Guest post by Koichi Kameda
Centre for Technology and Society
Rio de Janeiro, Brazil
On the late 28 May, the Brazilian President signed legislation concerning DNA databases for criminal investigations. After an unusually quick legislative procedure - less than 1 year at both Houses of Congress - the bill has passed as Law n. 12.654/12. The legislation establishes the compulsory collection and storage of genetic profiles from those convicted felons of heinous crimes and crimes committed with serious violence. It also opens the possibility for inclusion in the databases of people still under investigation if there is legal authorization.
During the Congressional debate the main controversy was related to the constitutional right to silence (nemo tenetur se detegere). There was (and still undergoes) a split between those experts who do not consider compulsory genetic profiling as self incrimination, and the ones who insist on broader fundamental rights guarantees in the legislation. The controversy might continue in case of a claim against the constitutionality of the legislation.
Nevertheless, some relevant issues were drawn out of the legislative debate and still need to be addressed by a regulation of the Executive, as the DNA database law establishes, so as to provide some instruments for safeguarding rights and interests.
First of all, the regulation must include quality insurance systems and codes of practice for crime scene examiners, laboratories and the courts, since the contamination of DNA samples is a very possible reality. The United Kingdom is always listed as a pioneer on adoption of DNA databases, however, a recent case of DNA sample contamination in the country raises the question on the liability of this new technology.
It is also important to raise concerns on genetic privacy. The text of the legislation is explicit when it says that “informations held by the DNA databanks cannot display somatic or behavioral traits, except genetic informations related to gender, accordingly to constitutional and international laws on human rights, human genome and genetic data”, but this provision is not enough to completely solve the risks to privacy protection.
Two particular issues should be addressed: (1) since biological samples contain information related to health and heritage, the future regulation should provide for the disposal of those materials in order to avoid storage for perpetuity by the authorities and the risk of usage for means others than genetic profiling; and (2) since genetic profile allows per se tracking of individuals and family members , individuals included in the databases who are acquitted or not denounced should have their data immediately deleted.
Brazil has been criticised for its delay on the incorporation of this new technology, and this image is strenghthened by media reports overestimating the role of DNA databases to solve and prevent crimes. Meanwhile, part of the story is usually ommitted, such as the already mentioned case of DNA contamination or the UK database expansion to include innocents, the latter one being solely stopped due to a decision by the European Court of Human Rights.
Brazil should also consider international experiences to learn from mistakes committed by other authorities, including the consequences of lack of public consultation. The matter is complex and very technical, but some mobilization of civil society members during the months revealed that some actors are interested to be included in the debate. For this reason a broader and more open debate with stakeholders are necessary to clarify all the possible impacts of the DNA databases on human rights, protection of innocent people, and how this technology can really help to solve crimes in Brazil.