Maryland and Montana have passed the first laws restricting law enforcement’s access to DNA databases. For several decades, DNA identification has been a standard tool for law enforcement to identify potential victims and criminals after committing a crime, particularly after several years have passed. This tool, called “forensic genetic genealogy searching,” is relatively robust and has helped solve several cold cases throughout the United States. However, to use FGGS, law enforcement must have access to a large dataset of DNA.
The most prominent source would be the commercial databases that collect customer DNA data, such as 23andMe or FamilyTreeDNA. With nearly 3 million entries, these companies offer a relatively comprehensive resource for digging into an individual’s history.
While DNA verification is not a new tool for law enforcement, it has seen an increased use rate in recent months. In 2018, DNA played an integral part in the arrest of the Golden State Killer, marking the case as evidence of an effective method in criminal court. “I believe, 100%, that DNA is the greatest tool ever given to law enforcement to find the truth, whatever that is,” argues Anne Marie Schubert, the independent district attorney of Sacramento County, California, who oversaw the Golden State Killer’s arrest. The results have confirmed this, with DNA opening up several different cases.
However, privacy advocates have vocalized their concerns about the use of DNA from consumer databases. Since 2018, DNA searches have been used more than 200 times for cold cases. Privacy advocates consider this practice to be a potentially significant breach of individual rights. “Our genetic data is too sensitive and important to leave it up to the whims of private companies to protect it or to the unbridled discretion of law enforcement to search it,” argues Jennifer Lynch, the surveillance litigation director at the Electronic Frontier Foundation.
The two laws in question would make acquiring such data harder by requiring state officers to obtain a warrant. Starting in October, Maryland will require law enforcement to get a judge to sign off on using genetic genealogy in any case. The law will also restrict DNA evidence to severe crimes, such as murder or human trafficking. The data law would limit access to databases that disclose their relationships with law enforcement.
“The Maryland Chiefs worked closely with the subcommittee to make this law as operationally sound as possible,” says John Netsky, the president of the Maryland Chiefs of Police Association. “The regulations add some additional steps to retrieving the data but should not inhibit our ability to get the information.”
Montana’s laws are far less restrictive and detailed. Montana law enforcement officers are still required to get a warrant before searching DNA databases. However, citizens can waive their privacy rights to make access easier.
When asked for comment, a company spokesman from 23andMe told the Washington Examiner that it fully supports these new laws passed by Montana and Maryland and that it is “working on legislation in several states to increase consumer genetic privacy protections, including laws that have already passed in Utah and Arizona.”
