“A DNA Fingerprint Is Nothing More than a Long List of Numbers”

In "Our DNA Is Our Blueprint", I suggested that the Supreme Court would be wise to avoid describing DNA as the equivalent of a building’s blueprint or a medical history. The Court also should be wary of efforts to dismiss a DNA identification profile as a mere “string of numbers” with no further implications. Brief for the United States Amicus Curiae Supporting Petitioner, Maryland v. King, No. 12-207, Jan. 2, 2013, at 2. According to the government:

The analysis of the genetic material ... reveals nothing private about the arrestee at all. ... A DNA fingerprint is nothing more than a long list of numbers ... they do not encode protein sequences — that is, they do not “code” for physical traits, propensities, or susceptibilities. ... A DNA fingerprint therefore yields no private information at all. ... In short, the number string does not give rise to any inference about the personal information or characteristics of the person to whom it uniquely belongs. Obtaining those numbers therefore does not meaningfully invade an arrestee's privacy.

Id. at 19–22.

Here, I demonstrate that inferences from a CODIS profile to facts that individuals might regard as private are not inherently impossible. Whether this fact weighs heavily in favor of the individual is, of course, a further question. Parts I and II probe the government’s contention that obtaining “the number string” “does not meaningfully invade an arrestee’s privacy” because there is “no private information at all.” Part III offers a few thoughts on what follows if the government is wrong about the information content of the DNA sequence data.

I. Strings of Numbers

A social security number is a string of digits, but until 2011, the string contained an area code based on the state in or from which the application for a number was made. For example, a pre-2011 number starting with 520 refers to an application from within Wyoming. Social Security Administration, Social Security Number Allocations, Jan. 2, 2013. This information might not seem intensely private, but the information content is not zero.

Today’s social security numbers are a random nine-digit string (with some possibilities excluded). Social Security Administration, Social Security Number Randomization, Nov. 29, 2012. CODIS profiles are different in at least three respects. First, parts of them could be close to (and therefore correlated with) disease-causing loci.  However, correlations that permit accurate inferences about health status from the profile itself are not known. See Scientists Brief on CODIS Loci: Q & A, Jan. 3, 2013.

Second, in the future some parts of the profiles might be shown to play a causal role in gene regulation, affecting the quantity of a protein produced in a cell. Id. Indeed, one CODIS locus has been shown to participate in a regulatory system, but this does not mean that it is like a medical record. Brief of Genetics, Genomics and Forensic Science Researchers as Amici Curiae, Maryland v. King, No. 12-207, Dec. 28, 2012. The government’s brief suggests that if this situation were to change, the Fourth Amendment balancing would need to be re-examined. That also would be the case if correlations with more predictive power were to be discovered.

Finally, unlike numbers assigned by the Social Security Administration, a new CODIS profile does not emerge from a random-number generator every time a child is born. Rather, the child’s profile is a mixture of pre-existing numbers. A child inherits a random half of the father’s numbers and a random half of the mother’s numbers. This aspect of sexual reproduction has immediate implications for privacy.

II. Inherited Numbers Carry Some Information

The fact that seemingly empty numbers are inherited via sexual reproduction complicates the privacy analysis in several ways. It means that siblings will have numbers that, on average, are closer to one another than to unrelated persons and that a parent and child will have at least one of every two pairs of numbers in common. Consequently, a curious database administrator could compare profiles of  pairs of arrested individuals to draw inferences about possible genetic relationships. Most inferences of specific relationships would be wrong—for example, many nonsiblings would show more similarities in their profiles than true siblings would. Nevertheless, many pairs could securely be said not to be parent and child.

Usually, these possible inferences would be unimportant. Most people are not my parents. But suppose a candidate for sheriff were a strong challenger in an upcoming election, and she, her husband, and her adult child (born during the course of the marriage) were arrested. The CODIS profiles could be used for parentage testing. A finding of nonpaternity would be proof of the candidate’s marital infidelity. The fact that “[a] DNA fingerprint is nothing more than a long list of numbers” does not mean the “fingerprint” is devoid of socially significant information.

III. Does It Matter?

The government’s brief points out that the CODIS system makes such abuses difficult to accomplish at the level of the national database (NDIS). See Brief for United States, at 19–20:

DNA identification profiles stored by CODIS — as Maryland law contemplates — have no identifying information associated with them. CODIS contains the number-string itself and information about the laboratory that generated it; only in the event of a “hit” in the database can the record ultimately be traced back to a particular arrestee. See CODIS and NDIS Fact Sheet.

But the state or local laboratory that prepared the profile does not need to trace it “back to a particular arrestee.” Someone there already knows to whom the profile belongs. Moreover, the hypothetical does not involve NDIS. It involves a corrupt sheriff intent on learning the CODIS profiles of known individuals from samples taken by his officers.

A more convincing response is that unusual, unauthorized, and unlikely privacy abuses are not weighty enough to overcome strong government interests in collecting biological material. Maryland retains the original DNA samples. It could test them for a large number of genetic conditions. Urine samples in drug testing programs could be examined for disease-related information. As the government points out, these possibilities do not render the collection and statutorily limited analysis and use of the material unconstitutional. Id. at 23-24.

The government goes too far, however, when it suggests that the risk of abuse is “irrelevant.” Id. at 24. The Court should not blind itself to the possibility of abuses of power, of bad faith, and of temptations to cut corners. But neither should it mistake the possible for the probable. Unless the possibilities for abuse are substantial, they should not invalidate a program that truly serves strong state interests.

“Our DNA is Our Blueprint”

The brief for Alonzo Jay King, in the arrestee DNA sampling case, Maryland v. King, correctly maintains that "The collection of an individual's DNA raises profound privacy concerns." Respondent's Brief, at 45. It then elaborates that

Our DNA is our blueprint: an individual's DNA contains not only deeply personal information about the subject's medical history and genetic conditions, but also information that can be used to make predictions about a host of physical and behavioral characteristics, ranging from the subject's age, ethnicity, and intelligence to the subject's propensity for violence and addiction. See, e.g., Center for Genetics Education, The Human Genetic Code—The Human Genome Project and Beyond (2007), tinyurl.com/cgegenome; Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. Med. & Ethics 153, 158 (2006).

Id. at 45-46. Regardless of how the Supreme Court decides the case, the Court would be ill-advised to uncritically repeat these assertions about (1) "our blueprint" and (2) "age, ethnicity, ... intelligence, ... violence and addiction."

I. "Our Blueprint"

Does the human genome tell us as much about an adult human being as the blueprint of a building tells us about the building? In the preface to a recent book cited in the brief, Harvard University population geneticist Richard Lewontin argues that the metaphor of “blueprints” is oversimplified if not misguided: “we expect genes ‘for’ not only skin color and eye shape but also intelligence, disease, and musical ability. [But] it is an error to suppose that the DNA sequence of an organism predicts its total nature and life history.” Another contributing author writes that “the genes most of us envision inside us, calling the shots and determining our characteristics, are myths.” A blueprint determines the height of a building, but genes (not yet known with any exactitude) give a range of response for the height of human being.

II. Predicting Age, Ethnicity, Intelligence, Violence, and Addiction

Can DNA sequences “be used to make predictions about ... age, ethnicity, and intelligence [and] violence and addiction”? Absolutely. So can Ouija boards and horoscopes. But the two authorities cited in the brief do not maintain that such predictions are any good. The Australian report, Center for Genetics Education, The Human Genetic Code—The Human Genome Project and Beyond (2007), cautions that “determination of the entire DNA sequence contained in the human genome will not enable geneticists to look at a person’s DNA sequence and predict everything about their appearance, behaviour and other characteristics.” Id. at 6. It does not mention inferences about age, ethnicity, intelligence, violence, or addiction.

The other publication, by Rothstein and Talbott, does mention some of these characteristics, but only as the subjects of possible—and possibly specious—“claims.” These commentators wrote that “[i]t is likely that within a short period of time there will be claims of the ability to make behavioral genetic predictions about such matters as sexual orientation, intelligence, addictive behavior, musical ability, and temperament.” Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. Med. & Ethics 153, 158 (2006). It now is seven years since they made this prediction. Have any new claims been made? More to the point, have they been confirmed? Claims are cheap. Proof is hard.

Beliefs also are cheap, in the sense of being easy to acquire. Once acquired, they can be difficult to dislodge. A Supreme Court opinion that reinforces the popular dogma of genetic determinism would be irresponsible—and unnecessary. In upholding as constitutional the compulsory sterilization of “a feeble minded white woman,” the Supreme Court infamously wrote that “[t]hree generations of idiots are enough.” Buck v. Bell, 274 U.S. 200, 207 (1927). One such opinion was enough. The genome is not a medical history. No one can tell from my DNA what diseases I have had, how much I weigh, or how high my blood pressure is. Identical twins rarely die of the same disease. They have a less than 50/50 chance of having the same common diseases.

This is not to deny that the genome contains substantial information. Some of it is highly predictive or diagnostic of some conditions, like sickle-cell anemia. That alone is sufficient to raise “profound privacy concerns.”

References

• Jordana T. Bell & Tim D. Spector, A Twin Approach to Unraveling Epigenetics, 27 Trends in Genetics 116 (2011) 
• Genetic Explanations: Sense and Nonsense (Sheldon Krimsky & Jeremy Gruber, eds. 2012)

Balancing or Categorizing in Maryland v. King

The arrestee DNA case of Maryland v. King offers the Supreme Court the opportunity to address a fundamental issue of Fourth Amendment jurisprudence. The Amendment prohibits "unreasonable searches and seizures." According to the briefs of Maryland and the United States, the established mode of ascertaining reasonableness is an ad hoc "totality of the circumstances" balancing of interests. The major individual interests would seem to be in keeping information about one's identity and presence at certain locations private, and the dominant government interests are in investigating and solving cases.

These briefs rely on cases that balanced state and individual interests related to searches in limited circumstances—to create or mark the bounds of new, categorical exceptions, or to subject probationers and parolees to searches without a warrant or any well-defined categorical exception to the warrant requirement. Like most lower court cases on arrestee DNA sampling, the briefs do not explain why balancing should apply to DNA testing before conviction. Rather, they seem to assume that the reasonableness of a search flows from an immediate balancing of interests.

The competing, and more traditional view, presented in Alonzo King's brief, is that it takes a categorical exception to permit a search without a valid judicial warrant. This brief argues that DNA sampling does not fall under an established exception to the general requirement of a search warrant and that ad hoc balancing is not the norm in determining the reasonableness of a search.

A critical case in this regard is Samson v. California, 547 U.S. 843 (2006). There, the Court held that parolees had no protection from warrantless searches to uncover evidence of crimes. It did so without purporting to create a new exception to this requirement. Moreover, it is hard to discern a satisfactory basis for such an exception. All the previous exceptions rest on the presence of a government interest above and beyond the discovery of evidence that would be useful in a criminal case against the target of the search (such as the government's role as an employer in maintaining a drug-free workforce), an unusually pressing need to dispense with a warrant (as in a limited investigatory stop to acquire information about what appears to be an imminent or ongoing crime), or government conduct that is a milder invasion of personal liberty or privacy than a canonical search or seizure of the person (such as a limited pat down of the individual's outer clothing). Writing for the Samson Court, however, Justice Thomas reasoned that because parole is "an established variation on imprisonment" with an express condition that the parolee is subject to warrantless searches, "petitioner did not have an expectation of privacy that society would recognize as legitimate." Id. at 852. Such language normally means that government conduct does not rise to the level of a search. If Samson had no reasonable expectation of privacy, then there was no search under Katz v. United States, 389 U.S. 347 (1967), and hence no need to create an exception to the rule that a search is presumptively unreasonable without a warrant  Thus, at least one prominent commentator (Kerr 2012, p. 318) reads Samson as eliminating the per se rule rather than creating a new exception. I tend to think that the Court is simply vacillating, with no guiding principles, between the two theories of reasonableness—the one that starts with warrants and the more open textured one advanced by Maryland and the federal government.

There is a rich literature on these two theories, but one would not know this from perusing the briefs. Certainly, some Justices have questioned the preference for warrants for years. The King case could test whether their doubts have spread to a majority of the Court, leading to a more flexible but less predictable framework for applying the Fourth Amendment across the board.

References

• David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. No. 4 (forthcoming 2013)
• David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Discourse (forthcoming 2013)
• Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012)

EEOC Stays Mum on GINA

In “an informal discussion” that it hopes “is helpful,” the Equal Employment Opportunity Commission (EEOC) has given an apparently negative answer to the following question:

Are DNA sequences that cannot be used and are not acquired by an employer to obtain medically relevant information on an employee “genetic information” as the term is used in the Genetic Information and Nondiscrimination Act of 2008 (GINA)?

The question came from the Scientific Working Group on DNA Analysis Methods (SWGDAM), which requested an “Informal Advisory Opinion ... on the GINA exemption for forensic laboratories.” GINA makes it generally illegal for “an employer to request, require, or purchase genetic information with respect to an individual.” § 202. It defines “genetic information” as “information about [an] individual’s genetic tests.” § 206(A)(i). Finally, it defines a “genetic test” as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.” § 201(7)(A).

Congress, in its finite wisdom, devoted almost no attention to the problem this law could create for police departments, laboratories that perform DNA testing, and manufacturers of reagents and materials used for DNA testing. Because personnel at these organizations can—and have—contaminated samples or equipment with their own DNA, it would be helpful to have DNA identification profiles from all employees who might possibly be a source of foreign DNA on record. A check of the records could the confirm or exclude any suspicions of such employee contamination. And even without a database, in a specific case, an employer might have good reason to ask a particular employee for a DNA sample to check whether that individual’s DNA seems like it could have affected a DNA test.

What Is a "Genetic Test"?

This situation could be resolved most simply by interpreting “genetic test” in light of the express Congressional goal of preventing employers from using health-related DNA sequence information to disadvantage applicants for jobs or employees. Because the DNA identification profile does not reveal such information and is not being used for such a purpose, this biometric identifier should not be considered a genetic test under Section 201(7). It is, of course, "an analysis of human DNA," but does it "detect[] genotypes, mutations, or chromosomal changes"? Current STR testing does not detect "genotypes" in the sense of alleles of genes. It does detect "mutations" inasmuch as all genomic variation comes from changes in base-pair sequences, but that cannot be what Congress meant by "mutations." Such a reading would render the preceding word, "genotypes," superfluous. Perhaps "mutations" is in the list to cover sequences that do not cause disease but have predictive power as a result of linkage disequilibrium, or perhaps it refers to somatic mutations that can produce diseases without altering intergenerationally inherited genotypes. Finally, "chromosomal changes" probably refers to breaks in chromosomes or changes in their number (aneuploidy), since these produce medical conditions in children.

Rather than focus on what Congress intended to accomplish with the words in the bills it passed, however, the EEOC passed the buck to a scientific body with no known legal expertise. The EEOC letter reads as follows: “we coordinated closely with experts at the National Human Genome Research Institute (NHGRI) ... who confirmed that forensic DNA analysis constitutes a genetic test.” The unnamed experts at NHGRI are no doubt whizzes at understanding how genetic and genomic research is conducted, but if the EEOC wanted to know whether scientists call forensic DNA profiling "genetic testing," all it had to do was glance at NHGRI’s website. A webpage states that “The term ‘genetic testing’ covers an array of techniques including analysis of human DNA, RNA or protein. Genetic tests are used as a health care tool to detect gene variants associated with a specific disease or condition, as well as for non-clinical uses such as paternity testing and forensics.”

But what should we make of the tautology that forensic DNA testing of human DNA tests human DNA? This issue is not how scientists use the words "genetic testing," but what usage best fits the structure and function of GINA. The fact that scientists define “genetic testing” one way for the purpose of medical research or diagnosis does not mean that the members of Congress used the words the same way for the purpose of combating a perceived problem in the workplace. Cf. Nix v. Hedden, 149 U.S. 304 (1893) (refusing to follow botanical definitions in interpreting an Act of Congress establishing different tariffs on fruits and vegetables).

What Is the CODIS Laboratory Exception and How Did It Get There?  

So what reason is there to believe that Congress intended to use "genetic tests" to refer not just to the tests "used as a health care tool," but also to those used for nonclinical purposes? Beyond invoking the impressive five-letter acronym NHGRI, the “informal discussion” adds that “the fact that Congress included an exception specifically permitting forensic DNA analysis suggests that it constitutes genetic testing that would be prohibited in the absence of the exception.” However, other explanations for this text are possible. As I suggested in an essay entitled GINA's Genotypes, 108 Mich. L. Rev. First Impressions 51 (2010), “most likely, individual legislators may not have had any view about the distinction between genomic and genetic information, but perceived no reason not to include the quality-control exception of section 202(b)(6) for laboratories conducting law enforcement and human remains testing.” If that is correct, then it would be questionable to read the exception as circumscribing the unresolved definition of genetic testing--especially considering the haphazard manner in which the exception came into existence.

Section 202(b)(6) of GINA, 42 U.S.C. 2000ff-1(b)(6), allows an employer to acquire genetic information

where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and requests or requires genetic information of such employer's employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

On April 25, however, the House suspended its rules and passed a bill that differed from the one reported out of committee. The modified bill added (among other things) an exception for any kind of genetic analysis

(6) where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory, includes such analysis in the Combined DNA Index System pursuant to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132), and requests or requires genetic information of such employer's employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

The belatedly modified bill, approved by the House without committee consideration or floor debate on the amendment, went to the Senate. The Senate adopted the bill (with a few more amendments). This Senate version made no change to subsection 6.

The House then took up the Senate version of the original House bill. No committee of either house of Congress had ever discussed subsection 6, and there was not a word from any member about it. But somebody noticed one problem with it, for an eleventh hour change was made. House Concurrent Resolution 340 introduced the "technical amendment" of expanding the exception beyond laboratories that submit profiles for inclusion in CODIS databases. Representative George Miller explained:

[W]ith respect to the Department of Defense Labs, in our current bill, section 202(b)(6) and section 205(b)(6) of H.R. 493 provides an exclusion for an employer to conduct DNA analysis for law enforcement purposes as a forensic laboratory, which submits analyses to the Combined DNA Index System, known as CODIS, if the employer only uses that analysis of DNA identification markers for quality control to detect sample contamination.

However, we recently learned that the Armed Forces DNA Identification Laboratory, AFDIL, of the Armed Forces Medical Examiner System, which identifies soldiers' remains, would not be included in this exclusion because it does not submit DNA to the CODIS system.

It was not our intent to prevent the Armed Forces, AFDIL, from using DNA analysis for human remains identification. This technical change would allow them to continue their mission.

Cong. Rec., May 1, 2008, at H2982, 110th Congress.

On May 1, 2008, the House adopted the amended bill. The remarks about allowing AFDIL to continue analyzing DNA to identify the remains of soldiers, do support the EEOC’s view that Congress thought it needed to have Section 202(b)(6) because the definition of “genetic test” in Section 201(7) was so broad as to reach forensic testing of medically uninformative loci. But if the only purpose of the "technical" change to Section 202(b)(6) was to allow AFDIL to stay in business, then the 202(b)(6) exception applies only to AFDIL and the previously defined group of forensic laboratories that submit samples to the CODIS system. Other forensic laboratories have no safe harbor.

Years ago, I wrote the staff of Representative Slaughter, who fought for 14 years for GINA’s passage, for information on the process that led to the belated insertion of an exception into the bill after the House already had approved of it. I also wrote Representative Miller’s office (twice) but received no reply. Representative Slaughter’s staff provided no real answer either but referred me to Kathy Hudson, then the director of Johns Hopkins University’s Center for Genetics and Public Policy (and now NIH’s Deputy Director for Science, Outreach, and Policy). Dr. Hudson indicated that the provision was added because the Hopkins Center learned that forensic laboratories routinely collect employee DNA for “quality assurance.” She did not explain why this rationale does not also apply to employers such as police departments, whose officers come into contact with biological traces at crime scenes, and manufacturers of supplies used in forensic DNA profiling, whose employees’ DNA might lead to unwitting contamination in the laboratory.

In short, despite 14 years of introducing federal bills to stop employers from using “genetic information” to the detriment of employees and an explosion of state law on “genetic discrimination,” it appears that no one inside (or contributing to) the federal legislative process had a clear idea of the scope of the law-enforcement issues that GINA might create.

Where Does the EEOC Stand? 

Rather than attempt to fill this gap with meaningful, if informal guidance, the EEOC threw up its hands, writing that

Interpreting GINA to allow manufacturers of supplies used in DNA forensic analysis to acquire genetic information under the DNA testing exception might well constitute a reasonable interpretation of the statutory exception, but the issue you have identified was not raised during the public comment period on the regulation implementing Title II of GINA. Nor is there any legislative history to indicate that it was contemplated during the drafting of the statute. The Commission has not taken a position on this issue.

Overall, the letter seems to state that the Commission has adopted the broad and mechanical definition of "genetic test" by reason of its consultation with the scientists or administrators at NHGRI but that it remains willing to contemplate the possibility that the exception for some forensic laboratories and AFDIL is broader than its words suggest.

The letter concludes that “this ... discussion ... does not constitute an official opinion of the EEOC.” What. then, is it? An unofficial opinion? An official nonopinion? A nonofficial nonopinion? It hardly matters. The EEOC's analysis of the question posed is of little use to anyone who thinks seriously about GINA. If and when an employee--or the EEOC--sues a police department or a manufacturer for a practice that Congress clearly had no interest in preventing, one can only hope that the courts will supply a more thoughtful and complete analysis.

Florida Judge Disqualified, But Not for His Writings on Fingerprints

"Florida Trial Court Excludes the Opinion of a Latent Fingerprint Examiner — Maybe" (Oct. 31, 2012) described a vague "order" of Miami-Dade Circuit Court Judge Milton Hirsch. This order, embellished with some poetry, stated that when the time comes in a burglary case, the judge would exercise his “common sense” to fulfill his “gatekeeping function” for scientific evidence under Florida law to prevent “excessive and unsupportable claims made by fingerprint examiners.” Now that order--whatever it may have meant--has been vacated.

On January 16, 2013, the Florida District Court of Appeal ruled that Judge Hirsch should have disqualified himself rather than issue his earlier order. The court of appeal emphasized that it was not disqualifying the judge because he had written on the subject of scientific evidence and fingerprints. The problem was that in two other cases Judge Hirsch had suggested to prosecutors that that he would grant a motion to disqualify him "because of his preconceived opinions on the subject of fingerprint evidence."

These statements, the court of appeal concluded, "certainly would cause a reasonable person to question the judge’s ability to fairly and impartially adjudicate the issues surrounding the reliability and admissibility of fingerprint evidence in a judicial proceeding." This is not the first case in which remarks from Judge Hirsch led to his removal from a case he was trying.

Thanks to former Arizona Superior Court Judge Ronald Reinstein for directing me to this latest opinion in State v. Borrego.

"Scientists' Brief" on CODIS Loci: Q & A

On November 9, 2012, the Supreme Court voted to review a case posing the following question: “Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?” In Maryland v. King, the state’s supreme court concluded that the protection against unreasonable searches and seizures forbids the state from collecting DNA from an individual whose true identity can be established with ordinary fingerprints. On December 28, 2012, the Supreme Court received a Brief of Genetics, Genomics and Forensic Science Researchers as Amici Curiae. Below are several questions and answers about the brief.

Who contributed to the brief?

I did, and Hank Greely was an additional author. The scientists who participated in the writing are all active and distinguished researchers at medical schools (including Harvard, Yale, and Johns Hopkins) or universities (including Duke, Penn State, and Kings College, London). They include a former president of the American Society of Human Genetics, a past president of the American Board of Medical Genetics, Fellows of the American Association for the Advancement of Science, and members of the Institute of Medicine and the American Academy of Arts and Sciences.

Why did these law professors, medical and statistical geneticists, and molecular biologists submit an amicus brief?

The brief is intended “to inform the Court of the possible medical and social significance of the DNA data stored in law enforcement databases.” (P. 1). Advocacy groups, legal scholars, and some judges have asserted that the small number of features used in law enforcement DNA databases are predictive of health status (or soon will be). The brief attempts to clarify this issue.

Which side does the brief support?

The brief was submitted in support of neither side. It describes the nature of genetic information, the features of the genome used in law enforcement DNA databases, how those features are used in medical research, and whether they currently permit police, employers, or insurers to discern significant facts about a person’s present or future health status.

What conclusions does it reach?

Amici conclude that “[u]nlike medical genetic tests, law enforcement identification profiles have no known value for medical diagnosis or prediction of future health.” (P. 2).

That’s today. What about the future?

Amici caution that “no one can say with certainty what the future will bring, and it is possible that specific loci will be found to affect the operation of certain genes or to display correlations to disease states.” (P. 2). Nevertheless, they suggest that “it is unlikely that the identification profiles will turn into powerful medical diagnostic or predictive tools that can be used to infer disease states or predispositions by examining forensic database records.” (P.2).

Does this mean that the “CODIS loci,” as the identifying features are called, have no medical significance?

Absolutely not. The DNA sequences have been used in medical research for some 20 years to hunt for disease-causing gene mutations. They have been studied for associations with diseases and traits such as longevity. The question the brief addresses is what kind of information can be gleaned from inspecting a database record.

Doesn’t the highly publicized ENCODE Project prove that there is no such thing as “junk DNA”?

The brief contends that “debate over the fraction of the genome that is, in an evolutionary sense, 'junk' ... is orthogonal to the matter before the Court.” (P. 26). A section of the brief explains that the data sets and papers recently released from the international Encyclopedia of DNA Elements Project are important to further research into gene regulation and other matters, but they do not indicate that all DNA sequences are critical to health or other important traits. What “[t]he ENCODE papers show [is] that 80% of the genome displays signs of certain types of biochemical activity—even though the activity may be insignificant, pointless, or unnecessary.” (P. 32).

Well, how about other uses? Don’t the CODIS loci tell scientists a lot about a person’s ancestry and race?

Not really. The CODIS loci can reveal something about bio-geographic ancestry, but anthropologists and population geneticists use far more probative ancestry-informative and lineage markers to study genetic histories. That “race” is not a biological category is now well known. As for socially perceived race, “[a] CODIS profile could be used to calculate probabilities that someone would be described as Caucasian, African-American, or Hispanic, but categorical inferences would not be very accurate, and attempts to predict the census-type race of a person from a CODIS profile would seem pointless considering that apparent race already would be known.” (P. 36).

So the brief shows that there is absolutely no important information that can be deduced from a CODIS profile?

No, amici do not say that either. The brief explains that “[b]ecause children inherit all their DNA from their biological parents, the CODIS loci can be powerful tools for determining whether two people could be genetically related as parent and child. ... [T]he most powerful genetic information other than identity that the CODIS profiles contain [would be] that two people are not parent and child” or “that two people were identical twins.” (Pp. 33-34).

Where can I find the brief?

Here is a pdf. It also should appear."soon," along with other briefs, on the American Bar Association's Preview of Supreme Court cases.

Postscript: The brief and an introduction to it is published as Henry T. Greely & David H. Kaye, A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 53 Jurimetrics J. 43 (2013). The publication is available at http://ssrn.com/abstract=2403063