Wednesday Writs: DNA and Privacy Rights Edition

James Tourtellotte, photo editor of CBP Today[1], Public domain, via Wikimedia Commons

WW1: The last few years have been like Disneyland for true crime enthusiasts, as familial DNA and genealogy has led to the arrest of dozens of murderers who thought they got away with it, decades after their crimes. Most high profile among them was East Area Rapist/Golden State Killer, Joseph DeAngelo. But as law enforcement combed databases looking for suspects and their relatives, a debate broiled underneath about privacy concerns and the fourth amendment implications of these searches. It seemed only a matter of time before the law caught up, and it was. Maryland and Montana are the most recent states to enact legal measures in the name of privacy protection.

The use of familial DNA was one of the first things I wrote about here at Ordinary Times, back when DeAngelo was caught. I went into detail there of how law enforcement got their guy, but the TL;DR version is this: The DNA profile from the crime scene was uploaded to GEDMatch, a database to which people can submit their profiles and search for relatives sharing their DNA. Every person whose DNA is uploaded to GEDMatch has consented to this; it is the entire purpose of the database. Law enforcement used it similarly, just not with their own DNA. DeAngelo was not in the database, but his relative was. Once the relative was IDed, police searched that person’s family tree for a viable suspect and found DeAngelo, who perfectly fit the bill. They tracked DeAngelo and obtained some discarded DNA, compared to their crime scene sample, and long story short, he will now die in prison.

No one was upset that Joe the murderous creep was caught, but some wondered whether this brave new world of criminal investigation might mean they had unwittingly given up their own and their relatives’ privacy and anonymity. Some speculated that DeAngelo’s case would be tossed due to the unconventional methods used to find him. I came to the conclusion that DeAngelo, or any criminal caught in that manner, lacked standing to challenge the “search” under existing law. I predicted the way in which DeAngelo was caught would be no barrier to his conviction, and I was correct, but it was an alarming enough scenario that some legislatures took notice.

The detectives in the Golden State Killer case did not need or obtain a warrant when they started searching GEDMatch. In Maryland and Montana now, they would. Maryland went a step further, limiting law enforcement to using only those genealogy databases that have informed their customers of the potential use in criminal investigations and requiring waivers and consent of the same. Maryland also requires law enforcement to use the government-run DNA database, CODIS, before trying a commercial site. Per Paul Holes, the forensic detective who was crucial in DeAngelo’s apprehension:

…this part of the law could have tragic consequences. For old cases, he pointed out, DNA evidence is often highly degraded and fragile, and every DNA test consumes some of that precious sample. “In essence, the statute could potentially cause me to kill my case,” he said. And given the speed that DNA technology evolves, he added, it is unwise for a law to mandate use of any particular kind of test.

The biggest names in DNA Databases, 23andme and Ancestry.com, have refused to cooperate with law enforcement. But GEDMatch and FamilyTreeDNA have eagerly done so, and both have said they have no plans to change their user agreements to accommodate Maryland and Montana. Some Marylanders and Montanans with serious skeletons in their closets are probably breathing easier right now.

Privacy rights and criminal investigations are always in tension, with one of the two so often being sacrificed in the name of the other. It’s easy to applaud the capture or identification of a serial killer or the murderer of a little girl after decades, but like our other constitutional rights, it’s important to safeguard them — you want them there for you, if you ever find yourself in the crosshairs of the criminal justice system.

WW2: Fresh off the SCOTUS press: law enforcement on Native American tribal lands have the authority to stop, detain, and search a non-tribe member. The 9-0 decision penned by Justice Breyer recognized that while, in general, “the sovereign power of an Indian tribe does not extend to the activities of non-members of the tribe, nevertheless, the “tribe retains inherent authority over the
conduct of non-Indians on the reservation ‘when that conduct threatens or has some direct effect on . . . the health or welfare of the tribe.'” The tribe does not have jurisdiction over trial and punishment of a non-member, but it may detain and turn over a person suspected of violating state or federal law to an entity with jurisdiction.

WW3: Also new at SCOTUS, Justice Gorsuch wrote another 9-0 opinion. This one put the kibosh on a Ninth Circuit rule involving credibility determinations in immigration cases. The rule was that, “in the absence of an explicit adverse credibility determination by an immigration judge or the Board of Immigration Appeals, a reviewing court must treat a petitioning alien’s testimony as credible and true.” The Court found this incompatible with the Immigration Nationality Act, which requires a reviewing court to accept the lower immigration courts’ “administrative findings”.

WW4: An update by Pope Francis to the “Code of Canon Law” is intended to deal with sexual abuse in the Catholic Church, “defrocking” and otherwise penalizing priests who violate the new provision.

WW5: Permitless carrying of handguns will be allowed in Texas as of September 1. The most surprising thing about this is that it was not already a thing in Texas.

WW6: This week marks the 100th anniversary of the Tulsa Race Massacre, in which black owned homes and business were destroyed and 26 black people killed by white mobs, in attacks spurred on by a thwarted lynching of a 19 year old shoe-shiner accused of assaulting a white teenage girl. The incident, which for years was called a “race riot”, was unknown to most people until recently. The massacre was not even taught in Oklahoma schools and, thanks to an anti-critical race theory law recently enacted in the state, may continue not to be. The law prohibits the teaching of any “lessons that make an individual ‘feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.'”

WW7: An unintended consequence of legalized marijuana is that it has put some members of law enforcement out of work. Fortunately, these officers probably don’t mind, as long as they have some room to run, a comfy bed for napping, and lots of fresh water and food, and perhaps some chew toys.