News 06.01.21

Maryland Just Enacted a Historic Law Preventing the Misuse of Genetic Information

The new legislation is a big step toward protecting the privacy of innocent people and advancing fairness in the system.

By Sarah Chu and Susan Friedman

A technician washes an array used in DNA genotyping and sequencing, searching the genome for small variations called single nucleotide polymorphisms (SNPs). (Image: National Cancer Institute/Unsplash)

On Friday, Maryland enacted a law to regulate the use of forensic genetic genealogy — a technique used by law enforcement to identify suspects by analyzing their relatives’ DNA and constructing “family trees.” The law, sponsored by Senator Charles Sydnor III and Delegate Emily Shetty, creates judicial oversight over and laboratory licensing for the use of forensic genetic genealogy.

The first of its kind in the country, the new legislation is a huge step toward protecting the privacy of innocent people, advancing fairness in the system, and recognizing the power and responsibility of DNA technologies.

What is forensic genetic genealogy?

As an increasing number of people have voluntarily submitted their DNA to databases to learn more about their ancestry, law enforcement has turned to these databases when their own DNA profile system — known as CODIS — fails to identify a suspect from crime scene evidence. 

When no match can be found in CODIS, which contains short tandem repeat (STR) DNA profiles, law enforcement will conduct single nucleotide polymorphism (SNP) tests on evidence. Using this information, law enforcement can then search certain ancestry DNA databases like GEDmatch and FamilyTreeDNA for commonalities because the closer the biological relationship between two individuals is, the more DNA they share. Then they use public data  — including census records, social media, and other public databases — to build “family trees” and identify possible relatives of the person whose DNA was found at the crime scene. This process, known as forensic genetic genealogy, was most famously used to identify a suspect in the Golden State Killer case.

Maryland’s new legislation requires that this process only be used in investigations with the knowledge and oversight of a judge and establishes a panel of stakeholders to conduct an annual review of its use. The law also requires that labs performing forensic genetic genealogy be accredited by the Maryland Department of Health’s Office of Health Care Quality and limits its use to cases involving murder, rape, felony sexual assault, and criminal acts involving “circumstances presenting a substantial or ongoing threat to public or national security.”

John K. Thomas, Christopher Tapp, and Innocence Project Director of Special Litigation Vanessa Potkin at Mr. Tapp’s post-conviction relief proceedings on July 17, 2019. Forensic genetic genealogy helped identify the actual perpetrator in Mr. Tapp’s case, leading to his exoneration. (Image: Otto Kitsinger/AP Images for The Innocence Project)

Importantly, people charged or convicted of a violent crime will now have the ability to request permission from a judge to use forensic genetic genealogy testing to help prove their innocence — a key measure for wrongfully convicted people. Forensic genetic genealogy has already been instrumental in exonerating two innocent people to date. Additionally, the law requires all DNA samples and data generated by the forensic genetic genealogy process to be destroyed so they cannot be used for other unrelated purposes.

Why does forensic genetic genealogy need to be regulated?

While powerful tools like genetic genealogy have the capacity to exonerate the innocent, their unregulated application can negatively impact privacy and civil liberties.

DNA has been used in criminal cases for over 30 years and has helped to exonerate 375 individuals in the United States to date. Today, every state, Washington, D.C., and the federal government have forensic DNA laboratories that perform testing on biological evidence left at crime scenes. When a DNA profile is developed, these laboratories upload them to CODIS so law enforcement can search these records and be notified if there is a hit. The collection and storage of these profiles are regulated at the state and federal levels. However, there has been little to no oversight over when forensic genetic genealogy is used in a criminal case, how genetic material is collected from innocent people, how their genetic and family tree information is stored, and how their privacy rights can be protected. 

Genetic information is deeply personal and there are international human rights conventions that protect its use and collection. This is especially important when it comes to forensic genetic genealogy because SNPs can tell us a lot more about a person than STR DNA tests which are traditionally used in criminal cases.

Yet, before Maryland’s recent legislation, there was little to no government regulation of its use through forensic genetic genealogy in the U.S. And commercial privacy agreements have been insufficient for protecting people who have voluntarily shared their genetic information on direct-to-consumer websites like GEDmatch and FamilyTree.

For example, GEDmatch administrators violated their own terms of service by allowing Utah police to use the site for an assault case when their own rules only permitted law enforcement access for rape and murder cases. And in Florida, a judge gave Orlando police a warrant to gain access to the entire GEDmatch database, calling into question whether genealogy databases like Ancestry.com and 23andMe, which do not permit law enforcement searches, will be able to defend their privacy protections.

How Maryland is setting an example

Fortunately, Maryland’s new legislation requires law enforcement to get informed consent from non-suspects if they want to use the DNA profiles they contributed to commercial databases. The only exception to this is in cases where law enforcement can demonstrate to a judge that asking the non-suspect may pose a substantial significant risk to the investigation and this exception does not apply if the non-suspect has already refused to give consent.

Maryland’s historic legislation was developed as a multi-stakeholder, bipartisan effort that included the Maryland State Police, the MD Chiefs and Sheriffs Association, the Maryland State’s Attorneys Association, the Maryland Public Defender’s Office, bioethicists, academics, and advocacy organizations such as the Innocence Project.

This landmark law is setting an example for the country and the FBI, which will be reviewing and finalizing its interim policy guiding the use of forensic genetic genealogy by the Department of Justice and its agencies. Maryland can serve as an example of balancing public safety needs with a careful contemplation of privacy rights and the social impact of this potential tool.

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