Document Type

Article

Publication Date

4-2020

Abstract

Consumer genetics has exploded, driven by the second-most popular hobby in the United States: genealogy. This hobby has been co-opted by law enforcement to solve cold cases, by linking crime-scene DNA with the DNA of a suspect's relative, which is contained in a direct-to-consumer (DTC) genetic database. The relative’s genetic data acts as a silent witness, or genetic informant, wordlessly guiding law enforcement to a handful of potential suspects. At least thirty murderers and rapists have been arrested in this way, a process which I describe in careful detail in this article. Legal scholars have sounded many alarms, and have called for immediate bans on this methodology, which is referred to as long-range familial searching ("LRFS") or forensic genetic genealogy ("FGG"). The opponents’ concerns are many, but generally boil down to fears that FGG will invade the privacy and autonomy of presumptively innocent individuals. These concerns, I argue, are considerably overblown. Indeed, many aspects of the methodology implicate nothing new, legally or ethically, and might even better protect privacy while exonerating the innocent. Law enforcement’s use of FGG to solve cold cases is a bogeyman. The real threat to genetic privacy comes from shoddy consumer consent procedures, poor data security standards, and user agreements that permit rampant secondary uses of data. So why do so many legal scholars fear a world where law enforcement uses this methodology? I submit that our fear of so-called genetic informants stems from the sticky and long-standing traps of genetic essentialism and genetic determinism, where we incorrectly attribute intentional action to our genes and fear a world where humans are controlled by our biology. Rather than banning the use of genetic genealogy to catch serial killers and rapists, I call for improved DTC consent processes, and more transparent privacy and security measures. This will better protect genetic privacy in line with consumer expectations, while still permitting the use of LRFS to deliver justice to victims and punish those who commit society's most heinous acts.

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