DNA databanks maintained by law enforcement agencies contain vital information about convicted felons. But should those databases contain information about those who have never committed a crime? Or about you and me?
Investigators pan the crime scene with methodic precision. Donned in latex gloves, they dust for fingerprints, tweeze tiny hair fragments from the carpet, and scrape blood samples from the wall. The evidence is then whisked to the forensic laboratory where scientists search for the DNA code that they hope will identify the culprit.
You can dispute the charges, fabricate an alibi, and flee from justice. But you can not deny your DNA, the master molecule of life found within every human cell.
Little more than a decade has passed since DNA evidence first was admitted in a criminal case in the United States. In that short time, forensic DNA technology has progressed through some three generations of improvements, according to David Kaye, a professor of law at Arizona State University who studies forensic evidence issues.
As the technology has improved (and the cost associated with it has decreased), every U.S. state has passed legislation that requires DNA samples be collected from people convicted of certain crimes. A small portion of genetic information from each sample is coded to create what is commonly referred to as a DNA profile. That information is then stored electronically, and the original biological sample is also retained.
The reach of this technology expanded significantly in 1994 with passage of the DNA Identification Act. The law authorized the Federal Bureau of Investigation to establish DNA indexes for people convicted of crimes, samples recovered from crime scenes, and samples recovered from unidentified human remains.
In October 1998, the FBI activated its Combined DNA Index System (CODIS), which linked its national index to law enforcement DNA databases in 41 states. The combined system includes more than 600,000 genetic profiles of convicted felons and DNA samples left behind at the scenes of unsolved crimes. Law enforcement officers looking for the person who might have left blood, semen, or other biological evidence at a crime scene can search CODIS to determine if a known offender matches the DNA evidence. These DNA profiles can also link crime scenes together, possibly identifying serial offenders.
“In a very short time a new technology came onto the field and matured. There were growing pains in that process, and there are still problems sometimes in the way evidence is presented in court. But problems with the technology have largely been resolved,” says Kaye, acting director of the Center for the Study of Law, Science, and Technology at ASU.
The fact that technological advances have made it relatively easy to create and utilize massive DNA databases for law enforcement purposes has raised some important questions. Perhaps the most obvious is whose DNA should be included in these databases—only convicted felons?
What about those convicted of lesser crimes?
In recent years, law enforcement leaders, such as New York City Police Commissioner Howard Safir, have proposed expanding law enforcement DNA databases to include everyone arrested.
The more expansive these databases become, the more nervous some people get. It is one thing to require convicted felons to give up some privacy in the public interest. It is quite another to keep on file the DNA of a group of citizens who may never be convicted of a crime.
“I’m most nervous about situations where the law enforcement department under consideration has a strong and documented history of discrimination problems. The New York City police department is one example,” says James Strick, an ASU assistant professor of biology whose teaching and research focus on the social, political, and ethical implications of modern biomedical research.
The simple question of who can lead to much more complex issues. The concerns being raised can partly be blamed on the so-called genetic mystique, the idea that who we are and what we are destined to become is determined exclusively by our genes.
On a higher level, these concerns are based on the fact that our genes do reveal a great deal of information that most people prefer to keep private. The Fourth Amendment guarantees U.S. citizens protection from unreasonable search and seizure. Yet, one could ask, what search could be more invasive than an exploration of one’s very genes?
This is precisely why the design of a DNA databanking system must strike a balance between crime control and individual liberties. Devising and operating a system that advances law enforcement while respecting legitimate interests in personal privacy requires tradeoffs, says Kaye. The ASU professor currently is drafting guidelines for such a system.
“Nobody questions whether there is a public interest here,” agrees Strick. “The question is, is there an interest of civil rights that outweighs it?”
Imagine a system that places identifying DNA of all newborns and all immigrants and visitors to the United States in a central location. Such a system would have the greatest power in linking individuals to crimes where DNA evidence is found. Being universal, it would also avoid stigmatizing certain individuals or groups.
“But it would depart radically from a tradition that has eschewed national identity cards and compulsory fingerprinting for years,” Kaye says. “Numbers, photographs, and fingerprints seem tame in comparison to DNA samples, which could reveal a predisposition to certain diseases and behaviors.
“Even if universal DNA databanking for law enforcement use were economically and technologically feasible—a prospect that may soon be realized—this country would hesitate before demanding its citizens to donate their DNA to a massive, centralized databank.”
Another concern, which a universal database would only amplify, is the potential for misuse of genetic information.
“A universal identity system puts all of us at the same risk of discrimination, because now all of us are to a greater extent controlled and monitored by the state than we were before,” notes Strick.
Moving beyond the issue of who, the concern for misuse of genetic information forces policy makers to tackle the issue of what. Exactly what type of information should be extracted from DNA samples for use in this particular database?
DNA profiling can certainly be completed to a limited extent, so as to merely offer positive identification of a particular individual, much like traditional fingerprints. But the DNA sample itself also has the potential to reveal things that people have a legitimate expectation of keeping private, such as personal health information.
Measures should be taken to ensure that there will be no misuse of genetic information, that there will be no access to information that is not necessary for law enforcement purposes. The best way to protect that information would be to destroy the biological samples of DNA once the electronic data have been generated. What would be left would be analogous to traditional fingerprints since the DNA profiles would only reveal identifying traits.
“Disposing of the samples would pretty much put the privacy concerns to rest,” maintains Kaye.
Easy enough, problem solved. Correct?
So far, however, that is not being done in any law enforcement databank. Historically, officials have reasoned that samples are retained so they can be re-coded when DNA profiling technology inevitably improves. Kaye asserts this argument is much weaker today than when law enforcement databanks were first established. Who could have predicted then that the technology would so rapidly mature to the point where it is not necessary to retain the DNA samples?
If anything is clear, it is that our powers in genetic research are growing much faster than society’s ability to immediately understand the information or its potential impact. As a result, we tend to question whether others will use that information responsibly.
Whether or not serious abuse of genetic information will occur remains to be seen. Limiting whose DNA profiles are included in law enforcement databases and disposing of the biological samples once profiling for identification has been completed, says Kaye, would put a great deal of the privacy concerns to rest until more of the answers reveal themselves.
—Jessica McCann
