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Privacy Fear for DNA Dragnet

by Tony WallStuff (New Zealand)
January 20th, 2013

Image: Illustration by Edel Rodriguez

A district court judge who is a world expert in forensic DNA has called for a public debate on the use of familial DNA testing, as police reveal they have now used the "last resort" method 38 times.

Judge Arthur Tompkins, an honorary member of Interpol's DNA monitoring expert group, says there needs to be a debate about the technique - which involves crime-scene samples being compared to the national DNA databank to search for relatives of an offender - before the technique becomes even more widespread.

"The effect of it is to increase the footprint of the database without Parliament having legislated for that increased footprint," the Hamilton-based judge said.

Critics of the technique say it raises serious privacy issues and has the potential to subject entire families to "life-long genetic surveillance". It has been banned in parts of the US, where the Columbia Law Review says the practice is not "racially neutral" and has a disproportionate impact on minorities.

Police national headquarters released figures to the Sunday Star-Times showing that they have asked Environmental Science & Research (ESR) to search the DNA database for partial, familial matches on 38 occasions.

But the strike rate has been low - as a result of familial searches there were only two people convicted.

Police say the method is used only as a last resort when all other lines of inquiry have been exhausted.

Tompkins said familial testing raised many issues of privacy and ethics. "It means that you have to worry about not only what you're doing, but also what your brother and uncle and father and children do. It means that people become involved in a police investigation solely on the basis of the genetic link."

The procedure could also cause conflict within families, revealing previously unknown relationships.

Tompkins said different jurisdictions treated the technology differently - it was banned in Canada and parts of the US but used without restriction in the UK.

"It's a debate we haven't had, and should have. It shouldn't be something that comes in by default."

Tompkins said the High Court had ruled the practice lawful, but "there probably should be a debate about it before it becomes more widespread. It should be something where our Parliament says ‘yes, this is how we're going to approach this issue' ".

The police national forensics manager, Inspector John Walker, said that although there was no specific legislation around familial DNA, police had "strong rules" around its use. It was used only for serious crimes such as rape and murder, where all other lines of inquiry had been exhausted.

"We don't use it very often, it's only when it's a serious unsolved crime and we've got nowhere else to go. Thirty-eight [searches] is quite a small number when you consider the number of investigations in that serious crime pool."

Walker said the privacy commissioner was happy with the way police were managing the technology.

"We believe we are putting safeguards in place. We're certainly not abusing it."

Walker said familial testing had been around since 2004, but there had been a lot more searches done since technology improved around 2008. Most of the 38 searches were of "cold case" rapes and murders, and only about four or five were for "new" cases each year.

Walker said the fact that there had been only two people convicted out of 38 searches simply meant that relatives of offenders did not have their DNA on the database, which today contains 140,000 samples, up from 64,000 in 2008.

"The hit rate for us is 8 per cent. In the UK they used it in 200 cases and found 44 offenders, a 20 per cent success rate. But when you look at their DNA database, they have 9.7 per cent of the population [on it], we have less than 3 per cent. The size of the database does matter."

However, New Zealand's database is growing quickly, after new legislation permitted police to take DNA from anyone they have arrested and intend charging with an imprisonable offence.

Civil liberties lawyer Stuart Cummings said familial testing was "moving closer and closer to the whole idea of banding people - a sense of, that's a bad lot and that's a good lot".

But it would always be subject to challenge in the courtroom, he said. "It's not something that juries like because it's not so black and white as [traditional] DNA."

Cummings said he backed Tompkins' call for a public debate on the technology.

"We should talk about when we're going to use this, what justifies it and what doesn't. At the moment, because there's been no debate and all the guidelines are created by police, it's potentially far more invasive than it needs to be."

But legislating for the use of familial DNA is not on the Government's radar. Justice Minister Judith Collins said she was happy that police use of the technique was well-managed and adhered to strict internal guidelines.

"The testing helps ensure the right people are brought to justice and avoids innocent people being prosecuted." 

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