A Square Double Helix in a Round Hole: Forensic Genetic Genealogy Searches and the Fourth Amendment
A forensic genetic genealogy search (FGGS) involves law enforcement’s use of consumer DNA databases to generate leads to solve cold cases. As a result of more modern technological processes, the DNA profiles kept in consumer databases are far more revealing than the DNA profiles stored in the FBI’s Combined DNA Index System (CODIS). Accordingly, each DNA profile in a consumer database can be used to identify hundreds of relatives related to the DNA’s contributor.
The government’s use of consumer DNA databases to locate the perpetrators of horrific, unsolved crimes has generated fans and critics. Supporters of FGGSs argue that, in light of the hundreds of thousands of unsolved crimes, this technique should be used in the name of justice and public safety. Critics of FGGSs argue that the government’s access to this kind of information is a Fourth Amendment violation, creating nationwide privacy risks since DNA profiles from only a small portion of the population could enable the government to identify nearly every citizen.
This Note analyzes FGGSs in light of current Fourth Amendment jurisprudence. In particular, this Note examines FGGSs under the Katz v. United States framework in light of the uncertainty generated from the landmark Supreme Court decision of Carpenter v. United States. Ultimately, this Note concludes that the Katz framework cannot provide a satisfactory answer for the constitutionality of FGGSs and that state-based positive law fails to provide a workable regulatory framework for FGGSs.
This Note proposes a pragmatic compromise. Similar to the Massachusetts Forensic Science Oversight Board, other states should create interdisciplinary oversight boards to monitor the use of FGGSs at the state level. These boards can implement policy consistent with the 2019 Department of Justice FGGS interim guidelines and update their programs as the federal government develops a more robust regulatory framework to guide the use of this novel and powerful technology.
A Square Double Helix in a Round Hole: Forensic Genetic Genealogy Searches and the Fourth Amendment,
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol39/iss2/14