Last week officers with the Sacramento County Sheriff's Department arrested Joseph James DeAngelo, the suspected Golden State Killer who allegedly committed a dozen murders, at least 50 rapes, and more than 100 burglaries in California between 1976 and 1986. Police made the arrest after uploading DeAngelo's "discarded DNA" to one of the increasingly popular genealogy websites. Using information from the site, investigators were able to find DeAngelo's distant relatives, thereby significantly narrowing their list of suspects. This investigatory technique is worth keeping an eye on, not least because millions of people are using DNA-based genealogical sites.
I'm one of them. I've signed up to 23andMe as well as MyHeritage, both of which offer DNA analysis. I did this in part because family history is a minor hobby of mine, but also because 23andMe offers interesting medical information. While both companies offer a DNA service, I've only used 23andMe's because MyHeritage allows its users to upload 23andMe data. One of the features of MyHeritage is its "DNA Matching" service, which updates me when a distant relative is found thanks to automated DNA analysis.
This month alone MyHeritage has altered me to the existence of two more 3rd - 5th cousins. This DNA Matching service has identified hundreds of my distant relatives, with varying degrees of confidence. 23andMe has a similar relative-finding feature. MyHeritage and 23andMe, as well as Ancestry.com, have all denied working with law enforcement in the Golden State Killer case.
According to The New York Times, investigators sent the suspected Golden State Killer's DNA to GEDmatch, a free genealogical service. A GEDmatch release stated that it had not been approached by law enforcement and warned customers, "If you are concerned about non-genealogical uses of your DNA, you should not upload your DNA to the database."
The Times report included this important paragraph:
The detectives in the Golden State Killer case uploaded the suspect’s DNA sample. But they would have had to check a box online certifying that the DNA was their own or belonged to someone for whom they were legal guardians, or that they had “obtained authorization” to upload the sample.
Investigators obviously didn't have DeAngelo's authorization. However, it's unlikely that they were constitutionally required to obtain it. From Technology Review:
[GEDmatch co-creator] Rogers didn’t say whether he thought police had acted legally or not, but he says the rule on his website is that “it’s only with a person’s permission.”
Investigators, of course, didn't have authorization from DeAngelo to use his DNA. However, it seems likely they would not have needed it. “Under current constitutional law, the government has a tremendous amount of discretion in how to use crime-scene evidence,” says Erin Murphy, a professor of law at New York University. “DNA abandoned by the perpetrator of a crime basically has no legal protection.”
What's particularly interesting about this case is that it doesn't involve police identifying a GEDmatch customer as a suspect and then seeking that suspect's DNA profile as part of an investigation. Rather, investigators used GEDmatch to build a family tree of the suspect based on information GEDmatch customers had volunteered. GEDmatch's website includes this warning, "DNA and Genealogical research, by its very nature, requires the sharing of information. Because of that, users participating in this site should expect that their information will be shared with other users."
23andMe and Ancestry.com both mention law enforcement in their privacy policies. These policies discuss law enforcement in the context of law enforcement seeking customers' data. For instance, 23andMe's policy states (emphasis mine), "Under certain circumstances your information may be subject to disclosure pursuant to judicial or other government subpoenas, warrants, or orders" and Ancestry.com's policy includes the following, "We may share your Personal Information if we believe it is reasonably necessary to [...] Comply with valid legal process (e.g., subpoenas, warrants)."
It's laudable that these private companies have made commitments to protect their customers' privacy, but the Golden State Killer investigation did not rely on investigators directly accessing GEDmatch customers' information. Rather, it relied on GEDmatch to do what it's product is designed to do: find relatives.
Law enforcement use of genealogical sites is a rare investigatory technique. According to a 23andMe spokesperson, the company has only “had a handful of inquiries over the course of 11 years." Ancestry.com's 2017 transparency report revealed that the company had only received 34 valid law enforcement requests that year, only 19 of which came from American law enforcement agencies. Each one of these 34 requests related to credit card fraud or identity theft.
Although rare, we should prepare for a time when this kind of investigation is widespread. I doubt that any of DeAngelo's distant relatives will be upset that their genetic information was used to aid an investigation into a serial killer and rapist, but we should consider what law enforcement looks like in a world where "genetic informants" are commonplace. As UC Davis Law Professor Elizabeth Joh told The New Republic, "Do you realize, for example, that when you upload your DNA, you’re potentially becoming a genetic informant on the rest of your family? [...] And then if that’s the case, what if you’re the person who didn’t personally upload the DNA, but you discover that your family member has done that?”
Roger Pilon and Jim Harper have already commented on the substance of Maryland v. King, but I wanted to highlight an aspect of the ruling that has raised some eyebrows, the lineup of justices. Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, and Breyer. Meanwhile, Justices Ginsburg, Sotomayor, and Kagan joined Justice Scalia's hard-hitting dissent. Breyer with the "conservatives," Scalia leading the "liberals"; what's going on here?
Not that much, actually, in terms of jurisprudential surprises. As Orin Kerr points out, Justice Scalia has been on the defendants' side in every non-unanimous Fourth Amendment case -- King (DNA-swabbing of arrestees), Bailey (detention incident to search), Jardines (dog-sniffing a home), and McNeely (warrantless blood draw of DUI suspect) -- while Justice Breyer has been on the prosecutors' side in each of those cases.
And the current term isn't an anomaly. In 2009, for example, Scalia joined the majority in overturning the Court's precedent that had allowed police to search a car upon arresting its driver in the case of Arizona v. Gant (which Scalia mentions in a law-nerd-witty footnote 6 of his King dissent). The same thing happened in another case that year, Melendez-Diaz v. Massachusetts, this time involving the Sixth Amendment's Confrontation Clause. Indeed, in both of those 2009 cases, Justices Scalia and Thomas joined Justices Stevens, Souter, and Ginsburg (then also the most "liberal" justices).
What happens in such cases is that the most originalist justices, those who like clear bright-line rules rather than mushy standards or balancing tests, join with justices who bend over backward to grant relief to criminal defendants, against those with law-and-order (Alito) or technocratic (Breyer) or establishmentarian (Roberts, Kennedy) tendencies. Granted, Justice Thomas has been less consistent in that sense this term, but that's the dynamic to consider when looking at seemingly weird splits in criminal procedure cases.
Justice Anthony Kennedy seems to be carving out his place as the Supreme Court justice who doesn't "get" identity. Maryland v. King was the case issued today that shows that.
His opener was the 2004 decision in Hiibel v. Sixth Judicial District Court of Nevada, which ratified laws requiring people to disclose their names to police officers on request.
In that case, Deputy Lee Dove of the Humboldt County (NV) Sheriff's Department had received a report that a man had slugged a woman. He didn't know the names of the alleged perpetrator or the victim, but Dove found Larry Hiibel standing next to his truck at the side of the road talking to his seventeen-year-old daughter seated inside. Dove didn't check to see if they were having a dispute, or if anyone had hit anyone. He just started demanding Hiibel's ID.
"Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder," Justice Kennedy wrote, approving Hiibel's arrest for refusing to show his papers:
On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
Even if he had gotten Larry Hiibel's ID, that wouldn't have told Dove any of these things. Dove would have had to stop his battery investigation to investigate Hiibel's background, which he didn't do until after he had arrested Hiibel--and after his partner had thrown Hiibel's distraught daughter to the ground. (There's your battery.)
In Maryland v. King, Justice Kennedy did it again. He wrote the decision approving DNA identification of arrestees. Like demanding Hiibel's ID, which had no relation to investigating battery, Maryland's practice of collecting DNA has no relation to investigating or proving the crime for which King was arrested, and it does nothing to administer his confinement. This Justice Scalia made clear in a scathing dissent.
The Court alludes at several points to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here. (citations omitted)
Justice Kennedy appears to think there are certain behaviors around detention and arrest that law enforcement is allowed without regard to the detention or arrest. Here, he has sanctioned the gathering of DNA from arrested people, supposedly presumed innocent until proven guilty, to investigate the possibility of their connection to other, unknown crimes. His logic would allow searching the cell phone of a person arrested for public drunkenness to see if they have participated in an extortion plot.
There is plenty of time to run DNA identification data past cold case files after conviction, and all parties agree that's what would have happened in King's case. Given that, the Supreme Court has upheld DNA-based investigation of innocent people for their connections to cold cases because they happen to have been arrested. That's the strange result of Maryland v. King.
That's why the House of Representatives has put "Katie's Law" (H.R. 4614, the Katie Sepich Enhanced DNA Collection Act of 2010) on the "Suspension Calendar" today. That's the procedure for considering non-controversial bills, giving them about 20 minutes of debate.
The bill would promote collection of DNA samples from people based simply on their arrest for certain crimes. Needless to say, being arrested is nothing close to conviction of a crime, at which time it might be fair to collect a person's DNA for use as a powerful identifier in later criminal investigations. And if DNA evidence is relevant, let it be collected and used according to existing procedures.
But getting your DNA put in a database just because an investigator got you in his or her sights? It's the reverse of "innocent until proven guilty."
My 2004 Cato Policy Analysis, "Understanding Privacy -- and the Real Threats to It," talks about how government programs intended to do good have unintended privacy costs. "The helping hand of government routinely strips away privacy before it goes to work," I wrote.
There could be no better illustration of that than the recent CNN report on government collection and warehousing of American babies' DNA. "Scientists have said the collection of DNA samples is a 'gold mine' for doing research," notes a sidebar to the story.
I have no doubt that it is---and that government-mandated harvesting of this highly valuable personal data from children is an unjust enrichment of the beneficiaries.
. . . is not in doubt. But as technology advances, it will not be as strong an identifier as it has been up to now. Scientists have demonstrated that they can fabricate it.
I wrote about the qualities of identifiers - fixity, distinctiveness, and permanence - in my book Identity Crisis. The ability to fabricate DNA renders it slightly less distinctive.
Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will "have the back" of the police. Biden is a lawyer, a senator, and former chairman of the Senate's Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups. The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate. The separation of powers principle means that judges must maintain their impartiality and "check" the police whenever they overstep their authority. To abdicate that responsibility and to "go along with the police" is to do away with our system of checks and balances.
As it happens, The New York Times has a story today about one Jeffrey Deskovic. He got caught up in a police investigation because he was "too distraught" over the rape and murder of his classmate. When there was no DNA match, prosecutors told the jury it didn't really matter. Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?
On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.