South Florida Sun-Sentinel (Sunday)
The Times found consumer DNA
Orlando, Fla., police Detective Michael Fields was sure he had the break he needed right in front of him to close in on a serial rapist: a list of people whose DNA partially matched the man he hunted.
Then the list disappeared. After a year of criticism from privacy advocates and genealogy experts, the owner of a popular DNA-sharing website had decided law enforcement had no right to consumer data unless those consumers agreed.
“It was devastating to know that there’s information out there,” Fields said. “It wasn’t fair.”
So he persuaded a judge to grant him access to the entire database, the genetic records of more than 1 million people who never agreed to a police search. It was the first court order in the nation for a blanket consumer DNA search, kept secret from those whose genetic code was involuntarily canvassed.
Genealogical databases are a potential gold mine for police detectives trying to solve difficult cases.
But law enforcement has plunged into this new world with little to no rules or oversight, intense secrecy and by forming unusual alliances with private companies that collect the DNA, often from people interested not in helping close cold cases but learning their ethnic origins and ancestry.
A Los Angeles Times investigation found:
■ There is no uniform approach for when detectives turn to genealogical databases to solve cases. In some departments, they are to be used only as a last resort. Others are putting them at the center of their investigative process. Some, like Orlando, have no policies at all.
■ When DNA services were used, law enforcement generally declined to provide details to the public, including which companies detectives got the match from. The secrecy made it difficult to understand the extent that privacy was invaded, how many people came under investigation, and what false leads were generated.
■ California prosecutors collaborated with a Texas genealogy company at the outset of what became a $2 million campaign to spotlight the heinous crimes they can solve with consumer DNA. Their goal is to encourage more people to make their DNA available to police matching.
There are growing concerns that the race to use genealogical databases will have serious consequences, from its inherent erosion of privacy to the implications of broadened police power.
After L.A. County prosecutors filed two counts of murder against a man linked to a pair of decadesold cold cases by connecting the suspect through a genealogy match, District Attorney Jackie Lacey refused to provide details of the genetic work — including the commercial genealogy service used. Similar genealogy searches remain sealed elsewhere in California, Texas and Florida.
“They’re afraid that if the public finds out what we’re doing, we won’t be allowed to do it anymore. So the solution is, ‘Don’t tell the public,’ ” said Erin Murphy, a former defense attorney who teaches law at New York University and has become an outspoken critic of what she says is open season on consumer DNA.
DNA for decades has been law enforcement’s slam-dunk, an invaluable tool to identify human remains and put killers and rapists at the scene of the crime.
But until a year ago, searches for unknown suspects were limited to the partial “junk DNA” of felons and criminal suspects held in government-supervised databases.
That changed dramatically in April 2018 when a team of investigators in Sacramento County announced they had matched 38year-old crime scene DNA with the suspected Golden State Killer’s relatives on a public genealogy site. The arrest of former police officer Joseph James DeAngelo, now charged with 13 murders and awaiting trial, unleashed a wave of consumer DNA hunts across the United States.
was used to declare closure of 66 cases. They involve 14 alleged serial killers and rapists and unsolved crimes going back to 1967, but also the remains of a miscarriage pulled from a sewer, and the hunt for a man sneaking into bedrooms. Forensic labs claim to have closed more than a
The arrest of former police officer Joseph James DeAngelo, top in 2018; above in 1973, now charged with 13 murders and awaiting trial, unleashed a wave of consumer DNA hunts across the United States. dozen other cases.
“It is probably one of the greatest revolutions, at least I would say, in my lifetime as a prosecutor,” said Sacramento County District Attorney Ann Marie Schubert. “But it is a difficult, evolving topic because there are privacy interests at stake and in an area that’s unregulated.”
Government DNA databases for a decade have allowed crude familial searching that can identify a suspect’s parent, child or sibling. But the full chromosomal information held by private services can identify those who share 1% of DNA, and are five or more generations removed. Merging that with other consumer data, researchers then can identify relatives two and three generations removed.
Those consumer databases contain genetic code of some 26 million Americans, and so many of European descent that scientists say in a few years they’ll be able to identify every AngloSaxon American through family DNA.
But critics say police searches invade the privacy of those who submitted their DNA strictly out of curiosity about their ancestry, and their relatives who didn’t even consent to that.
The Golden State Killer case and most of those that followed were cracked by identifying DNA relatives on GEDMatch, a nofrills DNA registry popular with genealogists and adoptees seeking their birth parents. At least twice, GEDMatch allowed police access in cases that ultimately did not meet its policies, and at least once police conducted their hunt without permission using a fake account.
The nation’s two largest genealogy services, Ancestry and 23andMe, say they do not grant law enforcement access to their consumer data. But a third, smaller company, FamilyTreeDNA, openly permits law enforcement use except for those customers who specifically opt out.
the genetic profiles of millions of consumers on genealogy sites.
Familial DNA searches of the past, done on those within the FBI’s national criminal database, were restricted, and California’s Department of Justice required case-by-case oversight by an independent committee. The private lab in Virginia handling the bulk of public gene-matching cases argues consumers don’t require the same level of protection because they voluntarily mailed in their DNA.
What oversight exists is inconsistent. A U.S. Justice Department policy that went into effect this month limits consumer DNA searches to violent crimes — and strictly as a tool of last resort.
Prosecutors in a handful of California counties, including Los Angeles, Sacramento, Orange and Ventura, this spring created their own more lenient rules. Sacramento and Ventura permit consumer searches before all other leads have been exhausted, and in the case of Ventura County, the crime involved does not have to be violent.
But most police agencies are like Orlando, which has no DNA policy. Detective Fields said he was guided by “common sense” in the two cases he has searched consumer DNA — the July hunt for a serial rapist, and a 2018 arrest of a man for the unsolved
Few safeguards protect
murder of a college co-ed.
Fields had spent half a dozen years looking for leads in the 2001 murder of Christine Franke. A Virginia-based forensics service, Parabon Nanolabs, used DNA found on Franke’s body to predict the race and facial characteristics of her killer. But Fields could get no further until the day Sacramento announced its arrest of the alleged Golden State Killer.
Parabon called Fields offering to replicate the methods to look for Franke’s killer.
“I said, absolutely,” the detective recalled. “Parabon turned that case around overnight.”
What Parabon provided were GEDMatch accounts of two second and third cousins of the suspected killer — the same information any other user of the DNA registry would see.
Field’s team then used traditional genealogy to trace those relatives back to a common ancestor from the 1890s. They then built out a huge family tree of every descendant of that ancestor, and started going down the branches.
But eight branches had no DNA, so investigators asked 15 people to provide it. Fields declined to say how these people were convinced. The defense lawyer for the man Fields subsequently arrested said it was by lying.
“They went to Georgia, said there was an African American female murdered who was more than likely related to them,” said Orlando lawyer Jerry Girley. Relatives were told that by providing their DNA, Girley said, “their loved one could rest in peace.”
Instead, Orlando police days later arrested the son of one of the elderly women tested.
“She is devastated,” Girley said.
and they’ll take it to Mars,” he said. “I tell people, ‘Don’t put your DNA in the system.’ (Police) see it as a side door around the Fourth Amendment.”
The suspect in that case, Benjamin Lee Holmes, has pleaded not guilty. He is jailed awaiting trial.
Researchers at Baylor College of Medicine found more than 90% of those polled online favored police access to consumer DNA when it comes to murder cases. “None of us want violent criminals roaming the street,” said medical ethicist Amy McGuire, one of the Baylor researchers and also an adviser to FamilyTreeDNA.
But the Baylor study found public support for DNA searching dropped to 34% when the crimes were not violent and police wanted the names of account holders.
GEDMatch at first allowed law enforcement searches only for violent crimes. But GEDMatch permitted gene matching for a teen who broke into a Utah church, assaulting a woman in the process.
And it helped police in Texas hunt for a man creeping into women’s bedrooms.
In reaction to growing privacy concerns, GEDMatch in May closed its database to law enforcement unless users specifically agreed to opt in.
By then Fields had moved on to a second case — an unsolved rape — and had already seen early results on GEDMatch identifying relatives of the suspected rapist. Rather than lose that list with the policy change, he secured a warrant to the entire database. The search remained a secret for four months, until Fields revealed it at a law enforcement conference, encouraging other agencies to conduct DNA matching.
“Give them an inch,
completely undermine efforts to ensure privacy, said GEDMatch cofounder Curtis Rogers.
“The protection offered by having a court review is better than no protection at all,” he said.
Critics did not agree, and said the repeated policy breeches and global search warrant show how easily privacy falls away.
“There’s always a danger that things will be used beyond their initial targets, beyond their initial purpose,” said Vera Eidelman, a DNA expert for the American Civil Liberties Union. She pointed to the way DNA searches at first limited to convicted felons now span the mothers, brothers, uncles, grandparents and cousins twice removed of people who simply want to know if they are German or a Viking.
FamilyTreeDNA lab manager Connie Bormans bristles at any use of the word “searching.” Police see no more than any other user — just the account name and contact information a user provides — unless they get a warrant. She has turned away law enforcement that didn’t meet the company’s permitted use rules.
Bormans said she can’t envision a scenario where the familial search would backfire. “It is only a tool,” Bormans said. “There is no way that they will get a profile and arrest someone solely on the profile.”
Legal scholars said it is only a matter of time before courts weigh in on the privacy of DNA.
Schubert’s office is blocking disclosure of the DNA trail that led to the arrest of two accused serial rapists from the 1980s and 1990s. Her attorneys told one judge that secrecy must extend beyond the names of relatives whose DNA was examined to the names of the companies providing that information — keeping it secret even from defense lawyers.
Schubert’s staff successfully argued such disclosure might “result in a backlash against that site resulting in a tightening of restrictions on the site or use of the site.”
They added: “If individuals in society stop wanting to enter DNA in consumer genealogical databases for fear their privacy is not being protected, then law enforcement loses a powerful technique to solve crime.”
The Orlando cop who bypassed GEDMatch’s privacy policy is nonplussed by the concerns over privacy and public buy-in.
“It’s Big Brother, but Big Brother’s been here for decades,” Fields said. “Everyone’s trying to focus in on this because it’s DNA, but it’s no different than anything else that we do in our everyday lives. Police with a piece of paper and the judge can override almost anything.”
The warrant does not