A bill addressing law enforcements use of genetic genealogy DNA databases like GEDmatch and Ancestry failed to pass the Utah House of Representatives late last week amid concerns it was not specific enough to prevent police “fishing expeditions.”
The bill would have been the third in the nation to specifically address the use of third-party genetic genealogy databases in police investigations.
House Bill 340 “Forensic DNA Privacy Amendments” was sponsored by Rep. Steve Eliason (R-Sandy), and was presented during a House Law Enforcement and Criminal Justice Committee in mid-February with the support of Greg Miller, CEO of the Larry H. Miller Group, who lost his mother-in-law Sherry Black in 2010 when she was fatally stabbed inside her bookstore.
Opponents of the bill, however, expressed their concerns with the vagueness of the text, including the fact that—as written—it doesn’t explicitly demand a warrant for law enforcement to scope out commercial genetic genealogy databases.
House Bill 340 allows a law enforcement agency to request access to a genetic genealogy company’s database if:
- the agency possesses a DNA profile from forensic evidence that they believe is attributable to the perpetrator of a crime, the remains of an unidentified individual or a missing person
- the case for which the law enforcement agency requires the information is a qualifying case (violent felony, a crime in which the public safety is critically threatened or the identity of a missing or unknown individual)
- a routine search of CODIS revealed no DNA matches to the DNA profile
- a bureau familial search may limit future testing capabilities or cause a delay that would create a critical risk to public safety
- the law enforcement agency and prosecuting agency consult and agree that the genealogy database search is an appropriate and necessary step in the development of information that may contribute to solving the case, and
- the law enforcement agency and prosecuting agency commit to further investigation of the case if the genealogy database search produces information that may contribute to solving the case
While a warrant is not mentioned in this context, it is referenced in the next section pertaining to law enforcement collection of third-party DNA specimen for genetic genealogy processing.
“If the law enforcement agency concludes that the case-specific circumstances provide reasonable grounds to believe that a request for informed, voluntary consent would compromise the integrity of the investigation, obtain from the prosecuting agency authorization for a covert collection of the third-party DNA specimen… The law enforcement agency shall obtain a search warrant before agency may request a genetic genealogy service on the third-party DNA specimen,” the bill reads.
Even so, opponents of the bill, including Richard Englehart, head of government affairs for Ancestry, do not believe the singular reference to a search warrant is sufficient.
“Under the Fourth Amendment, law enforcement must have probable cause to obtain a warrant, and that warrant must be particular to the individual suspected of the crime. HB 340 would permit issuance of warrants allowing business to make certain data available to law enforcement through a process that would not meet the Fourth Amendment’s particularity standard,” Englehart said during the House Law Enforcement and Criminal Justice Committee in mid-February. “Law enforcement would be seeking access to go fishing in a database with potentially millions of consumers data and not the data specific to the person suspected of a crime.”
The bill was tabled at the end of the February meeting, before being returned to the Rules Committee on March 1 and ultimately failed three days later.
If the bill had passed, Utah would have been the third state in the U.S. to pass a law directly relating to law enforcement’s use of commercial genetic genealogy databases.
Maryland’s House Bill 240, which became effective in October 2021, allows covert collection of a third-party DNA sample only for putative perpetrators—with a search warrant that is predicated on establishing a justifiable risk to the investigation. The bill also includes extensive guidelines on said collection and subsequent storage. For example, 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.
Unlike Utah’s HB 340, Ancestry representatives worked with stakeholders in Maryland to sculpt HB 240.
Meanwhile, Montana’s House Bill 602 focuses specifically on search warrants. Under the bill, which was signed into law by Montana governor Greg Gianforte, 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.