GETTING IT RIGHT : LAW ENFORCEMENT'S USE OF ANCESTRY WEBSITES TO CATCH CRIMINALS.

• Author: Brockmyre, Mackenzie L.

1. Introduction

   For the past thirty years, deoxyribonucleic acid ("DNA") evidence has been the gold standard in forensic science to solving criminal cases. (1) The advent of DNA use in the late 1980's opened a world of possibilities previously unavailable to investigators. (2) Prior to this revelatory discovery, the public perceived crime scene investigations as little more than conjecture. (3) Of course there was more to the methodology than purely educated guesses; nonetheless, there is a long history of individuals that were incarcerated and have hence been exonerated by the use of DNA. (4) Using DNA to solve cases, notably those involving sexual assault, is becoming more prevalent because of decreasing costs and improved accuracy of test results. (5)

   DNA use since its inception has influenced criminal investigations in a way as groundbreaking as the Industrial Revolution's impact on advancement in modern society. (6) As Modern society moves beyond the Second, and even Third Industrial Revolution ("Digital Revolution"), into the midst of a so-called "Fourth Industrial Revolution" headlined by artificial intelligence and autonomous cars, DNA evidence will continue to evolve. (7) These technological innovations and countless more all advance at a breakneck pace, leaving people and companies behind. (8) Consequently, those legislative bodies who make the law, and the judiciary who interpret it are on an even greater curve when it comes to catching up to technological changes in society. (9) Nevertheless, the courts are trying to adapt to the changing times. (10)

   This delay in how the law catches up to societal reality is displayed in the advancement of law enforcement's use of DNA, and how the judiciary views it from an evidentiary and constitutional perspective. This Note reflects on one of the most recent trends in DNA use in criminal investigations: law enforcement, on the state and federal levels, using DNA collected through "genealogy websites", such as www.ancestry.com and www.23andme.com, to match DNA collected at crime scenes to suspects. There is little debate surrounding consensual submissions of DNA to these databases. However, the motivating issue is whether those who do not submit their DNA to the websites have legal recourse if they are connected to a crime through such investigatory methodology. Foundationally, this Note explores the rise of DNA in the criminal justice system and how the law has treated it over the years. Part II discusses the explosion of genealogy websites and how law enforcement uses these websites to their advantage in creating "DNA trees" to indict and obtain convictions. In a culmination of the preceding topics, Part III discusses the facts surrounding the contemporary issues of law in discussing how legislatures and judiciaries at the state and federal levels are grappling with this new phenomenon. Finally, Part IV analyzes the right of privacy that third parties have to their personal, genetic material. This Note concludes that law enforcement should have the right to access genealogy websites for the purpose of comparing DNA found at crime scenes.

2. History

   1. From Bloody Fingerprints to the Human Genome: The Rise of DNA and its use in Criminal Investigations

      1. A Brief History of Fingerprinting and Blood Analysis

         Fingerprints have long been held as a way to identify a person. (11) Each individual touts prominent features on their hands and feet, which leave behind unique impressions when an object is touched. (12) Fingerprints have obviously existed as long as humans, and their use as a tool for purposes of identification stem from ancient times. (13) However, it was not until the late 1800s that fingerprints were established as individually unique and wholly persistent among the population. (14) Following society's acceptance of fingerprints as unique identifiers, this evidence made its way into the courtroom, exemplified by one of the first murder convictions using fingerprint evidence in Chicago in 1910. (15) This new form of evidence was met with fervent criticism as to its efficacy and reliability by defense attorneys. (16) While fingerprinting has taken on a significant role in the United States law enforcement and judicial system, contention still surrounds potential deficiencies and shortcomings. (17)

         In addition to fingerprint analysis, criminal investigations have historically relied on blood factor analysis called "blood-typing". (18) However, when criminologists and forensic scientists began analyzing blood types for investigative purposes, they quickly ran into issues rendering "blood-typing" as largely ineffective. (19) The advent of DNA technology saved the statistical deficiencies of blood typing that plagued the legal system. (20) In 1984, the world changed when Dr. Alec Jeffreys, quite accidentally, discovered that repetitive patterns of DNA present in every human being varied for each individual, thus ushering in the technique known as "DNA fingerprinting". (21)

      2. DNA's Ascension and how the Law Grappled with the Technological (R)Evolution

         DNA was first discovered in 1869; however, there was no knowledge of how it functioned until the early 1950's when James Watson and Francis Crick discerned the substance's structure. (22) Watson and Crick's discovery led to Dr. Jeffreys' accidental realization that DNA can differentiate between two individuals with 99% accuracy in 1984. (23) Shortly after Dr. Jeffreys showed the world the power of DNA, he was asked to assist with two seemingly connected crimes. (24) There were three important outcomes from these cases: (1) the same killer was responsible for both crimes, even though the crimes happened three years apart; (2) DNA was able to exonerate an innocent man even after he had confessed to the crimes; and most importantly (3) DNA was able to identify the person responsible for the crimes. (25) Interestingly, this research introduced the concept of DNA "dragnets", which have been replaced by government and direct-to-consumer ("DTC") computerized databases. (26) However, the legality of the DNA evidence was not tested in the English court, leaving the new science's admissibility an open question both in England and the United States. (27)

         The first case to test the admissibility of DNA evidence, more specifically "genetic fingerprinting" was Andrews v. Florida, where the District Court of Appeals held that it was indeed admissible. (28) While this was a victory for prosecutors because it gave them a mighty tool to indict and convict criminals, the legal battle over the admissibility of DNA had only begun. (29) As courts began to grapple with DNA testing, a new testing methodology emerged called "polymerase chain reaction" ("PCR"), inviting another round of challenges from defense attorneys. (30) Luckily, a string of cases in 2001 solidified PCR's place in the courtroom by ruling the new process scientifically sound and admissible. (31)

         Over the thirty years that DNA testing has been used in criminal cases, it is estimated that millions of convictions have been secured. (32) Convictions have been obtained more efficiently by the institution of DNA databases, which made dragnets a thing of the past and enabled law enforcement to classify and store DNA obtained from prior offenders. (33) The federal DNA Identification Act of 1994 mandated the Combined DNA Index System ("CODIS"), which is handled by the FBI. (34) The Violent Crime Control and Law Enforcement Act was implemented the same year, and ensures uniform standards in the collection, analyzation and forensic testing of DNA. (35) The Justice for All Act of 2004 materially changed the DNA Identification Act of 1994 through expansion of the list of offenses for which federal samples are collected, enhancement of criminal penalties for unauthorized use of CODIS, and updated accreditation standards for labs. (36) In addition to CODIS, all fifty states maintain DNA databases. (37) The explosive growth of databases nationwide led to "cold hits", where no suspect has been identified, but evidence from crime scenes are matched to databases that resulted in a match from a previously convicted criminal. (38) Legislatures, recognizing the potential of databases to assist law enforcement, began to authorize "John Doe" or "DNA" warrants, which are not issued for a particular person, but for a particularized genetic code. (39)

         An ancillary, and what would hopefully be unintended consequence of establishing national databases, such as CODIS, is the racial disparity of the stored information. (40) Based on a Bureau of Justice statistical model, a young black man in 1996 had a 28.5 percent chance of being incarcerated at any point in his lifetime. (41) The incarceration rate ties to the number of DNA samples that national or statewide databases have on file, thus skewing any database result toward minority groups. (42) Consequently, while DNA has revolutionized criminal investigations, it spotlights one of the more troubling issues in America's criminal justice system. (43)

   2. Origin of Genealogy Databases and How They Came Online

      Genealogy has quickly become a popular hobby in the United States. (44) The obsession has an interesting, albeit somewhat ignominious, history shrouded in what some may consider elitism and religious fixation. (45) Beginning in the 1960s, the Mormon Church opened genealogical libraries throughout the United States and the next decade saw more non-Mormon's coming to the libraries to research ancestral trees. (46) The proliferation of the internet in the 1990s allowed genealogical databases, which stored large amounts of information, to be digitized and allowed genealogical hobbyists to conduct research from the comfort of their own homes. (47)

      The big genealogy companies such as 23andMe.com and Ancestry.com used to market the at-home DNA testing kits as ways to test for diseases and understand your body. (48) Now, the pitch is to...