Maryland and Montana have become the first U.S. states to pass laws that make it tougher for law enforcement to access and search consumer DNA databases for forensic genetic genealogy, or investigative genetic genealogy, purposes.
Maryland senator Charles Sydnor (D) has been targeting investigative genetic genealogy since February 2019. One of his previous bills died, but House Bill 240 has now passed both chambers. Maryland governor Larry Hogan (R) did not sign the bill, but allowed it to become law.
Effective Oct. 1, 2021, law enforcement in Maryland can use consumer genealogy websites, such as GEDmatch, 23andMe and Ancestry, only for the serious violent crimes of murder, rape, felony sexual offense or a public safety/national security criminal act.
Under the new law, law enforcement must seek written approval from a third-party non-suspect for collection of DNA and subsequent searching. If a third-party does not consent to providing a reference sample, law enforcement may not collect a covert sample.
That changes slightly for a putative perpetrator. The law requires investigators seeking covert collection 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,” and efforts must cease after 6 unsuccessful months. Covertly collected DNA can only be subjected to an STR test to see if it matches the STR DNA profile from the original forensic sample.
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.
The law also opens the door to forensic genetic genealogy for those already convicted of a crime. Under HB250, 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 human remains has the scientific potential to produce exculpatory or mitigating evidence.
In the 2+ years since the initial bill proposal, Sydnor and Delegate Emily Shetty (D) worked with stakeholders in the forensic genetic genealogy industry to re-author the current version. HB240 has now been endorsed by both the Maryland Chiefs of Police Association and the Maryland Sheriffs’ Association.
Montana’s House Bill 602, sponsored by representative and college student Mallerie Stromswold (R), focuses specifically on search warrants.
Under the bill, which was signed into law by Montana governor Greg Gianforte (R), a search warrant is required for law enforcement to obtain search results from a consumer DNA database, unless the consumer previously waived their right to privacy.
Additionally, investigators may not obtain familial DNA search results or search results from partial matching from the DNA identification index or a consumer DNA database without a search warrant issued by the court on a finding of probable cause.
These two bills are the first in the nation to specifically target forensic genetic genealogy. And while it may seem like they make it harder for law enforcement to obtain DNA samples, not much in the industry will change in the short-term.
“We fully support legislation that provides consumers with stronger privacy protections. Customer privacy and transparency are core principles that guide 23andMe’s approach to responding to legal requests and maintaining customer trust. We closely scrutinize all law enforcement and regulatory requests and we will only comply with court orders, subpoenas, search warrants or other requests that we determine are legally valid. To date we have not released any customer information to law enforcement,” a spokesperson for 23andMe told TechCrunch.
Ancestry is another company that will only share information with law enforcement with a valid court order or search warrant. In fact, Ancestry worked with representatives in Maryland on HB240.
GEDmatch, the preferred database of forensic genetic genealogists, and FamilyTreeDNA—both of which opt users into law enforcement searches by default—told The New York Times they have no plans to change their existing policies in response to the new regulations in Maryland and Montana.