and things that it may force him to do.
The Supreme Court did not challenge the right of the police to ask what a person's name is, but also ruled that the constitution prohibits the police from arresting him if he refuses to answer this question when there is no reasonable basis to suspect him of a crime. A threshold was also set for taking fingerprints: the US does not have a nationwide program for the mandatory collection of fingerprints to fight crime. Therefore, a universal database of DNA samples seems to jurists to be clearly unconstitutional. But if every means but a database of the entire population is at stake, what is the best way to use this powerful forensic tool?
In Britain, this question was recently answered, with the approval of the "Law for the Protection of Freedoms". This law requires the physical destruction of DNA samples taken from arrestees, which until now was usually kept for a hundred years, and requires the deletion of the records of innocent people from the database after a certain period of time. The USA would do well if it also initiated similar legislation as well as laws that would require testing the effectiveness of the use of genetic databases for investigating crimes and if it defined rules to limit the use of biological samples collected by law enforcement authorities.
Furthermore, the government must prohibit family compatibility searches that may cast suspicion on innocent people whose only crime is family kinship with some criminal. At the same time, it must allow access to the genetic databases to professionals qualified to assess whether the state is misusing the large collection of data it possesses. Access to government databases should also be allowed for defense attorneys, to enable them to prove the innocence of a registrant, as well as unbiased experts in the field of statistics and population genetics, who can gauge the accuracy of the databases. There is also a need for laws that will unequivocally clarify which genetic characterizations will be permitted and which characterizations will be prohibited. It is possible, for example, that identifying physical features or personality traits of a suspect would be considered unacceptable in a society that values civil rights.
And finally, it seems to me that the original obligation enshrined in the constitution to protect against government intrusion into the lives of innocent citizens should be adhered to and the taking of genetic samples indiscriminately from any detainee should be prohibited. I suggest this not only out of concern for individual rights, but also out of a desire to keep the community safe. The many resources invested in collecting DNA samples from arrestees and storing them should be channeled to fill the great shortage of forensic investigators and laboratory technicians. Emphasis should be placed on collecting evidence and increasing the proportion of crime scenes examined, since currently evidence is collected from only 10% to 20% of the most serious crime scenes.
Before the government allocates more funding to increase the database of citizens' DNA samples, it should be required to report to the public in detail about the successes recorded so far. Millions of genetic profiles have been accumulated to date, but no one knows how many arrests have been made thanks to the information collected, much less, how many convictions have been obtained as a result and for which crimes. Has the right to privacy been violated in cases of second degree murder or simply during an arrest for possession or use of marijuana? Before we invest more resources and further damage individual freedoms, we must demand and receive real accountability, and not just anecdotal case studies, regarding the price that taxpayers and society as a whole have paid so far due to the huge investment in collecting DNA samples and storing them.
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on the notebook
Erin Murphy, a law professor at the New York University School of Law, is an expert in the use of DNA samples in criminal investigations. Her research focuses on technology and privacy protection in the criminal justice system, with a special emphasis on street crimes.
in brief
The police use of DNA samples did not endanger privacy to a great extent initially. But the practice of collecting the samples expanded and today DNA is also taken in the US from people who are arrested on suspicion of non-violent offenses and from others who have been arrested but have not yet been charged.
The use of DNA samples is becoming more and more sophisticated, with the police adopting data search methods that make it possible to find even a partial match to a DNA profile from a crime scene - a procedure that could place an entire family at the center of a criminal investigation.
The US Supreme Court will ultimately decide whether a person's arrest is sufficient grounds for the police to demand a genetic sample from him. A variety of legal measures are needed to protect citizens from possible misuse of large-scale genetic databases.
More on the subject
The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in Forensic DNA Typing. Erin Murphy in Emory Law Journal, Vol. 58, no. 2, pages 489-512; 2008.
Relative Doubt: Familial Searches of DNA Databases. Erin Murphy in Michigan Law Review, Vol. 109, no. 3, pages 291-348; December 2010.
