The Genealogy Detectives: A Constitutional Analysis of "Familial Searching."
Kaye, David H., American Criminal Law Review
"Familial searching" in law enforcement DNA databases has been pilloried as a step "towards eugenics and corruption of blood" and "lifelong genetic surveillance" that is "inconsistent with a basic pillar of American political thought." Courts have yet to address the issue fully, but several commentators contend the practice is unwise, unjust, or unconstitutional. This Article examines the more significant constitutional claims. It concludes that although kinship matching should not be implemented simply because it is technologically seductive, neither should it be removed from the realm of permissible law enforcement information gathering on constitutional grounds. In reaching this conclusion, the Article describes the logic of kinship analysis; clarifies the nature of partial-match searching; shows how an advanced system of DNA databases could yield additional, accurate leads in the investigation of both routine and high profile crimes; and explains why this system, if properly implemented, is compatible with constitutionally protected interests of both convicted offenders and their close relatives.
CONTENTS INTRODUCTION I. FROM KINSHIP ANALYSIS TO KINSHIP MATCHING A. Kinship Analysis with a Suspect B. Kinship Analysis with a Database: The Two Types of Database Trawls C. The Efficacy of Kinship Matching II. EQUAL PROTECTION A. Racial Discrimination B. Arbitrary Discrimination III. ACQUIRING DNA FOR TRAWLING AS A SEARCH A. The Definition of a Search B. Physical Extraction of a DNA Sample as a Search IV. THE REASONABLENESS OF INNER-DIRECTED AND OUTER-DIRECTED TRAWLING A. The State's Interests 1. Authentication: True Identity 2. Intelligence: Investigative Leads and Exonerations 3. The Reduced Expectation of Privacy B. Database Inhabitants' Interests in Avoiding Outer-directed Trawls 1. "A Blooming Family Tree" a. The desire to keep quiet b. The desire not to know 2. More Markers C. Relatives' Interests" in Avoiding Outer-directed Trawls 1. Sheltering Evidence of Guilt 2. Avoiding False Convictions 3. Being a Suspect 4. Maintaining Spatial Anonymity D. The Unbearable Lightness of Shadow Databases CONCLUSION
DNA databases are a darling of the detective's nursery. They began as a curiosity thought to be useful for solving only a few types of violent crimes. (1) Today, they are dazzling devices for enforcing criminal laws from car theft to murder. (2) Computerized matching of the DNA identification profiles from crime-scenes and victims (3) to profiles from known individuals has produced hundreds of thousands of "cold hits." (4)
But some people are never satisfied. A number of scientists have concluded the databases could produce many useful investigative leads if a technique known as kinship analysis were routinely employed. (5) To take their idea to its logical extreme, we can envision a database system constructed to be especially useful for this kind of analysis. Like today's databases, this system would pick out any individuals in the database who are likely sources of crime-scene DNA samples. But the trawling would not stop there. Almost magically, it could lead to identifications of individuals outside the database who left their DNA at crime scenes or on their victims.
Unfortunately, there is a catch. These new leads would point only to very close relatives who are not themselves subject to inclusion in the federal and state databases because they have not been convicted of qualifying crimes. Kinship matching, therefore, has been pilloried as "function creep," (6) "mission creep," (7) "a major privacy intrusion in the life of families," (8) "the worst kind of guilt by association," (9) "genetic surveillance for all," (10) and "lifelong genetic surveillance" (11) that is "inconsistent with a basic pillar of American political thought. …