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DNA Testing And The Law

DNA testing and the law

DNA testing was once done almost exclusively by law enforcement and Maury - the former to catch criminals, the latter to create drama from broken families. In the 2010s, however, a rapid expansion of consumer DNA testing occurred - companies like 23andMe and AncestryDNA, who purport to offer a detailed look into your ancestry, provide answers to questions about where you come from.

These tests are already rife with controversy - Elizabeth Warren’s political gaffe is a prime example. An even more controversial element of the tests is how the information you provide to the company is used. Many of these companies will sell your data to drug companies - though this data is anonymized and you can opt out. What if, however, companies started offering this data to law enforcement?

That’s the subject of a new controversy surrounding companies like FamilyTreeDNA and GEDMatch, which are willingly granting law enforcement access to their databases in order to find potential criminals.

Here’s how it works: law enforcement uploads DNA evidence they’ve found onto these gigantic genetic databases. They then find potential semi-matches - usually distant relations, like third cousins. Having found a potential relative, they look at that person’s family tree. They pare down the tree to likely suspects - people who were in the area at the time of the crime, etc. They follow the likely suspects around until they drop an item containing DNA, then check for a match.

This can all be done without a warrant - all you need is the initial DNA from the scene of a crime. You don’t need a warrant to pick up a discarded plastic fork, and you certainly don’t need a warrant to upload DNA to one of these databases. In fact, FamilyTreeDNA is actually encouraging this behavior - they want you to upload your DNA so law enforcement can use it to catch criminals.

Parsing out the ethics of this situation is difficult. On the one hand, it represents a new tool that law enforcement has to catch dangerous criminals - one that they can use with little disruption to people’s everyday lives. On the other hand, it represents an expansion of the ways in which DNA testing can be used. That could lead to a cooling effect, with fewer people using DNA testing kits. Beyond that, it opens up potential challenges if the accuracy of those DNA tests comes into question. Finally, the whole thing might be seen by some as overreach - another way in which big data deprives individuals of their privacy.

We’re not here to answer these heady questions - only to make sure you’re aware of their existence. What we are here for is to provide you with an appearance attorney should you need one. We have also taken advantage of the new digital landscape in order to ensure that you and your clients have access to highly competent representation should an emergency arise.