Resources: DNA, police and immigration

Forensic Genetics Policy Initiative

The Forensic Genetics Policy Initiative (FGPI) website contains resources relating to human rights standards for forensic DNA databases worldwide.

These resources include the FGPI report Establishing Best Practice for Forensic DNA Databases.

The FGPI website includes a forensic DNA database wiki with resources for each country.

Media resources

The Intercept (July 2021): County Prosecutors Operate “Vast, Secretive” Genetics Surveillance Program

Local Californian prosecutors offer plea deals for minor misdemeanours if people give up their DNA to the local DNA database, which was the first to be set up by prosecutors anywhere in the United States. The “spit-and acquit” program has been going on for more than a decade.

This practice has raised concerns from criminal law experts regarding the potential expansion of genetic surveillance, the coercion and lack of consent being used to collect DNA from people, the lack of regulation of local databases, and their lack of success in solving crimes. The law is described as being both ethically and legally questionable. 

The US has both national and locally run DNA databases. The growth of local databases has raised controversy as they are completely unregulated, being excluded from state and federal guidelines that require regulatory oversight to ensure some safeguards are in place to protect people’s genetic privacy as a human right. For example, in New York, while state law requires that a person be convicted of a crime before law enforcement can collect DNA, the local police database is not subject to these rules.

New York, as well as Connecticut, Maryland and in this case, Orange County databases, are amassing more and more DNA profiles. Orange County now has over 200,000 DNA profiles which is larger than many of the official state-run versions. 

This 2021 Intercept article details various issues relating to the expanding unregulated Orange County database, where prosecutors demand that DNA is given for petty misdemeanours in order to avoid the costly and timely process of hiring lawyers and going to court. One example is a woman who was offered a plea deal in exchange for her DNA after she walked her dog off the leash. While she didn’t want to give up here DNA under this “spit-and-acquit” system, the alternative was considered arduous and expensive. This raises serious concerns over the coercion of consent, as not everyone has the resources to go to court when they do not want to give up their DNA. Instead people are routinely pleading guilty, paying a fine, and also giving up their DNA, rather than going to court or accepting threats from prosecutors that they may face more serious felony charges if they say no. 

The Orange County system means that there are now people on the local database that would not be allowed to be added to the national database based on such minor offences. Moreover, there is no legal right to expunge the profiles. Local databases also suffer from lack of quality control, which may impact any criminal investigation, raising the chances of technical errors such as false-matches. This mass collection of DNA also raised the question as to whether or not this practice is merely a way to increase DNA collection from people. Communities who are disproportionately targeted by police may thus be subject to yet more surveillance and social control despite a lack of serious criminal offences being committed. 

The article concludes that there is a lack of evidence of success of the Orange country database in solving crimes. It appears only 0.67 % of genetic samples form crime scenes were matched to the local database. 

Global News (2018). DNA tests: How your data can be used for deportation and imprisonment

Global News (20018). DNA tests: How your data can be used for deportation and imprisonment

Users risk having their genetic data accessed by Big Pharma companies, immigration agencies and police departments.

New York Times (May 2021): Two New Laws Restrict Police Use of DNA Search Method

Maryland and Montana have passed the nation’s first laws limiting forensic genealogy, the method which allows police to use commercial genetic databases for police investigations and to track individuals using the DNA of relatives.

The first laws to protect genetic privacy have been passed in the US States of Maryland and Montana. The rise of commercial genetic testing companies, along with the increasing use of DNA for forensics, is increasing concerns over genetic privacy, as big datasets from different spheres become conflated and sharable. These new laws provide an example of how such issues may be partially addressed. 

In Maryland, law enforcement can no longer upload DNA profiles from crime scenes unless

  • A search warrant is obtained from a judge
  • The case involves violent crimes 
  • only certified genealogists perform the DNA searches (from 2024)
  • Law enforcement can only use databases that have explicitly gained consent to participate in DNA searches
  • Searches must first be performed with the government-run forensics DNA database before using commercial databases, which has much less genetic information on it, limited to data that enables identification of an individual, not additional genealogical or health-related information. 

In Montana, the new law is less restrictive. Search warrants will be needed but there is no restriction based on the type of crime. 

Such new regulations are needed to address the often opaque collaboration between commercial genetic database companies and law enforcement. Some companies such as 23andMe and Ancestry, have policies in place to make their databases unavailable without a court order, but other companies have a default setting in their terms and conditions that automatically opt people in for law enforcement searches. This means that companies such as FamilyTree and GEDMatch, will no longer be able to give unrestricted access to law enforcement. However, they have already stated that they do not plan to update their policies for state laws that do not apply to the whole country. 

Oray & Katsanis (2021) Ethical considerations for DNA testing as a proxy for nationality

This study summarises some of the ethical, practical and scientific concerns and potential uses of DNA testing as a means for proving nationality. While the numbers of stateless people in the world continue to rise, there are urgent needs to resolve this problem, with nationality often associated with access to basic social and economic benefits such as the ability to receive a job, education and healthcare. However, DNA tests are not proof of nationality, and could be associated with unintended consequences such as promoting discrimination, stigmatisation, bias and potentially eugenics. 

The study concludes that “As DNA and genetic testing become more relevant in immigration and migrant proceeding, it is imperative to consider the unintended consequences of conflating genetic ancestry with nationality. It is imperative that both the state and stateless persons are protected. It is important that the logistics of DNA testing for nationality, whether relationship or ancestry, are considered so that costs are not a burden, and that personal information is handled with restrictions on use and confidentiality.”