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Lawmakers Cautious as Genetic Tests Help in Cracking Cold Cases

Law enforcement’s use of DNA evidence to find perpetrators of violent crimes has led to breakthroughs in dormant investigations, giving hope to victims’ families while raising privacy concerns.

By Kate Bryan  |  October 23, 2023

At 2:43 a.m., Detective Ben Pender received a text: “We have a close family match.”

Nearly 10 years had passed since Sherry Black’s murder in the bookstore she owned in South Salt Lake City, Utah. Blood evidence recovered at the crime scene was run repeatedly through the Combined DNA Index System but had no matches .

Until now.

Now, Pender was confident he could identify the killer.

Having taken over the case a few years earlier with no suspects, Pender turned to investigative genetic genealogy, or IGG, in which DNA evidence from crime scenes is entered into voluntary genealogy databases to find relatives of the culprit, allowing investigators to deduce the identity of possible suspects. Ultimately, this forensic technique provided the lead integral to the arrest and conviction of 29-year-old Adam Durborow, who is now serving life without parole.

“One of the important things to note is, up until this bill passed, there were no guardrails in place in state law; it was kind of a free-for-all.”

—Utah Rep. Steve Eliason

Black’s case is not the first to be solved using IGG. The method has been used in high-profile cases such as the Golden State Killer and, more recently, the arrest of Bryan Kohberger in connection with four murders in Idaho. But, as officials use the technique to find perpetrators of violent crime, IGG has raised questions among both the public and lawmakers.

IGG’s use of voluntary databases, some privacy advocates argue, not only exposes the personal information of innocent individuals but can undermine constitutional protections such as the prohibition against unreasonable search and seizure. “The idea that they upload their data for genealogy purposes and it’s used in such a different way really surprises some people,” says Benjamin Berkman, head of the bioethics department at the National Institutes of Health.

Crime victims and victim advocates, on the other hand, see IGG as a tool for justice. According to Erin Ryan, executive director of the Sherry Black Foundation, “It’s not just about rules and regulations, it’s about a victim’s right to justice. We need to regulate this technology, or we will keep losing ground—law enforcement is losing ground, and victims deserve justice.”

Balancing Justice and Privacy

With more than 26 million people having taken a home genetic test, states have been grappling with how to balance justice and individual rights to privacy.

In 2021, Maryland and Montana became the first states to enact laws regulating how direct-to-consumer genetic databases can be used by law enforcement during criminal investigations. Both states require police to obtain a court order before accessing a database. Maryland further narrows access to only the databases that inform consumers that their genetic information could be used for investigative purposes.

Earlier this year, Utah passed bipartisan legislation that not only defines the circumstances under which law enforcement can request the use of a database and an IGG service but also limits the charges and arrests that can be based on certain types of genetic information. The law, known as the “Sherry Black bill,” also establishes procedures for the destruction of a DNA specimen and remedies if law enforcement violates investigative protocols.

“One of the important things to note is, up until this bill passed, there were no guardrails in place in state law; it was kind of a free-for-all,” says bill sponsor Utah Rep. Steve Eliason (R). “[The bill] makes it very clear that if law enforcement were going to use this investigative genetic genealogy data, they have to be using only databases that have made the consumer aware that the data could be used for that purpose.”

Texas has similarly enacted legislation with consumer privacy protections, but the onus is placed on the direct-to-consumer genetic testing companies. Under the new law, these entities cannot disclose genetic data to law enforcement or another governmental body unless the individual from whom the sample was obtained has provided written consent or the court has issued a warrant. Disclosure outside of these circumstances could be construed as a violation of the individual’s “property right” to biological samples as established by the bill.

Opponents of the legislation argued that having to obtain consent from or a warrant for an individual who is a relative of the suspect but unknown to investigators could hinder law enforcement. The law took effect on Sept. 1.

Investigative genetic genealogy is a significant DNA advancement, and all parties agree regulations and best practices are needed. Legislators are carefully balancing the value of this tool: solving violent crimes while simultaneously protecting those that do not want their DNA to be available to law enforcement as part of criminal investigations. 

Kate Bryan is a policy specialist in NCSL’s Criminal Justice Program.

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