All in the Family: Privacy and DNA Familial Searching
Sonia M. Suter · Harvard journal of law & technology · 2010
TABLE OF CONTENTS I. INTRODUCTION II. DNA DATA BANKS AND FAMILIAL SEARCHES A. DNA Profiling and Databases B. Familial Searches 1. Success Stories 2. Moving Toward Systematic Familial Searches III. PRIVACY AND CIVIL LIBERTY CONCERNS A. Privacy Interests of Genetic Informant 1. DNA Profiling Generally 2. Arrestees 3. Familial Searching B. Privacy Interests of Relatives C. Family Privacy IV. RACIAL DISPARITIES V. BALANCING THE INTERESTS A. Assessing Prima Facie Duties B. Balancing Prima Facie Duties 1. Increasing Benefits and Maximizing Effectiveness of Familial Searching 2. Minimizing Collateral Harms of Familial Searching 3. Minimizing Disclosure of Familial Secrets 4. Prohibiting Surreptitious Collection of Samples 5. Purging Records of Exonerated Individuals and Restricting Uses of Samples 6. Minimizing Threats to Racial Justice VI. CONCLUSION I. INTRODUCTION For three years in early 1980s, a violent rapist was on loose in South Yorkshire, England. The rapist, who had attacked at least six women, was labeled Dearne Valley Shoe Rapist because, in addition to sometimes tying up women with their stockings, he always stole their stiletto-heeled shoes. (1) A high-profile campaign to find assailant had been unsuccessful for more than twenty years. Even searching for a genetic match in national DNA database with semen found on victims' clothes led nowhere. But in 2006, investigators turned to a new technology called familial searching to identify local individuals in DNA database whose genetic profile closely matched crime scene evidence, suggesting they might be related to rapist. After visiting two of forty-three individuals with partial matches, a police officer knocked on door of June Lloyd (2) and told her, We're running a cold case investigation and there are some similarities between your DNA and offender's DNA. Do you mind telling me, have you got any brothers? (3) June admitted to having a brother, but insisted that he couldn't be criminal; her brother was a middle-aged father of three, a successful manager of a printing press, and a pillar of community. After learning of investigation, June's brother, James Lloyd, told a relative to look after his children because he had committed a series of offences 20 years ago. (4) He then attempted to commit suicide. James Lloyd was soon arrested and confessed to rapes. A search underneath a trap door in his office revealed stockings, jewelry, purses, and more than 100 stilettos. (5) James Lloyd was ultimately convicted for rape of four women and attempted rape of two others. So ended the biggest victory yet in a 'cold case' using familial searching. (6) As I discuss in Part II, familial searching is a recent extension of DNA profiling, which has been a powerful tool in law enforcement for over twenty years. (7) Once courts found DNA evidence admissible, states quickly began to mandate creation of DNA databases with samples collected from specific classes of offenders. (8) Today all fifty states and federal government have statutes authorizing creation of DNA databases with profiles from certain convicted felons. (9) over years, trend has been to broaden pool of offenders to include nonviolent felons, misdemeanants, and even arrestees. (10) Familial searching is just one more step in this trend toward expanding reach of DNA profiling. Familial searching builds on one of most basic facts of genetics: DNA is shared among family members. As a result, a forensic DNA profile not only reveal[s] extensive genetic information about individual whose 'genetic fingerprint' is on file, but also about his or her close relatives. …