In February 2019, Senator Charles Sydnor (D-MD) proposed a bill that would prohibit law enforcement from using any publicly available DNA database for investigative genetic genealogy purposes, calling it an overreach and a violation of the constitution.
That bill died, but another authored by Sydnor and Delegate Emily Shetty unanimously passed in the Maryland House last week. However, it has a distinctly different flavor than its 2019 counterpart.
In the 2+ years since the first bill proposal, Sydnor and Shetty worked with stakeholders in the forensic genetic genealogy industry to re-author a version that would allow law enforcement to do its job while also protecting the public’s constitutional privacy. In fact, HB420 has been endorsed by both the Maryland Chiefs of Police Association and the Maryland Sheriffs’ Association.
If HB420 passes the Senate and takes effect in Autumn 2021, it will be the first bill in the nation to officially put safeguards and a legislative framework around forensic genetic genealogy.
The bill limits the use of genealogy databases to the investigation of murder, rape, felony sexual offense, kidnapping, human trafficking or a public safety/national security criminal act. Prior to May 2019—before there was an “opt-in to law enforcement” option—the creator of GEDmatch made the database available to law enforcement for the investigation of homicides and/or sexual assaults. Then, in May of that year, law enforcement accessed it to identify the perpetrator of a violent non-sexual assault. That is when the creators turned on the opt-in form for anyone uploading DNA data.
HB420 also addresses the collection and storage of DNA samples and other evidence. The bill requires law enforcement seeking to collect a covert DNA sample to have prior authorization from the court, which is predicated on establishing a justifiable risk to the investigation. If authorized, law enforcement must collect the sample without “intrusive surveillance and invasions of privacy.” Any covertly collected DNA sample that does not match the target STR DNA profile cannot be uploaded to local, state or federal DNA databases. Additionally, genetic genealogists working on the investigation team will not be allowed to keep any records or materials pertaining to the case.
Under HB420, a defendant charged or convicted of a violent crime can file an affidavit for forensic genetic genealogy services for postconviction DNA testing. The court must first decide whether a genetic analysis of biological material from the crime scene or from unidentified human remains has the scientific potential to produce exculpatory or mitigating evidence.
The timing of the bill is incredibly important for forensic laboratories. Already approved in the House, HB420 is likely to pass in the Senate soon. If that occurs, the bill will take effect Oct. 1, 2021. However, the bill states that a licensing program for laboratories performing SNP or other sequencing-based testing on evidence in support of forensic genetic genealogy must be established by the state’s Office of Health Care Quality no later than Oct. 1, 2022. A licensing program for individuals performing genetic genealogy has until Oct. 1, 2024 to come together.
In the meantime, the bill specifically states that no laboratory or individual shall be prohibited from testing or investigation until a year after the programs’ establishment. Lastly, HB420 tasks the Maryland Forensic Laboratory Advisory Committee with establishing best practices for performing SNP testing, as well as minimum qualifications for performing forensic genetic genealogy.