Is There a Federal Right to Genetic Privacy?

By Victoria Romine.

What is Genetic Genealogy?

Ever since the 2018 capture of Joseph DeAngelo, California’s infamous Golden State Killer, genetic genealogy has been used to solve hundreds of unsolved crimes. Law enforcement uses genetic genealogy by submitting DNA from an unsolved crime to a consumer DNA database, such as GEDMatch or Ancestry DNA, to search for a familial match. Once a match is produced, law enforcement can use it to develop family trees of the matching sample, with the ultimate goal of identifying the perpetrator of the unsolved crime. However, despite the benefits of solving cold cases, critics have contended that genetic privacy should be given more protection under the law. Unlike DNA testing in law enforcement databases, like the Combined DNA Index System (CODIS), which is limited to identification only, DNA testing in private databases reveals a person’s sex, physical appearance, medical conditions, genetic history, and ancestral origin. Critics argue that such personal information should be protected from the government absent consent or a warrant. While no court has ever ruled on the issue, any defendant arguing for legal protection faces an uphill battle due to the current state of the law.

Is the Government’s Use of Genetic Genealogy to Solve Crime Unconstitutional?

Critics argue that the Fourth Amendment protects individuals against police intrusion on their privacy, which includes the genetic information in DNA. While it is true that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” the Supreme Court has delineated a requirement that could pose a problem for those concerned with privacy: Fourth Amendment standing.

The term “standing” generally refers to which parties are allowed to bring a particular claim in court. In Fourth Amendment cases, the Supreme Court has held that a person may only bring a claim for suppression of evidence if her reasonable expectation of privacy has been invaded—as opposed to someone else’s. For instance, a claim concerning an unlawful search of another person’s home revealing evidence of the defendant’s crime could not be brought by the defendant if he had no privacy interest in the home. There is a similar argument in familial DNA. Because police can only use DNA samples uploaded to an open-source database, presumably belonging to a distant relative of the suspect, the suspect’s own reasonable expectation of privacy is not infringed, despite the sensitive information contained in his relative’s DNA. Consequently, the suspect is not able to claim Fourth Amendment protection.

What Now?

Genetic genealogy has the promise to solve some of the nation’s darkest crimes. For example, police have confirmed that they are using genetic genealogy in the Zodiac killer case, which has remained unsolved for almost 50 years. Although critics worry about the privacy implications of the government having warrantless access to genetic information contained in these databases, there is likely no Fourth Amendment protection. However, this is only true under the federal constitution. States have the freedom to impose stronger protections for genetic privacy. Currently, twelve states (including Arizona) have adopted familial DNA testing in state-run DNA databases, but, perhaps because of the newness of the practice, no state has explicitly addressed the legality of doing the same with private databases. That being so, Maryland has explicitly forbidden familial searching in government databases and looks to ban genetic genealogy in police investigations as well. Several states have stronger protections under their equivalent of the Fourth Amendment as well, which may be used as a vehicle to protect defendants’ genetic privacy. Therefore, it is likely that any sort of legal protection for genetic privacy will have to find its root in the state legislatures and courts, and not under federal law.

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Victoria Romine

J.D. Candidate, 2021

Victoria Romine is originally from Riverton, Kansas and is currently a 2L at ASU Law.  After graduating summa cum laude from Pittsburg State University (in Kansas), she moved to Phoenix to pursue a JD at ASU.  She is currently working with the Maricopa County Public Defender’s Office and has secured a Summer Associate position at Perkins Coie, where she will work in commercial litigation.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.