Toronto police see opportunity after a California arrest using DNA
When the man accused of being the Golden State Killer was arrested in Sacramento, Calif., late last month, worldwide ww attention was drawn to the en- terprising use of DNA technology that helped solve the decades-old case.
Among those watching were detectives in Toronto police’s cold case unit. California police use a genealogy site to match Joseph DeAngelo’s DNA. “We were on the phone the next week, trying to contact the investigators,” said Det. Sgt. Stacy Gallant. “I wanted to ask them: how did you do it? What did you need? I wanted to find out the exact process that they took.”
In what Gallant thinks may be a law enforcement first, California police — including an investigator who’d been working the case 20 years — used a free public genealogy site called GED- match to identify 72-year-old Joseph James DeAngelo as the suspect in a spree of murders dating to the 1970s.
According to U.S. media reports, police used a newly discovered, well-preserved DNA sample believed to be that of the Golden State Killer and submitted the genetic profile to the genealogy database. Police created a fake profile and pretended to be conducting family history research — a typical use of genetic testing services such as GEDmatch or more prominent commercial sites such as 23andMe.com.
A few months later, the DNA produced a match with a distant relative of DeAngelo, eventually leading to his arrest.
The new technique has been celebrated for its potential to unlock cold cases, but it raises pressing privacy concerns. Among them, the question of whether those submitting their DNA to genealogy sites to find lost relatives or learn about hereditary risks understand that their genetic code could one day be mined by law enforcement — with consequences for relatives or future generations.
In a statement to the New York Times, a lawyer affiliated with GEDmatch said the purpose of the site was for users to find relatives and is “not intended to be used by law enforcement to identify suspects of crimes.” Website 23andMe, meanwhile, has stated that its services cannot be used for criminal investigations.
As investigators were praised for their work, rights groups including the American Civil Liberties Union noted the “very real dangers of government access to sensitive information.”
“The lines we draw for this case may well provide a road map for investigations of crimes in the future,” privacy fellow Vera Eidelman wrote in a recent post on the ACLU’s website. “The techniques used here are likely only the tip of the iceberg when it comes to what investigators will soon have the technological power to do.”
For Gallant, who oversees the Toronto police cold case unit, DNA technology is having an increasingly revolutionary effect on crime-solving — “it’s the fingerprint of the 21st century.” Beginning in 2015, Gallant initiated a review of cold cases explicitly seeking homicides in which the killer’s DNA might now be extractable from evidence through new methods.
These deaths must have involved close contact between the victim and the killer, namely sexual assault, strangulation, stabbing, beating — “anything where they were up close and personal and there could be a transfer of DNA,” Gallant said. Crime scene evidence also can’t have degraded or been contaminated, which is not a given in historic cases where investigators may not have used gloves or preserved important items.
To date, police have examined more than 45 cases dating to the 1960s and developed DNA profiles in 13 unsolved crimes. Among them was what Gallant called a “strong male DNA profile” of the killer in the 1991 murder of Lori Pinkus, who was a sex trade worker in the Bloor and Lansdowne area at the time of her death. Assaulted and strangled, Pinkus’s partially nude body was left in a school parking lot, discovered by the caretaker.
“Now that we have the killer’s DNA, we just need a name to go with it,” Gallant says in a video released by Toronto police this month, appealing for a member of the public to come forward with a name — “nothing more.”
But generating a DNA profile from an unsolved murder is, often, far from closing the case. Indeed, the cold case unit has more than 30 unsolved cases where DNA profiles have been developed, yet no arrests have been made.
In all of these cases, no match was found when investigators checked the profiles against those in Canada’s National DNA Data Bank, which began collecting the DNA of convicted offenders in 2000 and today contains 405,000 such profiles.
“The reality is, every time we get a DNA profile and it doesn’t match anything on the (national) database, we are back to square one again,” Gallant said. “It’s frustrating that we have all these DNA profiles that could lead to the arrest of killers, and yet we don’t know who they are.”
One avenue is to appeal to the public, as Gallant did in the Pinkus case and others. A tip could help police identify a suspect, then possibly request a DNA sample directly or begin surveillance in an effort to surreptitiously gain DNA through, for example, a disposed coffee cup. But a new avenue may be through genealogical sites. Gallant says he hasn’t yet heard back from the investigators involved in DeAngelo’s arrest — he anticipates they have been contacted by multiple police agencies — but he’s keen to learn more about their tactics.
In particular, he’d like to understand how they were able to provide DNA from a historic crime scene in a form that’s compatible with the DNA samples typically obtained by genealogy websites. A DNA profile is filed in a criminal database using a specific number of genetic markers, which Gallant believes is likely incompatible with the genealogical sites.
“You’re looking at apples and oranges,” he said.
If investigators do find a way to submit DNA to an ancestry site, it may not be as simple as creating an online profile.
In a statement to the Star this week, Ontario’s information and privacy commissioner said that because it has the potential to reveal “a great deal about an individual,” genetic information ordinarily attracts a reasonable expectation of privacy.
“As a general rule, we would therefore expect the police to obtain court authorization when seeking such information from, for example, a genealogy service provider,” Brian Beamish said.
Valerie Lawton, with the Office of the Privacy Commissioner of Canada, said that although DNA profiles can solve cold cases and bring emotional closure to victims and families, “their collection and retention must respect the highest possible standards of fair balance between security and privacy.”
She notes that Canada’s DNA Identification Act, which governs the National DNA Data Bank, does not allow for familial searching, meaning a Golden State Killer-like connection through a distant relative cannot be made.
Gallant said another solution may be to allow for greater collection of DNA through the criminal justice system. Echoing a suggestion made by previous police leaders, including former Toronto chiefs Bill Blair and Julian Fantino, Gallant said it may be time to consider collecting samples from anyone who is charged, not just convicted, of a serious crime.
As it stands, judges must demand DNA samples from those convicted of violent offences including sexual assault and murder. They can also choose to order samples from anyone found guilty of some less serious crimes.
“It could be extremely helpful in historical cases or future cases, in terms of identifying who is responsible,” Gallant said. Currently, he said, “we are taking DNA from people who are already murderers.”
But rights advocates say there are good reasons why highly personal information is not collected upon arrest.
“Those facing criminal charges are presumed innocent of those crimes,” said Daniel Brown, a Toronto director with the Criminal Lawyers’ Association. “To take their DNA, which is a very significant intrusion on their privacy, should only occur in those instances where someone is found guilty, and not before.” Brenda McPhail, a privacy, technology and surveillance expert with the Canadian Civil Liberties Association, agreed, saying just because it would be convenient from a law enforcement perspective to collect DNA from more Canadians “doesn’t make it right.”
Use of personal information — as seen in the Golden State Killer case — demonstrates that it’s time for a broader discussion about privacy expectations and civil rights when it comes to emerging technology, especially concerning DNA.
“This is as personal as it gets,” McPhail said. “From our perspective, there are exceptionally strong privacy interests and we need to be having a large-scale societal conversation about the legality and the ethics of these fishing expeditions through that kind of information.”
“This is as personal as it gets.” BRENDA MCPHAIL CANADIAN CIVIL LIBERTIES ASSOCIATION, ABOUT THE USE OF DNA IN COLD CASE INVESTIGATIONS