By Sheldon Krimsky, Tania Simoncelli

On January 5, 2006, a little-noticed piece of legislation entitled the "DNA Fingerprint Act of 2005" was signed into law by President George W. Bush, greatly expanding the government's authority to collect and permanently retain DNA samples. These ninety-nine lines of text, introduced initially by Senator Jon Kyl [R-AZ], slipped virtually unnoticed through the halls of Congress, buried in the back of the broadly popular, 284-page Violence Against Women Act (VAWA) reauthorization bill. Notwithstanding the lack of public reaction and policy debate, this new law raises extraordinary questions for the future of civil liberties. Among other provisions, it grants the government authority to obtain and permanently store DNA from anyone who is arrested as well as non-U.S. citizens detained under federal authorities.

This change in the federal DNA databanking law is emblematic of a new era in forensic DNA - one that is wrought with serious civil liberties and privacy concerns and may ultimately do little to make people safer. While DNA testing was initially introduced into the criminal justice system as a method of developing supplemental evidence to be used in convicting the guilty or freeing the innocent, in the last fifteen years this has changed. The federal government and all fifty states have created permanent collections of DNA taken from ever-widening categories of persons and subjecting these collections to routine searches. At the same time, a stunning array of techniques have emerged allowing lab technicians to glean information from DNA that goes well beyond the mere identification of a person, while the ability to detect and process minute amounts of DNA has steadily increased as costs have declined.

Law enforcement's use of these tools to search, profile and store the DNA of those who have not been convicted of a crime, without a court order or individualized suspicion, has already exceeded reasonable constitutional protections. In particular, a number of new genetic techniques and practices are providing law enforcement unprecedented access into the private lives of innocent persons by way of their own genetic data. These include, but are certainly not limited to 1) searching for partial matches between crime scene evidence and DNA banks to obtain a list of possible relatives for DNA analysis ("familial searching"); 2) constructing probabilistic phenotypic profiles of a perpetrator from DNA collected at a crime scene; and 3) surreptitiously collecting and searching DNA left behind on items such as cigarette butts and coffee cups.

This essay explores each of these developments and their implications for civil liberties. We argue that the availability and use of these techniques seriously violates the reasonable expectations of privacy held by law-abiding citizens regarding their DNA. Developing technology, rather than constitutional analysis and informed public decisionmaking, is driving the expansion of DNA databanks. Neglected to date has been a responsible national debate leading to an understanding of the issues and resulting in a societal consensus about the variety of uses of DNA discussed in this paper. To help advance the discussion, we urge that policies on DNA-forensic technologies need to calibrate the proper balance of civil liberties and law enforcement needs. We argue that clear national guidelines are needed to set standards for what governmental authorities, as well as private companies and individuals, may and may not do with DNA. We hope to provide a context for re-assessing these and other practices that raise serious civil liberties concerns. Finally, we briefly suggest what some of those guidelines should be.



"Familial searching" of databases is one of the new methods of creating suspects in the absence of a "cold hit," i.e., matching a crime scene sample with one in a forensic database. Familial searching is premised on the notion that siblings and other closely related individuals have more genetic material in common than non-related individuals. Current methods of familial searching involve generating a list of possible relatives of the owner of DNA picked up at a crime scene by performing either a "low stringency" profile search to look for "partial matches" between crime scene evidence and offender profiles or by conducting a "rare allele" search. Close relatives of those matches are then tracked down and asked to "voluntarily" provide a DNA sample.1

In 1973, three women were murdered in South Wales. Twenty-nine years after the crimes were committed, the police submitted crime-scene stains to the United Kingdom's National DNA Database (NDNAD). When no full matches were found, a low stringency analysis indicated that the DNA partially matched the DNA profile of a man named Paul Kappen. Police surmised that someone in Kappen's family was the murderer, leading them back to Paul Kappen's father, Joseph, who had since died. British law enforcement authorities obtained DNA samples from the Kappen family, including Paul Kappen's mother and his siblings. The close match between the crime scene and family DNA profiles was sufficiently credible for the police to obtain a warrant to exhume the body of Joseph Kappen. His DNA was an exact match with the crime scene DNA. The case was solved by posthumous familial searching.

Familial searching has been employed in the United Kingdom in at least 20 criminal investigations.2 In the United States, the practice was quite limited until recently by a policy adopted by the FBI prohibiting the release of any identifying information about an offender in one state's database to officials in another state unless the offender's DNA was an exact match with the DNA evidence found at the scene of crime. Last summer, however, the FBI changed its policy in response to a request from Denver authorities who found a close match between evidence taken from the scene of a rape and a convicted felon in Oregon, indicating that he was a potential relative of the actual perpetrator. The interim policy, effective July 14, 2006, allows for states to share information related to "partial matches," upon FBI approval.3 This has opened up the floodgates for using CODIS (the Combined DNA Information System is the FBI's national DNA database) in conjunction with familial searching.

Familial searching raises a series of troubling civil liberties issues. First, if practiced routinely, it effectively expands the database to a whole new category of innocent people whose private genetic data may be mined even though they themselves are not suspects in any criminal case - those who happen to be relatives of convicted offenders or others whose DNA data is kept in government databases. Family searches may also reveal information that family members prefer to keep private; for example, an offender might name someone as a parent or child who turns out to be genetically unrelated to them. In addition, there are a host of unanswered procedural questions associated with how the police might follow up on leads provided by partial matches. A low stringency search (generally defined as a match of 8-12 alleles out of the usual 13-15) can generate tens, hundreds, or even thousands of partial matches (and these will continue to grow as the databases grow). A partial match only indicates that there is some possibility that a relative of that person could have DNA that fully matches the crime scene evidence - the probability that the partial match is useful depends both on the number of alleles that are found to match and on their respective rarity in the population. As such, the police might be tempted to knock on the doors of hundreds or thousands of individuals, in the event that they do not have further evidence to narrow down their initial list of partial matches. Assuming that a partial match is not sufficient evidence for compelling a relative to provide a DNA sample via a court order, what happens if those individuals refuse to provide a sample? What is the fate of the samples collected? Will they be destroyed if that person is excluded from the crime? Will there be a temptation on the part of law enforcement to follow people around to get their DNA surreptitiously, when a court warrant cannot be obtained because there is insufficient evidence of individual suspicion?



In an even more disturbing trend, some law enforcement agents have tried to construct phenotypic profiles of the suspected perpetrator, based on analyses of the DNA found at a crime scene.4 In a murder investigation in Louisiana, for example, a relatively new method of DNA analysis was employed to predict the "ancestry" of the alleged offender as 85% Sub-Saharan African and 15% Native American. The company that performed the analysis, DNAPrint Genomics, has been aggressively marketing the service to police departments, investigators and agencies.5 The company has also recently started offering to law enforcement agencies a genetic test to infer eye color.6

A blood stain left at a crime scene could be subjected to many other tests for genetic conditions, more than a thousand of which are currently available. Law enforcement might use this information in an attempt to narrow down a pool of suspects. For example, suppose a blood stain were to be sent off to a private lab for a battery of genetic tests. The lab finds that the DNA of the stain contains the two genetic mutations associated with Gaucher disease, a metabolic disorder that causes a buildup of fatty substances in the spleen and liver and results in fatigue and bruising easily. Law enforcement might then try to get a list of names of all the people receiving enzyme replacement treatments for Gaucher at the neighboring hospital. Would they be given those names? If so, under what circumstances? Do people on such a list become suspects for a crime simply because they might have a pre-disposition to a certain health condition?

Under the Health Insurance Portability, Accountability Act (HIPAA), a person's DNA information and tissue samples are protected. However, HIPAA contains a broad exception that allows for disclosure of Protected Health Information to law enforcement officials, not only in compliance with a court order or grand jury subpoena, but also in response to an administrative subpoena, summons or civil investigative demand. It is worth noting that all of these are legal instruments that can be issued without judicial review.7 Broad administrative discretion is given to those with stewardship over health information at the hospitals to determine how to respond to written requests from law enforcement for patient records. HIPAA also allows health care providers to disclose to law enforcement, upon request, a broad array of identification information, including name, address, social security number, blood type, date of treatment and a physical description. Federal HIPAA guidelines should be tightened to protect the privacy of medical information, especially in cases where court warrants are not issued, to ensure uniformity in the interpretation of the policy.

There is also an obvious temptation on the part of law enforcement to analyze crime scene DNA in order to make predictions about the physical, behavioral or medical conditions of the alleged perpetrator. This temptation will likely increase over time. Already, claims have been made that genetic factors have been found that are associated with sexual orientation, intelligence, addictive behavior and aggression. Even if such associations are unsound, law enforcement will be tempted to use them so as to generate profiles of suspects from the DNA, such as: "Likely to be a tall, African American, homosexual male, with high intelligence, a propensity for addiction, and recessive for sickle cell anemia." Even if there were reliable population-wide probabilistic inferences from genotype to phenotype, confounding factors would make these inferences questionable for any individual.

This trend is likely to continue with the advent of gene chips, or DNA microarrays, such as those that have been developed by Affymetrix.8 These gene chips allow researchers to access information on thousands of genes simultaneously. At the same time, scientists have developed DNA sequencing devices as small as ten centimeters in diameter while the "Personal Genome Project" seeks ultimately to make it affordable for people to sequence their own, individual genome.9-10



In 1974, a woman was raped and stabbed in Buffalo, New York. A 60-year-old man was recently arrested and charged with the crime. The police did not have enough evidence to obtain a warrant for his arrest. Instead, they followed him around, picked up his DNA after he spat on the sidewalk, and compared it to the 30-year-old crime scene sample.11

This is the latest of an increasing number of known examples where police have collected DNA from individuals surreptitiously and without warrants supported by evidence amounting to probable cause. In another case, currently under review by Washington State's Supreme Court, the police employed a ruse in order to get their suspect, John Athan, to provide them with a DNA sample. Posing as a law firm, the police sent Athan a letter, asking him to join a lawsuit aimed at recovering overcharges in traffic fines. When they received a return letter from him, they lifted his DNA from the dried saliva where he had licked the envelope.12

These cases suggest the following question: What does it mean to live in a world where one has to assume that DNA shed on a continual basis might at any time be picked up, extracted and analyzed for information that could lead to one's arrest or conviction, to behavioral profiling or to the even more-attenuated identification of family members as crime suspects?

The primary argument asserted by law enforcement to justify surreptitious DNA searches is that the DNA is "abandoned."13 In other words, an individual who "abandons" her DNA no longer has any privacy interest in that DNA.

This argument is problematic on a number of counts. First, "abandoned" implies a knowing intent to part with an item. People abandon items they no longer wish to own or carry around. But DNA is not so much abandoned as it is inadvertently and continually shed from people's bodies in the form of skin cells, saliva and hair samples. Short of walking around in the world in a plastic bubble suit, it would be virtually impossible to refrain from "abandoning" DNA in public.

Shedding DNA is not like leaving garbage at the curb. When people leave garbage on the street, they have come to anticipate that someone might rummage through it. They expect that the private information that might be contained in letters or bills can be accessed virtually by anyone who might come into contact with that garbage, which is why many people choose to shred important documents before discarding them. However, DNA cannot be "read" or even seen unless it is collected and then analyzed by sophisticated, expensive equipment. The privacy interest associated with DNA comes into play not in the form in which it inadvertently left the body, but instead when it is analyzed for the information contained in it. And certainly there is no mechanism for "shredding" the DNA that continuously gets released from the human body.

Police point to individual success stories in solving crimes as a way of justifying surreptitious DNA collection as a "clever investigation technique." But allowing police to take DNA without a person's knowledge or consent opens the door to mass DNA collections of anyone vaguely suspected, or even to those who are perfectly law-abiding and suspected of no criminal activity. Individuals would have no way of contesting this collection or use of their DNA. This scenario becomes increasingly worrisome when coupled with developments in behavioral genetics; weak or unreliable genetic markers for aggression or addiction could provide justification for identifying individuals who, it is believed, will commit a crime, and placing them under surveillance or social control.



The techniques and practices discussed above go a considerable distance to undermine the privacy of individuals. At the same time, it is possible that people are being asked to sacrifice their privacy for a process that may ultimately do little for criminal justice. In the case of the databanks, while law enforcement tends to boast large numbers of "cold hits" or "investigations aided," so far there has not been a single, peer-reviewed study that demonstrates the true effectiveness of the databanks.14 While the prevailing notion with respect to these databanks is "the bigger the better," it is worth noting that the ability to use DNA in crime solving is limited by the ability to collect uncontaminated and undegraded DNA at a crime scene, not by the number of people in the databank. As the databanks expand to people convicted of minor offenses or merely arrested, the chances that any given profile in the database will help resolve a future crime apparently diminish. In the United Kingdom, the enactment of arrestee testing in 2004, which has corresponded with a ballooning of the UK database from 2 million to 3 million profiles (including those of more than 125,000 people never charged with any crime), has actually corresponded with a slight decrease in matches with crime scene evidence.15

Likewise, DNA dragnets have proven to be highly ineffective. In a study conducted by the University of Nebraska, only one of eighteen dragnets conducted in the United States was found to have led to the actual perpetrator, and this was a dragnet that only involved 25 people who were all staff at a nursing home where repeated sexual offenses were taking place.16 In other words, a small pool of suspects already existed. Some dragnets have even been found to interfere with crime-solving. For well over a year, police had the DNA of the individual who was ultimately charged with the murder of Cristina Worthington. The DNA had not been tested, however, because law enforcement officials were busy collecting DNA from about a thousand innocent individuals in hopes of using that DNA to solve the crime.17

In the case of familial searching, it is perhaps too soon to tell how helpful this technique could be for law enforcement. But with the problems inherent in DNA dragnets and surreptitious DNA sampling, it is likely that only the successes will be made public. Law enforcement officials are unlikely to publicize the failures, dead ends or number of people who are investigated without their consent or knowledge.

An over-reliance on these practices could well undermine law enforcement. Some law enforcement officials have expressed concern that the tremendous resources funneled into building and expanding forensic DNA banks are channeling away money that should be put into following up on investigational leads or placing police officers on the streets.18 In addition, crime laboratories all over the country are plagued by extraordinary backlogs resulting from the heedless expansion of the databanks. In February, the California Commission on the Fair Administration of Justice, a bipartisan panel of criminal justice experts and practitioners, released an emergency report that documented enormous backlogs of about 160,000 untested DNA samples in California's state lab arising from the expansion of California's databank to all felons.19 This backlog is expected to increase exponentially when Proposition 69's arresteetesting provision comes into effect in 2009, when an additional 450,000 samples will be eligible for collection each year.

Backlogs can have tragic outcomes. As the California panel reported, "Delays of six months or more have become the norm" in analyzing rape kits in the state. In one case, a rapist attacked two more victims, including a child, while his DNA awaited analysis. Backlogs can also increase the chance of errors in DNA analysis, labeling or interpretation as lab analysts are pressured to cut corners to meet their workload.

Such errors have already resulted in known miscarriages of justice. As a result of an error made by an analyst at the Houston Crime Lab, Josiah Sutton spent nearly five years in prison, starting at the age of 16, for a rape he could not have committed. In another case, a 26-year-old man faced life in jail and was incarcerated for over a year because the Las Vegas police crime lab mistakenly switched the label on his DNA sample with that of his cellmate.20 Timothy Durham of Tulsa, Oklahoma spent four years in prison on the basis of a misinterpreted DNA test, despite having 11 witnesses who placed him in another state at the time of the rape he was convicted of.21

The more that DNA is relied upon to create suspects where there are none, the more vulnerable it will be to abuse. Already, several instances have been reported where criminals have planted or tampered with DNA evidence, or paid others to take DNA tests in their stead as a way of confusing investigators or evading prosecution. Prisoners have also been overheard coaching each other on how to plant biological evidence at crime scenes and how to avoid leaving their own DNA behind. Recently, four men in Massachusetts were indicted on charges of DNA tampering for allegedly attempting to switch identity bracelets when having blood drawn for a DNA sample while in custody.22

Finally, we will likely see increasing hostility among the public as law enforcement engages in DNA screens that impute suspicion based on neighborhood, vague physical descriptions or racial characteristics, or familial relations. Ultimately, people may be unwilling to cooperate with law enforcement in helping to resolve a crime where these practices become more routine and the rules as to whether and under what circumstances their DNA may be collected and used remain unclear.



We can hardly blame law enforcement for wanting to use DNA in any way possible to solve crimes. At the same time, privacy of one's DNA is completely undermined if law enforcement is permitted to use backdoor methods of DNA collection and to examine DNA for any and all information about a person, including their personal characteristics and familial characteristics and connections.

Expansions of the uses of DNA by law enforcement are generally occurring in a policy vacuum and then being justified retroactively by a limited number of solved crimes aided by DNA data. Aside from the fact that these cases appear to be the exception rather than the rule, what is not revealed by these stories is the larger picture of the steady erosion of privacy that accompanies the shifting purpose of DNA's use by law enforcement from one of identification to surveillance. Continued use of these techniques and practices outside of the arena of judicial oversight and without the application of ethical guidelines should spark a rigorous debate about the government's intrusion into the lives of innocent people.

Once the information inscribed in DNA is considered private, then it follows that this principle should be embedded in the policy debate so that it can assist us in establishing an appropriate balance between law enforcement and civil liberties. That principle of balance should guide where and when DNA technology may be used by law enforcement. We offer the following basic recommendations as to how to achieve that balance:

1. Informed consent should be required before law enforcement takes or tests the DNA of a person who has not been convicted of a crime. Surreptitious taking, testing or storing of DNA from suspects or their relatives is a violation of a person's privacy and should be prohibited.

2. Absent valid consent, a court order based upon probable cause should be required for the taking of an individual's DNA. Such DNA should be compared only with the DNA from a crime scene for which that person is a suspect.

3. DNA databanks should be limited to DNA profiles from persons who are convicted of serious crimes. All those presumed innocent do not have a diminished right to privacy and therefore should not have their DNA included in a forensic DNA databank.

4. Offender biological samples should be destroyed so that the encoded information cannot be mined for purposes beyond identification (such as investigating potential genebehavior associations).

5. Crime scene samples should be analyzed only for purposes of identification. Law enforcement should generally be barred from looking for rare alleles that are associated with genetic diseases or other traits that are not central to identification.

6. The Genetic Nondiscrimination Act of 2007 should be passed and then amended to provide protections and rules for law enforcement. Otherwise, just as people have been hesitant to undergo genetic testing for fear that their information will be used against them by insurance companies or future employers, so will they fear that law enforcement will mine their medical records for their DNA.23

7. A court order based upon probable cause should be required for law enforcement to be given access to anyone's medical records for genetic data. The rules protecting medical information in HIPAA and their current broad exemption provided to law enforcement should be tightened in light of emerging interests in health data for forensic uses.


Sheldon Krimsky is President Ad Interim of the Council for Responsible Genetic and Professor of Urban and Environmental Policy at Tufts University.

Tania Simoncelli is the Science Advisor to the American Civil Liberties Union and a member of the CRG Board of Directors. 



1. Frederick R. Bieber, Science and Technology of Forensic DNA Profiling: Current Use and Future Directions, in DNA and the Criminal Justice System: The Technology of Justice (David Lazer ed., 2004); see also Ben Mitchell, Police Warning to Criminals over DNA Breakthrough, The Scotsman, Nov. 19, 2004.

2. Williams, Robin, "Making Do with Partial Matches: DNA Intelligence and Criminal Investigations in the United Kingdom," Presentation for DNA Fingerprinting and Civil Liberties: Workshop #2, American Society for Law, Medicine & Ethics, 17-18 September 2004.

3. FBI, CODIS Bulletin, "Interim Plan for the Release of Information in the Event of a Partial Match at NDIS," July 20, 2006.

4. Nita A. Farahany & William Bernet, Behavioral Genetics in Criminal Cases: Past, Present and Future, 2 Genomics, Soc'y & Pol'y 72 (2006).

5. DNAPrint Genomics Is Encouraging Law Enforcement Agencies To Include DNAWitness TM In Their NIJ Grant Proposals, 4/august_16/.

6. DNAPrint Announces The Release Of RETINOMETM For The Forensic Market: Eye Color Prediction From Crime Scene DNA, 4/august_17/.

7. Law Enforcement Exemptions to the HIPAA Regulations: Testimony Before the Subcomm. on Privacy and Confidentiality of the National Comm. on Vital Statistics (Feb. 18, 2004) (statement of Chris Calabrese, Counsel to the American Civil Liberties Union's Technology and Liberty Program).

8. Affymetrix,

9. Bioengineers develop smallest DNA sequencer, http://bioeng.

10. Emily Singer, The Personal Genome Project: What Would Happen if Genetic and Medical Records were Freely Available to Anyone who Wanted Them?, Tech. Rev., Jan. 20, 2006, available at

11. Carolyn Thompson, Police DNA Collection Sparks Questions, Associated Press, March 17, 2007, available at N.htm?csp=34.

12. Brief for American Civil Liberties Union of Washington as Amici Curiae Supporting Defendant, State v. Athan, 158 P.3d 27 (Wash. 2007) (No. 75312-1); see also Richard Willing, Police Dupe Suspects into Giving up DNA, U.S.A. Today, Sept. 11, 2003, at A03.

13. For a detailed analysis of the concerns associated with the collection of so-called "abandoned" DNA, see Elizabeth E. Joh, Reclaiming 'Abandoned' DNA: The Fourth Amendment and Genetic Privacy, 100 Nw. U. L. Rev. 857 (2006).

14. See Rothstein & Talbot

15. GeneWatch UK, The Police National DNA Database: An Update (Human Genetics Parliamentary Briefing No. 6, July 2006), available at 8483c1c3d49e4/MPSBrief_1.pdf.

16. Police DNA 'Sweeps' Extremely Unproductive, a report by the Police Professionalism Initiative, Department of Criminal Justice, University of Nebraska at Omaha, Sept. 2004.

17. Pam Belluck, Slow DNA Trail Leads to Suspect in Cape Cod Case, N.Y. Times, Apr. 16, 2005; see also Eileen McNamara, Not Making his Case, Boston Globe, Apr. 17, 2005.

18. Rockne Harmon, Assistant Dist. Att'y of Alameda County, Post-Conviction Review: A Prosecutor's Viewpoint, Remarks at the DNA Fingerprinting and Civil Liberties Workshop hosted by the American Society for Law, Medicine & Ethics (Sept. 2005).

19. California Commission on the Fair Administration of Justice, Emergency Report and Recommendations Regarding DNA Testing Backlogs, Feb. 20, 2007.

20. Glenn Puit, Man Files Lawsuit in False Imprisonment, Las Vegas Rev.-J., July 6, 2002.

21. W. C. Thompson, F. Taroni, and C.G.G. Aitken, How the probability of a false positive affects the value of DNA evidence, J. of Forensic Sci., Jan. 2003.

22. Buffy Spencer, Four Men Charged with DNA Tampering, The Republican, Mar. 17, 2007, at B02.

23. Genetic Information Nondiscriminaton Act of 2007: Hearing on H.R. 493 Before the Subcomm. on Health of the H. Comm. on Energy and Commerce, 110th Cong. (2007) (statement of the Honorable Francis S. Collins, Director, National Human Genome Research Institute).

24. Table I prepared with Joanne Kang, ACLU Washington Legislative Office.

25. In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App., 2006) (declaring the statute unconstitutional, "because Minn.Stat. § 299C.105, subd. 1(a)(1) and (3) (2005), direct law enforcement personnel to conduct searches without first obtaining a search warrant based on a neutral and detached magistrate's determination that there is a fair probability that the search will produce contraband or evidence of a crime, and because the privacy interest of a person who has been charged with a criminal offense, but who has not been convicted, is not outweighed by the state's interest in taking a biological specimen from the person for the purpose of DNA analysis, the portions of Minn. Stat. § 299C.105, subd. 1(a)(1) and (3), that direct lawenforcement personnel to take a biological specimen from a person who has been charged but not convicted violate the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution").

26. Robert Tanner, More state back taking DNA from arrestees, Deseret News, June 30, 2006 (finding that state Senator Ron Ramsey's amendment to remove database provisions "won wide support, but was delayed for a year" to add six additional DNA analysts to state lab to address backlog issues).

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