Reprising the Idea of a Population-wide DNA Identification Database

Talk of creating a US population-wide DNA database to identify the sources of DNA found at crime scenes began in the last century. In 1997, former Attorney General Janet Reno appointed a National Commission on the Future of DNA Evidence. 1/ At the first meeting of the Commission's legal issues working group, Commissioner Philip Reilly urged the group to study the issue. 2/ The working group submitted a report that included a discussion of "more inclusive databases" than those limited to convicted offenders. This report noted that under the law as it stood, medical research and other databases and tissue repositories could be subject to law enforcement inspection. Although it recognized that "this country would hesitate before demanding its citizens to surrender their DNA to a massive, centralized databank," the report concluded that "there is a strong case" for a national, population-wide database with rigorous privacy protections. 3/ The section of the report on "comprehensive databanking" provided the following argument (footnotes are omitted) in favor of a population-wide database:

     ...  First, the deterrent effect of DNA databanking is greatest for a population-wide database. Convicted-offender databases can deter only those offenders who have been caught and convicted for previous crimes. By increasing the probability of detection of first-time and repeat offenders alike, a comprehensive database can do much more to reduce the rate of certain crimes. And, making apprehension more certain permits the same level of deterrence with less Draconian (and costly) periods of imprisonment.
     Second, a comprehensive database avoids many problems or issues associated with offender or arrestee databanking. It obviates the need to draw some line between those offenses for which databanking is permitted and those for which it is not. It avoids any risk that police will make pretextual arrests merely to secure DNA samples. It makes it unnecessary to infer physical traits or racial or ethnic identity from trace evidence samples. Perhaps most important, it avoids stigmatizing any person or group. A comprehensive database imposes the same obligation on all racial and ethnic groups. There is a widespread perception that minorities are overrepresented in the criminal justice system in part because they are wrongfully arrested and convicted to a greater degree than whites. A universal database would help prevent wrongful convictions and arrests of minorities. When an eyewitness mistakenly concludes that the criminal was a minority member, a wrongful arrest (and conviction) can ensue. A comprehensive database would increase the probability that a minority citizen mistakenly arrested for a crime would be promptly exonerated. A readily accessible population-wide database thus would aid in preventing such arrests and subsequent miscarriages of justice.
     Third, a single national database would be more efficient than a system of over 50 separate databases of offenders or suspected offenders. From this perspective, the current system of multiple, overlapping databases represents unnecessary duplication and a waste of scarce resources. For all these reasons, a single, secure, national DNA identification database is attractive.

The report continued with a discussion of feasibility, constitutionality, and impact on personal privacy. The working group's chairman and reporter went on to publish an expanded analysis in a law review article 5/ and a book chapter. 6/ A condensed version appeared in an ABA journal 7/ and in an op-ed in USA Today. 8/ Again, the authors 9/ argued that such a database had several attractive features and speculated on the economy and constitutionality of adding identifying STR profiles to the panel of disease markers used in neonatal screening and sending only the STR data to a national law enforcement database (with no samples ending up in the hands of law enforcement).

In the early 2000s, other lawyers, scientists and politicians -- in Australia 10/ and England 11/ as well as America 12/ -- unequivocally advocated population-wide databases. This commentary appeared in leading newspapers and journals. A major theme (besides the obvious desire to maximize the crime-solving potential of DNA evidence) was that the existing, decentralized regime lacks adequate privacy protections and discriminates against those individuals with whom police have the most contact.

The issue of expanding DNA databases to include arrestee profiles, which was a more immediate topic at National Commission meetings, re-entered the national spotlight after the Supreme Court granted a writ of certiorari in Maryland v. King, 569 U.S. 435 (2013), to review the constitutionality of DNA sampling and profiling before conviction. Arrestee sampling prompted additional mention of a population-wide DNA database. 13/ In the same period, prominent successes with "familial searching" of convicted offender databases 14/ also led to comparisons to a more universal database. 15/

Most recently, the success of kinship searches in an open-to-the-public genealogy database has inspired yet another reprise of the idea. Writing in Science last month, four scholars at Vanderbilt University revived the argument that "if correctly implemented, a universal database would likely be more productive and less discriminatory than our current system, without compromising as much privacy." 16/ Given that Science affords very little space to its Policy Forum articles, it is not surprising that the legal analysis and references to previous writing in Is It Time for a Universal Forensic Database? are minimal, but some of the claims about the law cry out for more extended analysis.

To begin with, Is It Time? contends that "a subpoena is all that law enforcement needs to force those [direct-to-consumer] companies [such as 23andMe and Ancestry.com] to determine whether they have a match with crime scene data." But a subpoena duces tecum normally applies only to existing documents. The recreational genetics companies do not have a database of the STR profiles that law enforcement laboratories now produce. The power to subpoena information may not include the authority to force the companies to produce a new database of STR profiles for the benefit of law enforcement. In other words, a subpoena demanding all names of likely relatives of "John Doe, with the following STRs ..." could be met with the response that "we do not have any STR profiles in our records."

Presumably, Is It Time? contemplates crime laboratories' generating their own genome-wide SNP-array data on crime-scene samples. Then a subpoena could ask for the names of all customers with large haploblocks in common with a crime-scene sample. After the Supreme Court's decision on extended cellphone tracking in Carpenter v. United States, however, it is fair to ask whether a subpoena as opposed to a search warrant based on probable cause must be honored. After all, if the subpoena leads to an individual whose genome-wide-array data are in the commercial database, the police will have acquired information on that individual that is far more threatening to personal privacy than is the more strictly identifying information that comes from an STR-profile match.

Second, Is It Time? assumes that a subpoena is all it takes to acquire medical records from a health care provider, so that a population-wide database would enhance overall privacy by reducing the incentive police have for accessing medical records through subpoenas. Before Carpenter, this was a plausible assumption. 17/ After Carpenter, it is easier to argue that these records are the kind of information that cannot be compelled without a judicial warrant based on probable cause.

Third, Is It Time? assumes the constitutionality of a population-wide database with profiles retained for a great many years (perhaps starting from birth) for no other reason than the value of the database for criminal or missing-person investigations. Whether this premise is true is far from obvious. 18/ There is an argument for the constitutionality of such a system, 19/ but it has not been tested in court. It is not to be found in Maryland v. King, 569 U.S. 435 (2013), or other DNA database cases. 20/

Is It Time? goes beyond the previous proposals in some ways. For one, the DNA information that it proposes for the "universal database" is more extensive than the profiles of existing law-enforcement databases. The article suggests that

Profiles would consist of a few dozen short-tandem repeats, with perhaps a modest expansion of the 20 CODIS loci currently used to improve the identification of degraded samples or the addition of a limited subset of “forensic” single-nucleotide polymorphisms to enhance the identification of more distant relatives in the rare instances in which familial searches were still needed. 21/

The "limited subset" of SNPs for detecting distant relatives is somewhat mysterious. Haploblock matching for inferring distant relationships uses hundreds of thousands of SNPs. Maybe there is a way to get to distant relatives with a combination of a few dozen STRs and a small number of SNPs, but the article cited in Is It Time? does not directly address this possibility. Rather, it describes an investigation of the feasibility of using an STR profile to find a close relative in a direct-to-consumer database of genome-wide-SNP-array of data (by exploiting linkage disequilibrium between the STRs and nearby SNPs). 22/

Is It Time? concludes with this thought:

At the very least, putting the idea of a universal forensic database on the table would spur a long overdue debate about the deficiencies of the current system and, more broadly, our societal commitment to privacy, fairness, and equal protection under the law.

Surely this "long overdue debate" has been going on for decades. The issues of privacy, fairness, and equality that arise from law enforcement DNA databanks and databases have always been "on the table," as shown by law review articles, books, radio and television programs, newspaper articles, blogs, government reports, and conferences. This literature, like the latest incarnation in Science, repeatedly has alluded to a population-wide database for a counterpoint to the compromises of the present system. 23/ From this perspective, elaborating on the details of a "universal database" could be helpful even though the idea has no political legs.

NOTES

1. NIJ, National Commission on the Future of DNA Evidence, https://www.nij.gov/topics/forensics/evidence/dna/commission/pages/welcome.aspx (modified Apr. 3, 2013). The Commission's first met in March 1998, and it is possible that not all the commissioners were in place in 1997.
2. David H. Kaye, Legal Issues Working Group Meeting Summary, Sept. 14, 1998.
3. David H.Kaye & Edward J. Imwinkelried, Forensic DNA Typing, Selected Legal Issues: A Report to the Working Group on Legal Issues, National Commission on the Future of DNA Evidence 73 (Nov. 30, 2001). The Working Group submitted the report to the Commission without explicitly endorsing it. See David H. Kaye, The Double Helix and the Law of Evidence 186 (2010).
4. Id. at 71.
5. D.H. Kaye & Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wisc. L. Rev. 414 (2003).
6. D.H. Kaye & Michael E. Smith, DNA Databases: The Coverage Question and the Case a Population-wide Database, in DNA and the Criminal Justice System: The Technology of Justice 247 (D. Lazer ed., Cambridge, Mass.: MIT Press 2004).
7. D.H. Kaye et al., Is a DNA Identification Database in Your Future?, Crim. Just., Fall 2001, pp. 4-11.
8. Michael E. Smith et al., DNA Data Would Combat Crime, Racism, USA Today, July 26, 2001, at 15A.
9. Another working group member -- Professor Edward Imwinkelried -- joined in writing the previous two publications.
10. Ben Ruse, MP Wants DNA Birth Records, West Australian, May 4, 2001, at 6, available at 2001 WL 20291651; Robert Williamson & Rony Duncan, Commentary, DNA Testing for All: There Are Two Fair Possibilities for Forensic DNA Testing: Everyone or No One, 418 Nature 585 (2002).
11. Robin McKie, Inventor Warns over Abuse of DNA Data: Privacy in Peril from Genetic Fingerprint Technology, Guardian, Aug. 7, 2004. See also Judge Calls for UK DNA Database, BBC News, Nov. 24, 2004.
12. Akhil Reed Amar, Foreword: the Document and the Doctrine, 114 Harv. L. Rev. 26, 125-26 (2000); Akhil Reed Amar, A Safe Intrusion, Am. Law., June 11, 2001 ("We could 'fingerprint' everyone's DNA and still protect privacy if doctrinal obstructionists would get out of the way"); Akhil Reed Amar, A Search for Justice in Our Genes, N.Y. Times, May 7, 2002; Alan Dershowitz, Identification Please, Boston Globe, Aug. 11, 2002 at 14.
13. E.g., David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminol. 535, 580-82 (2014); Richard Lempert, Maryland v. King: An Unfortunate Supreme Court Decision on the Collection of DNA Samples, Brookings Institute Up Front, June 6, 2013; Eric Posner, The Mother of DNA Databases, Slate, Mar. 5, 2013.
14. E.g., Greg Miller, Familial DNA Testing Scores A Win in Serial Killer Case, 329 Science 262 (2010).
15. Compare Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291, 329 n.152 (2010) (“virtually impossible that a universal database could withstand constitutional scrutiny”), with David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 51 Am. Crim. L. Rev. 109, 128-29 (2013).
16. J. W. Hazel, E. W. Clayton, B. A. Malin & C. Slobogin, Is it Time for a Universal Genetic Forensic Database?, 362 Science 898 (2018), DOI: 10.1126/science.aav5475
17. See authorities cited supra notes 5-6.
18. See supra note 15.
19. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095 (2013).
20. King (unconvincingly) relied on interests limited to the pretrial period to uphold compulsory sampling on arrest but not to keep the profile in a database without a conviction. See David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014).
21. Hazel et al., supra note 16, at 899.
22. Joyce Kim et al., Statistical Detection of Relatives Typed with Disjoint Forensic and Biomedical Loci, 175 Cell 848 (2018).
23. The references collected here are not exhaustive. See, e.g., David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013) (using a "universal database" as "a thought-experiment" for evaluating less inclusive database systems).