Some people eat, sleep and chew gum, I do genealogy and write...

Monday, May 11, 2015

DNA Testing and an expectation of privacy

A recent blog post by the Ancestry Insider entitled, "AncestryDNA Negative Publicity," started me thinking about the boom in DNA testing for genealogy and the genealogist's expectation of privacy. The gist of the story as told by the Ancestry Insider involved newspaper reports of a murder investigation out of Idaho. A person whose father had been tested through the company, the Sorenson Molecular Genealogy Foundation, recently acquired by to form its AncestryDNA project, became a suspect in a murder investigation because of a near match with the genealogically acquired DNA sample. Further testing showed that he was not the person whose DNA had been collected at the scene of the crime. See "New Orleans Filmmaker Cleared in Cold-Case Murder; False Positive Highlights Limitations of Familial DNA Searching."

The issue is characterized as a familial DNA testing case. First of all, from my reading of the reports and from the standpoint of the involvement of familial DNA testing, this particular case has a lot more to do with an expectation of privacy than it does with DNA testing per se, familial or otherwise. The fact that this particular instance of DNA testing involved a notorious murder case only adds emotional content to the role of the privacy issues. In the newspaper article cited above, there is a link to the website of a Federal Bureau of Investigation's Laboratory Services article entitled "Familial Searching." Quoting from that article:
Familial searching is an additional search of a law enforcement DNA database conducted after a routine search has been completed and no profile matches are identified during the process. Unlike a routine database search which may spontaneously yield partial match profiles, familial searching is a deliberate search of a DNA database conducted for the intended purpose of potentially identifying close biological relatives to the unknown forensic profile obtained from crime scene evidence. Familial searching is based on the concept that first-order relatives, such as siblings or parent/child relationships, will have more genetic data in common than unrelated individuals. Practically speaking, familial searching would only be performed if the comparison of the forensic DNA profile with the known offender/arrestee DNA profiles has not identified any matches to any of the offenders/arrestees.

Familial searching is often confused with what occurs when a partial match results from the routine search of the DNA database. A partial match is the spontaneous product of a regular database search where a candidate offender profile is identified as not being identical to the forensic profile but because of a similarity in the number of alleles shared between the two profiles, the offender may be a close biological relative of the source of the forensic profile.
 A careful reading of the facts as reported, if the report is reliable and correct, shows that the concept of "familial searching" was possibly inappropriately applied in this case. The key here is the statement above which provides that, "Familial searching is an additional search of a law enforcement DNA database..." The database used by the investigators in this case was apparently not a "law enforcement" DNA database, It was the Sorenson Molecular Genealogy Foundation database now owned by

It is reported that revealed the requested information pursuant to a "court order," likely a subpoena. From the genealogical standpoint, did a person who was related to another person who participated in submitting a DNA sample for testing have a reasonable expectation that the results of the DNA test would not be available to an investigatory agency (i.e. the Idaho Falls Police Department, if a court ordered the production of the DNA test results through the subpoena process?

For some time now, courts in the United States, in paternity cases, have recognized that the child, the mother and the putative father can all be required to undergo DNA testing. See for example North Carolina Department of Health and Human Services, Child Support Services Paternity as quoted here:
Under NCGS 110-132.2, CSS has the authority to subpoena a minor child, the minor child's mother, and the minor child's alleged father (including the mother's husband, if different from the alleged father) to submit to paternity testing. If a judicial action to establish paternity has been filed with the court, CSS can issue an administrative subpoena for paternity testing without a judicial order.
 Obtaining DNA test results is clearly within the purview of a court's ability to issue a subpoena. What is an "expectation of privacy and does that expectation override or prevent the issuance of a subpoena in a DNA case?

An expectation of privacy is not the same as a "right to privacy." The legal issues raised in defining an expectation of privacy are divided along two different considerations: the expectations of the individual that acts, situations or locations are "private," and the general, reasonable expectation of privacy as defined by the prevailing societal norms. I would submit that from either basis, if I submit a DNA sample to an organization such as for the purpose of establishing familial relationships (family tree relationships) with other users of the program, I have no reasonable expectation of the privacy of the information developed from my test results. Even if the person submitting the DNA samples reasonably believed that the results of the DNA test would somehow be withheld from potential relatives in a family tree, the person submitting such DNA sample runs the entire risk that a court could order the production of the results of the DNA testing as apparently happened in the case referred to above. I would characterize any expectations on the part of the individual submitting a DNA sample to have been waived by virtue of the nature and common use of the test results, i.e. to establish familial relationships or common ancestry.

The real issue here however is whether or not the child of the father who actually submitted the DNA sample had any expectation of privacy with regard to the use of the father's results? I find no basis for any such expectation of privacy or otherwise. If my relative submits a DNA sample, I can only expect that the results of the DNA test will be used to publicly establish a relationship, perhaps with me or anyone else in the family. The facts of this particular case whether correctly or incorrectly reported, do not change the lack of an expectation of privacy.

The Federal Rules of Criminal Procedure, Title IV Arraignment and Preparation for Trial, Rule 17, Subpoena incorporates a consideration of privacy for victims, but not the accused in the subpoena process. Rule 17 Section C, Subsection 3 states:
(3) Subpoena for Personal or Confidential Information About a Victim. After a complaint, indictment, or information is filed, a subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.
There is no mention of this right as accruing to anyone beyond the victim. Of course, this issue is entirely hypothetical unless you happen to be accused of a crime. Subjective privacy is not an issue at all. What you believe to be private, if you are an accused, is not relevant and as you can see voluntarily submitting to a DNA test is not a defense to the issuance of a subpoena forcing a DNA test, even in a civil lawsuit.

What is relevant in this case is whether or not the investigating agency had probable cause to arrest and forcibly test the relative of the person who submitted the DNA test. Assuming that the circumstances for the issuance of a subpoena were reviewed by a court of competent jurisdiction in the matter, then the test could proceed with or without the voluntary cooperation of the accused.

The lesson here for genealogists is that there is very little we do that is subject to considerations of privacy. By the way, if you read the newspaper report, there is a suggestion that the father who contributed the DNA sample did so pursuant to a "church sponsored" event. In the legal community, this would be called a "red herring," that is a non-issue or an issue that has nothing at all to do with the case. How or why the father submitted the test is irrelevant to the issuance of a subpoena for the information. Further, by the way, in my opinion, has absolutely no liability for complying with a court subpoena regardless of the language of any representations the company may have made at the time the DNA test was requested. If you disagree, you are free to comment as I am free to publish or not publish your comments.

My last comment, I would think that there would have to be a major restructuring of the U.S. court procedures concerning subpoenas if someone were to somehow establish a right of privacy as opposed to considerations of an expectation of privacy in this area of the law.

As usual, I am no longer an actively employed attorney in any jurisdiction and anything I say is my personal opinion and not to be construed as legal advice in any particular case or controversy. If you have a question regarding any of the legal issues raised in this post, you should seek legal counsel in your jurisdiction. My opinions are based on the law as I understand it in the United States, if you live in country other than the United States, your law may differ.

1 comment:

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