The use of forensic DNA databases by law enforcement agencies around the globe is expanding unchecked at an alarming rate and efforts are underway to harmonize them. Resources must be mobilized to establish strong standards and universal safeguards for this most invasive form of surveillance and profiling.
A crime prevention tool that was originally intended only to identify the most dangerous convicted felons on a case by case basis, DNA collection and analysis is now routinely being used for a multiplicity of purposes that pose significant privacy and civil rights concerns to every citizen. DNA is far different from other methods of identification such as fingerprints. It is a window into an individual’s medical history and that of their entire family. From the permanent retention of DNA samples of individuals never convicted of a crime, to DNA “dragnets” devoid of individualized suspicion and weak safeguards for the information once it is collected, the issues raised by the expanding use of DNA databanks pose a very serious threat to democracy.
Today, 56 countries worldwide operate national DNA databases from Asia to Europe and the Americas. Some are still in their infancy, while others such as those in the United States and the United Kingdom are large, highly sophisticated and have been established for at least fifteen years. The growing number of DNA databases differ widely both in the categories of individuals included in the databases and in the allowed usages of the databases themselves. All such databases operate on a model that allows investigators to use the information on a grand scale for multiple ongoing investigations and all reflect the racial and other biases of the broader criminal justice systems of which they are a part. For example, while African-Americans are only 12% of the U.S. population, their profiles constitute 40% of the Federal database. In the United Kingdom, nearly three-quarters of young men of African descent are on the database, as are tens of thousands of juveniles.
In the United States, all 50 states and the Federal Bureau of Investigation maintain DNA databases. The FBI database, known as CODIS (Combined DNA Index System) not only includes the DNA profiles of felons convicted in Federal courts, but effective this year may include profiles of people arrested for federal crimes as well as undocumented immigrants that have been detained and furthermore allows states to upload profiles of
anyone convicted of a crime. It now contains a growing record of over 5 million profiles. Today, forty-four
states collect DNA from anyone convicted of a felony, thirty-nine states collect DNA from those convicted of certain misdemeanors, twenty-eight collect DNA from juvenile offenders, six states collect DNA of all individuals arrested and some states (such as California) have started to retain DNA from individuals identified as “suspects.” Still other states such as Louisiana and New York have been discovered to have “offline” DNA databases including DNA samples and profiles taken from victims or suspects never charged with a crime. U.S. intelligence operates a separate database, the Joint Federal Agencies Intelligence DNA Database, for purposes of identifying and tracking alleged terrorist suspects and allows the military and other Federal agencies access to it.
The United Kingdom’s DNA database (NDNAD) is of similar size, containing 4.7 million records on the English and Welsh database representing over 5% of its population. The database, which grows by 30,000 samples each month, is populated by samples recovered from crime scenes and taken from police suspects and (in England and Wales) anyone arrested and detained at a police station for any recordable offense, permanently retaining both DNA profiles and samples.
DNA databases around the world vary widely on issues ranging from access and consent to retention of both DNA samples themselves as well as the computerized profiles created from them. Countries, including the UK and the United States have used their DNA databases to match samples taken in “DNA dragnets” of individuals without probable cause simply because of their proximity to a crime scene. These countries and others have used “familial searching” of databases for potential links between individuals whose DNA is already in the database with family members whose DNA is not. In the United States, a few cases have already been reported where dubious science has been used to conduct “racial analysis” of crime scene evidence.
The threats to privacy and democracy worldwide posed by the rapid growth of DNA databases are heightened by the growing effort to link all these databases into one international database. In a post 9-11 world, law enforcement and national leaders have become increasingly concerned with terrorism, illegal immigration and “global crime.”
United Kingdom: Through data-sharing agreements established through the European Union and other international institutions, DNA data is shared across borders with little oversight.
United States: The National Institute of Justice’s International Center promotes information sharing among similar Institutes worldwide.
INTERPOL: Interpol’s DNA database now contains profiles shared by 49 countries.
Advisory groups have been formed in Europe and elsewhere tasked with improving harmonization of forensic DNA methods to allow for the ease of sharing data across national boundaries. Such efforts highlight an already growing problem attendant to large DNA databases, the statistical increase in false matches which raises additional civil liberties concerns.
At the same time such multiple efforts are underway, no such international effort has been undertaken to create common standards for the content and use of DNA databases to ensure respect for privacy and individual rights. On December 4, 2008, the European Court of Human Rights ruled unanimously in the Marper case that the retention of the DNA of innocent persons by the UK violated human rights law. How the UK will react to the Court’s decision still remains unclear. What is clear, though, is that an international effort is vital to ensure that relaxed standards for such databases do not become the norm.
The following report represents a first step to tackling this complex set of problems. Far from complete, it nevertheless aspires to factual comprehensiveness. To the extent possible, each country report touches on six key issues: (i) law on point, (ii) entry criteria, (iii) sample collection, (iv) removal criteria, (v) sample retention, and (vi) database access. Each of these topics points up a critical feature of the current international forensic DNA landscape. Each is also a potential site for abuse as well as for reform. The ultimate goal of this report is to provide the rigorous factual basis required for strategic, effective activism. While certain countries could have filled volumes of their own while others failed to yield even a page, it is the aspiration to breadth as well as depth that marks this project as unlike others. Rather than confine the scope to those parts of the world where biotechnology common, I have tried (though not always succeeded) to focus on the developing as much as the developed world—for it is here, where policy and practice are unfixed, that advocacy can have its greatest impact.
Summary Tables
Country |
Entry Criteria |
Removal Criteria |
Sample Retention |
Australia |
|
|
|
Austria |
Convicted persons, suspects charged of a serious offences and all crime scene stains |
Profiles of convicted persons are retained indefinitely, suspects’ profiles are removed upon acquittal, [but only after submitting a written request], and crime scene stains are kept until a case is solved. |
Convicted persons’ samples must be destroyed when individual reaches age eighty, suspects samples are retained despite suspects’ acquittal, [a written request for destruction must be submitted] |
Bahrain |
All residents of Bahrain |
Unknown |
Unknown |
Belarus |
|
|
|
Belgium |
Persons convicted of a “serious offence” and crime scene stains when ordered by a prosecutor |
Convicted persons’ profiles are kept for 10 years after their death and crime scene stains are removed when no longer considered useful (order of public prosecution office is necessary) |
Convicted persons’ samples must be destroyed once DNA profile is created, suspects’ profiles must be destroyed once the prosecutor has determined that a suspects’ request for independent DNA analysis will not be granted or when the result of such request has been communicated to the suspect |
Botswana |
Unknown |
Unknown |
Unknown |
Bulgaria |
Persons indicted for a premeditated indictable crime. |
As to personal data registered for purposes of national security or crime prevention, it must be erased if there is no more reason for maintaining them under the Act or pursuant to an act. In determining whether to delete said personal data including DNA profiles, the Ministry of the Interior must consider the age of the individual, need of the information completion of an ongoing investigation or legal process, whether the individual has been convicted, amnesty status, implications of rehabilitation, or the expiration of a term provided by law. As to personal data registered for crime prevention purposes only, it must be deleted upon written order of the Data Commissioner or upon a written request of the individual in question if it was registered unlawfully, the underlying criminal proceedings have been terminated, the individual in question is acquitted of all charges, the individual in question is exempt by reason of incapacity, the individual is deceased. |
|
Canada |
|
|
|
China (Hong Kong) |
Persons convicted of any “serious arrestable offense,” and all crime scene stains. |
Convicted persons’ profiles are kept indefinitely unless their conviction is subsequently quashed on appeal, in which case they are removed from the database. |
Convicted persons’ samples must be destroyed as soon as is practicable from such time as there is no other charge against the person in relation to an offence which renders the retention of the sample necessary and all proceedings (including any appeal) arising out of the conviction have been concluded; suspects samples’ must be destroyed as soon as is practicable twelve months after the sample is taken if they are not charged with any offense, or if so charged when all charges are withdrawn, the person is discharged by a court before conviction of the offence or all the offences, or they are acquitted of all charges. |
Colombia |
|
|
|
Croatia |
Any person whose identity is in question in the course of a criminal investigation and all crime scene stains. |
Convicted persons’ profiles are kept for twenty years after the completion of the underlying criminal proceeding. |
|
Cyprus |
All convicted persons, suspects, and crime scene stains |
Convicted persons’ profiles are removed when their record is cleared, suspects’ profiles are removed when they are acquitted or otherwise cleared of all charges, and crime scene stains are kept until they are identified |
All samples follow fate of DNA profile |
Czech Republic |
All convicted persons and crime scene stains |
Convicted persons’ profiles are kept for eighty years after they are entered and crime scene stains are kept until they are identified |
All samples follow fate of DNA profile |
Denmark |
Convicted persons, suspects charged of a offence that could lead to a prison sentence of 1½ years or more, and all crime scene stains |
Convicted persons’ and suspects’ profiles are kept until two years after their death or upon their reaching age eighty and crime scene stains are retained for the “prescribed term” of the case as determined by the Danish Penalty Act |
All samples follow fate of DNA profile |
Egypt |
Unknown |
Unknown |
Unknown |
Estonia |
Persons convicted of or arrested for any recordable offence and all Crime Scene Stains |
Convicted persons’ and suspect’s profiles are kept for ten years after their death and crime scene stains are kept for seventy-five years after they are entered |
All samples are retained indefinitely |
Finland |
Convicted persons serving a prison sentence of 3 years or more, suspects charged of a crime that could lead to a prison sentence of 6 months or more, and all crime scene stains |
Convicted persons’ profiles are kept for ten years after the death of the convicted person, suspects’ profiles are deleted within one year of a prosecutorial determination that there is no evidence of an offence, charges have been dismissed, when their sentence has been nullified, or ten years after the suspects death if not removed earlier; crime scene stains are kept indefinitely |
Convicted persons’ samples must be destroyed ten years after their death, suspects’ samples must be destroyed within one year of a prosecutorial determination that there is no evidence of an offence, charges have been dismissed, when their sentence has been nullified, or ten years after the suspects death if not removed earlier |
France |
Persons convicted of or charged with a serious offence (list in law) and crime scene stains when deemed relevant |
Convicted persons’ profiles are kept for forty years after conviction upon their eightieth birthday, suspects’ profiles are removed by motion of the prosecutor or the individual upon grounds that their storage no longer serves its original purpose, and crime scene stains are deleted forty years after they have been analyzed |
Convicted persons’ samples are retained for forty years after their conviction or until their eightieth birthday; suspects’ samples are kept until conviction or acquittal: i.e. procedurally, DNA samples are treated as regular evidence |
FYR Macedonia |
Unknown |
Unknown |
Unknown |
Germany |
Persons convicted of a serious offence or repeatedly committing the same minor offence, suspects charged of a serious offence, and crime scene stains when related to any recordable offence |
Convicted persons’ and suspects profiles are removed when their retention is no longer necessary and crime scene stains must be deleted after 30 years of their entry |
Convicted persons’ and suspects’ samples must be destroyed when they are no longer considered useful for investigatory purposes |
Hungary |
Persons convicted of one of the crime categories which are listed in law, suspects charged with an offence that could lead to a prison sentence of 5 years or more or that is listed in law, and all crime scene stains |
Convicted persons’ profiles are kept until twenty years after conviction, suspects’ profiles are retained until the underlying proceeding is abandoned or the individual is acquitted, and crime scene stains are deleted at the time proscribed by law |
Convicted persons samples must be destroyed twenty years after their conviction and suspects’ samples must be destroyed upon their acquittal or abandonment of the underlying investigation or proceeding |
Iceland |
|
|
|
Iran |
Unknown |
Unknown |
Unknown |
Israel |
|
|
|
Jamaica |
Unknown |
Unknown |
Unknown |
Japan |
|
|
|
Jordan |
Unknown |
Unknown |
Unknown |
Korea (Rep. of) |
Unknown |
Unknown |
Unknown |
Kuwait |
Unknown |
Unknown |
Unknown |
Latvia |
Convicted or suspected of any recordable offence and all crime scene stains |
Convicted persons’ and suspects’ profiles are retained for seventy five years after their entry and crime scene samples are kept until they are identified |
All samples are kept for seventy five years |
Lithuania |
All convicted persons, suspects, and crime scene stains |
Convicted persons’ and suspects profiles are retained for one hundred years after their entry or ten years after their death and crime scene stains are kept indefinitely |
All samples must be destroyed once they have been analyzed and a DNA profile derived therefrom |
Luxembourg |
Persons convicted of an offence that is listed in law (order of solicitor or examining magistrate is required), persons suspected of any recordable offence (order of solicitor or examining magistrate is required) and crime scene stains only by order of the solicitor, the examining magistrate or a judicial police officer acting by order of one these magistrates |
Convicted persons’ profiles are kept for ten years after their death, suspects’ profiles are deleted upon their acquittal or ten years after their death, and crime scene stains are retained for thirty years after their entry |
Convicted persons’ samples are destroyed ten years after their death; suspects’ samples are destroyed upon acquittal, ten years after their death, or upon the expiration of the a term prescribed by law |
Malaysia |
|
|
|
Morocco |
Unknown |
Unknown |
Unknown |
Netherlands |
Persons convicted or suspected of any recordable offence and all crime scene stains |
Convicted persons’ profiles are kept for one hundred years after the individual’s date of birth, suspects’ profiles are removed upon their acquittal, and crime scene stains are removed when no longer considered useful |
Convicted persons’ samples are retained indefinitely; suspects samples must be destroyed upon their acquittal |
New Zealand |
|
|
|
Norway |
|
|
|
Panama |
|
|
|
Poland |
|
|
|
Portugal |
|
|
|
Romania |
|
|
|
Saudi Arabia |
Unknown |
Unknown |
Unknown |
Singapore |
|
|
|
Slovakia |
Persons condemned to punishment other than a fine, all suspects, if warranted by possible prison sentence, and all crime scene stains |
Convicted persons’ profiles are retained for ten years after conviction, suspects’ profiles are removed upon their acquittal, and crime scene stains are kept until they are identified, when the underlying case is solved, or after fifteen or thirty years depending on the severity of the underlying offense |
All samples must be destroyed “as soon as possible” [GET QT FROM LAW] |
Slovenia |
|
|
|
South Africa |
|
|
|
Spain |
|
|
|
Sweden |
Persons serving a prison sentence of 4 years or more, suspects charged of an offence that could lead to a prison sentence of 4 years or more (approval of prosecutor is required), and all crime scene stains |
Convicted persons’ profiles are kept for twenty years after their entry for individuals sentenced to no more than six years, thirty years for individuals sentenced to more than six years, or at most twenty years after the individual’s death; suspects’ profiles are removed upon acquittal and crime scene stains are deleted after twelve, twenty, or eighty years depending on the severity of the underlying offense |
Have to be destroyed twenty years after their creation for individuals sentenced to no more than six years, thirty years for individuals sentenced to more than six years, or at most twenty years after the individual’s death;suspects’ samples must be destroyed upon their acquittal |
Switzerland |
|
|
|
Tunisia |
Unknown |
Unknown |
Unknown |
UK |
Persons convicted of any recordable offence, arrested for any recordable offense, and all crime scene stains For Scotland: Persons convicted of any recordable offence, arrested for any recordable offense, and all crime scene stains |
Convicted persons’ and suspects’ profiles are retained indefinitely and crime scene stains are kept until they have been identified For Scotland: Convicted persons’ profiles are retained indefinitely, suspects’ profiles are retained until the underlying proceeding is abandoned or the individual is acquitted, and crime scene stains are kept until they have been identified |
All samples are retained indefinitely For Scotland: Convicted persons’ samples are retained indefinitely, but suspects’ samples must be destroyed upon their acquittal or when no criminal proceedings are initiated |
Ukraine |
|
|
|
United Arab Emirates |
Unknown |
Unknown |
Unknown |
United States |
12 states have laws authorizing arrestee sampling. All 50 states require that convicted sex offenders provide a DNA sample; 46 states require that all convicted felons provide a DNA sample. Eleven states specify certain misdemeanors among those who must provide a sample. There are 28 states that include DNA from delinquent juveniles in the database. |
38 states contain statutes that detail expungement criteria and procedure. 33 require the offender to initiate the process. |
The criteria for retention vary from immediate removal, if a sample is not used, to retention of a sample for at least 35 years, to permanent retention for certain specified offences. |
Controling Laws & Regulations
Australia |
Commonwealth Crimes Act of 1914 (as amended up to July 2008) The Crimes (Forensic Procedures) Act of 2000 No 59 (NSW) The Criminal Law (Forensic Procedures) Act 2007 (SA) |
Austria |
State Police Law (SPG) |
Bahrain |
Law No. 45 of 2006 (“Identity Card Law”) Law No. 46 of 2006 |
Belarus |
Minister of Justice Order No. 471 of December 5, 2008 Ministry of Justice Resolution No. 20 of July 21, 2003 |
Belgium |
Law of 22 March 1999 Royal Decree of 4 February 2002. |
Botswana |
Unknown |
Bulgaria |
Instruction I-73/2000 Ordinance on Police Records Law for the Ministry of the Interior Criminal Procedure Code |
Canada |
DNA Identification Act of 1998 |
China (Hong Kong) |
The Dangerous Drugs, Independent Commission Against Corruption and Police Force Ordinance Independent Commission Against Corruption Ordinance Police Force Ordinance |
Colombia |
Code of Criminal Procedure Decision C-025, 2009 of the Colombian Constitutional Court |
Croatia |
Police Act Code of Criminal Procedure Rules on Police Conduct Law on Prisons |
Cyprus |
Police Law Protection of Personal Data Act., |
Czech Republic |
Criminal Procedure Act Law on Police Binding Instruction No. 88/2002 of the President of the Police |
Denmark |
Law Establishing a Central DNA Profile Register |
Egypt |
Unknown |
Estonia |
Government of the Republic Act Databases Act, Police Act Personal Data Protection Act Code of Criminal Procedure Decree of National Police Commissioner |
Finland |
Coercive Measures Act Police Act Police Personal Data File Act |
France |
Code of Criminal Procedure Law No. 98-468 of June 17, 1998 Law No. 2001-1062 of November 15, 2001 Law No. 2003-239 of March 18, 2003 Decree No. 2000-413 of May 18, 2000 Decree No. 2002-697 of April 30, 2002 Decree No. 2004-470 of May 25, 2004 Decree No. 2004-71 of May 25, 2004 Decree No. 2009-785 of June 23, 2009. Deliberation No. 2008-113 of May 14, 2008 Circular of the Ministry of Justice of 27 July 2004 |
FYR Macedonia |
Unknown |
Germany |
Rules of Legal Procedure (Strafprozessordnung) Bundeskriminalamtgesetz (act for the Federal Criminal Investigation Office) |
Hungary |
Act LXXXV of 1999 on the Criminal Records and Certificates on Criminal Record. |
Iceland |
Law on Police DNA File Police DNA File Regulations |
Iran |
Unknown |
Israel |
2005 Amendment to the Criminal Procedure Law |
Jamaica |
Unknown |
Japan |
DNA Handling and Recording Regulations Police Instructions on DNA |
Jordan |
Unknown |
Korea (Rep. of) |
Unknown |
Kuwait |
Unknown |
Latvia |
Law on Establishing the National DNA Database |
Lithuania |
Criminal Procedure Code of the Republic of Lithuania Lithuanian Police Activity Law. Instructions on DNA Database Management, Order of the General Commissar of the Lithuanian Police |
Luxembourg |
Law No. 163 of August 25, 2006 on the Procedures for Identification by DNA Fingerprints in Criminal Cases |
Malaysia |
The Deoxyribonucleic Acid (DNA) Identification Act of 2009 |
Morocco |
Unknown |
Netherlands |
Code of Criminal Procedure DNA-investigation in Criminal Proceedings Act |
New Zealand |
|
Norway |
Criminal Procedures Act Law Regulating the Prosecuting Authority |
Panama |
Law No. 80 of 23 November 1998 |
Poland |
Code of Criminal Procedure Police Act |
Portugal |
Law No. 5 of February 12, 2008 |
Romania |
Law No 76/2008 establishes the National System of JudicialGenetic Data (hereinafter “SNDGJ”). |
Saudi Arabia |
Unknown |
Singapore |
Criminal Law (Temporary Provisions) Act Registration of Criminals Act |
Slovakia |
The Act n. 417/2002 -Use of DNA analysis for identification of persons |
Slovenia |
Police Act Code of Criminal Procedure |
South Africa |
Criminal Procedure Act |
Spain |
Criminal Procedure Law Law 15/1999 on Protection of Personal Data |
Sweden |
Code of Judicial Procedure Police Data Act |
Switzerland |
DNA-Profil-Gesetz DNA-Profil-Verodnung DNA-Analyselabor-Verodnung |
Tunisia |
Unknown |
UK |
Police and Criminal Evidence Act (PACE) Criminal Justice and Public Order Act (CJPOA) Criminal Evidence (Amendment) Act Criminal Justice and Police Act (CJPA) Criminal Justice Act (CJA) 2003 Data Protection Act (DPA) Human Rights Act (HRA) |
Ukraine |
Approved Regulations on the Operation of the Ministry of Internal Affairs Criminal Records Services |
United Arab Emirates |
Unknown |
United States |
The DNA Identification Act, 1994 Justice for All Act, 2004 Violence Against Women Act, 2005 |
Database Entry Criteria
Country |
Limited |
Unlimited |
||
Suspects |
Convicts |
Suspects |
Convicts |
|
Australia |
|
X |
X |
|
Austria |
X |
|
|
X |
Bahrain |
|
|
X |
X |
Belarus |
|
|
|
|
Belgium |
|
X |
|
|
Botswana |
|
|
|
|
Bulgaria |
X |
X |
|
|
Canada |
|
X |
|
|
China (Hong Kong) |
X |
X |
|
|
Colombia |
|
|
X |
X |
Croatia |
|
|
X |
X |
Cyprus |
|
|
X |
X |
Czech Republic |
X |
|
|
X |
Denmark |
X |
|
|
X |
Egypt |
|
|
|
|
Estonia |
|
|
X |
X |
Finland |
X |
X |
|
|
France |
X |
X |
|
|
FYR Macedonia |
|
|
|
|
Germany |
X |
X |
|
|
Hungary |
X |
X |
|
|
Iceland |
|
|
|
|
Iran |
|
|
|
|
Israel |
|
|
|
|
Jamaica |
|
|
|
|
Japan |
|
|
|
|
Jordan |
|
|
|
|
Korea (Rep. of) |
|
|
|
|
Kuwait |
|
|
|
|
Latvia |
|
|
X |
X |
Lithuania |
|
|
X |
X |
Luxembourg |
|
X |
X |
|
Malaysia |
|
|
X |
X |
Morocco |
|
|
|
|
Netherlands |
X |
X |
|
|
New Zealand |
|
|
|
|
Norway |
|
|
|
|
Panama |
|
|
X |
X |
Poland |
X |
X |
|
|
Portugal |
|
|
X |
X |
Romania |
X |
X |
|
|
Saudi Arabia |
|
|
|
|
Singapore |
|
X |
X |
|
Slovakia |
|
|
X |
X |
Slovenia |
|
|
X |
X |
South Africa |
|
|
X |
|
Spain |
|
|
|
|
Sweden |
X |
X |
|
|
Switzerland |
|
|
X |
X |
Tunisia |
|
|
|
|
UK |
|
|
X |
X |
Ukraine |
|
|
|
|
United Arab Emirates |
|
|
X |
X |
United States |
X |
X |
|
|