Journal of Science Policy & Governance
Volume 24, Issue 01 | April 30, 2024

Policy Position:  ​Recommendations for Improving the Use of Direct-To-Consumer Genetic Testing Databases in Law Enforcement Investigations​

Anisha Cook (1,2)
  1. Johns Hopkins University, Krieger School of Arts and Sciences, Baltimore, Maryland, USA
  2. Savannah State University, Department of Chemistry & Forensic Science, Savannah, Georgia, USA

​Corresponding author: [email protected]​​
Keywords: DNA; law enforcement; forensic science; genetic testing; 23andMe; criminal justice; prison reform
https://doi.org/10.38126/JSPG240105

Executive Summary

Prisoners are some of the most vulnerable populations in our society today, often relinquishing to the state everything from medical autonomy to family support. In a system where wrongful convictions are not unheard of, it is critical that we preserve the civil rights of investigative subjects wherever possible. Law enforcement agencies in the United States have increasingly begun using direct-to-consumer recreational genetic databases as a tool to enable forensic investigations. These commercial genetic testing companies analyze polymorphisms in DNA to isolate genealogical information, medical data, and other traits. Traditionally, law enforcement has been restricted to the use of matching repeating sequences in non-coding sections of DNA. However, through services like GEDMatch, law enforcement has gained access to single nucleotide polymorphism (SNP) markers from upwards of 25 million consumers throughout the world. This rapidly developing technology must be regulated to ensure that consumers, as well as blood relatives of consumers, are not unfairly targeted by investigations. With studies indicating that DNA is typically reported as the single most important piece of evidence to jurors,  it is in the best interests of policymakers to ensure that the DNA data is both accurate and used fairly. First, we will provide a background of the technology and regulation of direct-to-consumer (DTC) genetic testing databases in law enforcement. Second, we propose a mechanism by which states might legislate the appropriate use of these databases by law enforcement by limiting access and enforcing a double-blind system.  This paper lays out the background and policy proposal for a requirement of direct-to-consumer genetic testing companies to communicate the possibility and type of information shared with law enforcement, and a framework by which policymakers can ensure unbiased and minimally intrusive use by law enforcement.

-Read the full article through download.-

Background header image courtesy of STATNews


Anisha Cook is an Adjunct Professor of Chemistry at Savannah State University. Previously, she worked as a Chemical, Biological, Radiological, and Nuclear Officer in the United States Army. Her research interests involve the use of science policy to increase equity in legal systems, as well as improving STEM literacy among historically underrepresented communities. 

Acknowledgements
The author would like to thank the Regulatory Science faculty in the Johns Hopkins Biotechnology Graduate Program Department for their support, as well as the entire Department of Chemistry and Forensic Science at Savannah State University. The author would also like to thank the reviewers for their work improving this manuscript.

Disclaimer
Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily represent the views of Johns Hopkins University or Savannah State University.

References

  1. Brown T. R. 2019. “Why We Fear Genetic Informants: Using Genetic Genealogy to Catch Serial Killers.” The Columbia science and technology law review, 21(1), 114–181. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7946161/
  2. California v. Greenwood, et al. 1988.  486 U.S. 35. https://www.law.cornell.edu/supremecourt/text/486/35
  3. Covolo, L., S. Rubinelli, E. Ceretti, and G. Umberto. 2015. “Internet-based direct-to-consumer genetic testing: A systematic review.” Journal of Medical Internet Research, 17(12). https://doi.org/10.2196/jmir.4378
  4. de Groot NF, B. C. van Beers, and G. Meynen. 2021. Commercial DNA tests and police investigations: a broad bioethical perspective. Journal of Medical Ethics 47(12). https://doi.org/10.1136/medethics-2021-107568
  5. Department of Justice. 2023. “Collecting DNA evidence at property crime scenes: Profile types.”  https://nij.ojp.gov/nij-hosted-online-training-courses/codis/collecting-dna-evidence-at-property-crime-scenes/profile-types
  6. Department of Justice. 2012. “DNA Evidence: Basics of Analyzing.” https://nij.ojp.gov/topics/articles/dna-evidence-basics-analyzing
  7. Food and Drug Administration (FDA). 2018. “Genetic Tests with Unapproved Claims to Predict Patient Response.” https://wayback.archive-it.org/7993/20201223165230/https://www.fda.gov/medical-devices/safety-communications/fda-warns-against-use-many-genetic-tests-unapproved-claims-predict-patient-response-specific.
  8. Gutierrez, Alberto. 2013. “Warning Letter to Ann Wojcicki, CEO of 23andMe.” https://www.fdanews.com/ext/resources/files/12/12-02-13-23andme.pdf.
  9. Gutierrez, Alberto. 2010. “Letter to Navigenics.” https://www.fda.gov/medical-devices/products-and-medical-procedures/in-vitro-diagnostics
  10. Hanson, E. J. n.d. “The Use of DNA by the Criminal Justice System and the Federal Role: Background, Current Law, and Grants.” The Congressional Research Service. https://sgp.fas.org/crs/misc/R41800.pdf.
  11. Lynch, J. 2021. “EFF challenges surreptitious collection of DNA at Iowa Supreme Court.” Electronic Frontier Foundation. https://www.eff.org/deeplinks/2021/04/eff-challenges-surreptitious-collection-dna-iowa-supreme-court.
  12. Maryland. 2021. House Bill 240 Criminal Procedure - Forensic Genetic Genealogical DNA Analysis, Searching, Regulation, and Oversight. https://legiscan.com/MD/text/HB240/2021
  13. Pollack, Andrew. 2015. “23andMe Will Resume Giving Users Health Data.” New York Times. https://www.nytimes.com/2015/10/21/business/23andme-will-resume-giving-users-health-data.html
  14. Raynor V. State of Maryland. 2014. https://caselaw.findlaw.com/md-court-of-appeals/1676725.html
  15. Sarata, Amanda K., and Judith A. Johnson. 2014. “Regulation of Clinical Tests: In Vitro Diagnostic (IVD) Devices, Laboratory Developed Tests (LDTs), and Genetic Tests.” Congressional Research Service. https://sgp.fas.org/crs/misc/R43438.pdf
  16. Schweitzer, K., & N. Nuñez. 2018.” What evidence matters to jurors? the prevalence and importance of different homicide trial evidence to mock jurors.” Psychiatry, Psychology and Law, 25(3): 437–451. https://doi.org/10.1080/13218719.2018.1437666
  17. St. John, P. 2020. “The untold story of how the Golden State Killer was found: A covert operation and private DNA.” Los Angeles Times. https://www.latimes.com/california/story/2020-12-08/man-in-the-window.
  18. UNESCO. 2003. “International Convention on Human Genetic Data.”. UNESCO. http://portal.unesco.org/en/ev.php-URL_ID=17720&URL_DO=DO_TOPIC&URL_SECTION=201.html
  19. Wickenheiser R. A. 2022. “Expanding DNA database effectiveness.” Forensic science international. Synergy, 4: 100226. https://doi.org/10.1016/j.fsisyn.2022.100226

DISCLAIMER: The findings and conclusions published herein are solely attributed to the author and not necessarily endorsed or adopted by the Journal of Science Policy and Governance. Articles are distributed in compliance with copyright and trademark agreements.

ISSN 2372-2193
© 2022 Journal of Science Policy & Governance, Inc. All rights reserved. The opinions, findings and conclusions from JSPG publications, additional article commentaries and related events do not necessarily reflect the views of the journal.