It may feel like the U.S. is full steam ahead with forensic/investigative genetic genealogy (FIGG), but there are still many steps to be taken, as evidenced by ongoing legislation in Maryland, Montana and Utah.
That being said, FIGG is undoubtedly a U.S. technique, practiced often in the nation, especially when compared with little activity in other countries. Nathan Scudder, Coordinator of Research and Innovation with the Australian Federal Police, sees this as an opportunity—one that needs to be seized upon immediately.
“Genealogy is an international endeavor. You can’t contain this to one jurisdiction,” Scudder said during his presentation Tuesday at the 33rd International Symposium on Human Identification (ISHI).
If countries do not work cooperatively on an FIGG framework, the forensic community could end up with a fractured system vulnerable to inadvertent legal missteps.
For example, the New Zealand Law Commission Report contains a recommendation on FIGG regulation. While the guidance hasn’t been acted on yet, if it is, it could make the system more complex than necessary. Imagine a system in which you, legally, would need a New Zealand-specific license to work a genealogy case that has a match in that nation. How would you even know your match was from New Zealand at the beginning of the case?
“There are going to be challenges for all of us unless we can really get that solid framework in place, or we’ll be carrying around hundreds of licenses to practice FIGG all around the world,” cautioned Scudder.
Major and minor differences
Currently, there are more than a few areas of difference for FIGG at the international scale. Reference testing is a big one—particularly, arrangements for international testing.
For criminal investigations, the process of transferring a DNA profile from one country to another involves a multitude of stakeholders and a plethora of legal guidelines. However, right now, any U.S. State Police agency could—and has—directly call an Australian citizen and ask for a reference test for FIGG. Without a framework, police from any country can easily and legally bypass the channels necessitated in traditional DNA analysis.
Terminology is another arena of difference. For law enforcement to upload a case on GEDmatch Pro, the case must be a “violent crime, where violent crime is defined as murder, non-negligent manslaughter, aggravated rape, robbery, or aggravated assault.” However, some of those terms do not align at the international level.
For example, in Australia, infanticide—when a mother kills their child under the age of 12 months—is not considered murder. Likewise, Australia’s definitions of aggravated assault and aggravated sexual assault are slightly different than the U.S versions of aggravated assault and aggravated rape, respectively.
Of course, the largest area of difference is privacy laws, which is why Scudder believes a “privacy by design” approach is the key to international FIGG cooperation.
“The ‘opt-in’ arrangement of FIGG needs more scrutiny,” said Scudder. “There’s potential there to look at how we can provide members of the public with more information about the technique. That would enhance the process further.”
Beyond informed consent, Scudder says the community should focus on ways to enhance public trust, which could include case reviews, academic papers, interviews/presentations, and even increased awareness for lawyers and judicial officers.
In Australia, the New South Wales Police force is leading a comprehensive privacy impact assessment that looks at a specific process and asks questions like: Is there a more privacy-compliant means of achieving the same objective? What are the unforeseen implications?
In the context of designing an FIGG framework, this involves putting in place processes and technologies that minimize the privacy risks, whether that be in-house or with third-party vendors. It also involves regular consulting with a variety of stakeholders, as well as promotion of a privacy culture.
Next steps
While it may seem like a huge task—and privacy law comes with its own set of issues—the forensic community has been here before, in the 1990s with the CODIS core markers. Work done by the Technical Working Group on DNA Analysis Methods to standardize STR markers not only led to the 1994 DNA Identification Act in the U.S., but also served as a blueprint for similar legislation internationally. Now, CODIS software is used in over 50 countries, and is instrumental to international casework, humanitarian work and missing persons investigations.
To get started, Scudder suggests an international working group with a top-down approach that first addresses the top-level principles nations all agree are vital to FIGG. Then, moving toward standardization of case types and definitions is likely to make the framework process easier and more streamlined.
Eventually, Scudder said he hopes there is strong consideration given to some type of International Organization for Standardization (ISO) guidance document or technical note.
“These aren’t international standards, but they are on their way to being standards,” said Scudder. “They could certainly allow for that kind of international discussion.”
As Scudder notes, the ISO already has a Table Committee—272—with members from multiple nations dedicated to standardization and guidance in the field of forensic science.
“That could potentially be an avenue to really lift this up to an international level,” said Scudder.