Photo Credit: https://fordlawokc.com/post-conviction-dna-testing-oklahoma/.
By: Savannah Stewart
Member, American Journal of Trial Advocacy
Curating a personal family tree may reveal a lot about an individual’s origins, relationships, and whether a family member is a suspect in a criminal case. When law enforcement identified and arrested the Golden Gate Killer through the use of genetic databases, genetic genealogy became a breakthrough tool for the police.[1] The application of genetic databases to unsolved murders and rapes led to nearly 40 arrests.[2] The use of genetic genealogy in court was unprecedented until the case of William Earl Talbott II in 2019.[3] Talbott’s case was the first case to proceed to trial that involved law enforcement’s utilization of a genealogy website to solve a decade long cold case. The collaboration of police investigations with genealogy websites stirred up the question of whether the technique crosses privacy and ethical boundaries. Do the ends justify the means?
Tanya Van Cuylenborg and Jay Cook, a young adult Canadian couple, disappeared while visiting Seattle in 1987.[4] The two were shortly discovered dead.[5] The facts of the case were unusual because the police located the bodies 90 miles apart from each other.[6] The unidentified suspect raped and shot Tanya in one location then strangled Jay in another.[7] Law enforcement was not able to establish a suspect due to minimal evidence, and the case turned cold.[8]
Using Tanya’s rape kit, Parabon labs created a predictive image of what the suspect may have looked like from his semen.[9] Decades later, an investigator uploaded the DNA to GEDMatch, a public ancestry website, and the results concluded two matches to two second cousins from each side of a single family tree.[10] GEDMatch allows individuals to upload their results from DNA testing companies, such as 23andMe or Ancestry.com, for free to build their own family trees.[11] The website widened the scope of matches since it utilized DNA results from multiple sources instead of just one singular source.[12]
Investigators reversed engineered the family tree to the common ancestor in order to trace the lineage of the suspect’s family to identify the culpable family member.[13] The family tree pinpointed one male who was relatively close to the suspect’s estimated age at the time of the crime and lived remotely close to the site of Tanya’s body.[14] Law enforcement tracked the suspect and watched him over a period of time.[15] The suspect discarded a cup, and the police retrieved the cup to determine whether or not it matched the DNA found in Tanya’s rape kit.[16] The DNA confirmed that the suspect, William Earl Talbott II, was the man whose semen was found on Tanya’s body over thirty years ago.[17] The revelation of what DNA testing could do led to almost 40 arrests in what were considered to be cold cases.[18]
The FBI’s criminal DNA database, the Combined DNA Index System (CODIS), was unable to identify Talbott because CODIS requires the suspect to already be registered in the system.[19] Talbott would have had to have been a convicted felon or convicted of another major crime for CODIS to identify him as the suspect in Washington state.[20] Further, a majority of CODIS’s genetic pool is African-American while Talbott and the other suspects from the cold cases were white, middle class citizens with no criminal record.[21] For this reason, GEDMatch is a highly attractive tool to distinguish suspects since a large pool of GEDMatch’s users are white.[22]
The jury returned a guilty verdict for Talbott on two counts of murder for the murders of Tanya and Jay.[23] Although investigators found Talbott’s DNA on Tanya’s body, they were unable to identify Talbott’s DNA on Jay’s body.[24] The defense trusted the methodology and did not argue any ethical implications for using the public genetic database.[25]
Soon after, Curtis Rogers, the owner of GEDMatch, allowed law enforcement to use the database to investigate an attempted murder case that resulted in the arrest of a 17 year old high school student.[26] Those who opposed the utilization of genetic databases argued it was an improper use of the tool because it was not a rape or murder case.[27] GEDMatch altered its policies.[28] Today, GEDMatch users have the option to opt in or out for whether or not law enforcement may use their genetic information to pursue investigations relating to a set list of crimes.[29] Genetic databases used in pursuit of suspects raises Fourth Amendment issues in regard to the suspect’s reasonable expectation of privacy when the suspect did not consent to uploading his or her own genetical material to the site.
The Fourth Amendments protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[30] In Katz v. United States,[31] the court determined that “the Fourth Amendment protects people, not places.”[32] Therefore, the information an individual voluntarily shares with the public is not protected by the Fourth Amendment even when the information is shared in a private space such as a home or office.[33] However, the Fourth Amendment may apply when an individual chooses to keep personal information from being exposed to the public when present in a public area.[34] Justice John Marshall Harlan’s concurrence sets out the test to establish Fourth Amendment applicability.[35] A person, not a place, will be protected by the Fourth Amendment when “a person ha[s] exhibited an actual (subjective) expectation of privacy” and “that the expectation be one that society is prepared to recognize as ‘reasonable.’”[36]
In Smith v. Maryland,[37] the court held “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”[38] The fact that an individual believes the information disclosed to a third party will be subject to a “limited purpose” does not mean that there is a reasonable expectation of privacy because the individual “assumed the risk” of sharing information of his own volition.[39]
A police officer’s use of genetic data on a public genealogy website to identify suspects will not amount to a search under the Fourth Amendment because the information is not protected by a reasonable expectation of privacy. Personal genetic data disclosed to a public third party website is not secured by a reasonable expectation of privacy when it is in “plain view” of the officer on the internet.[40] However, a private genealogy website would most likely require a warrant before law enforcement could access genetic material.[41] Current case law does not affirmatively state whether or not genetic information uploaded to a private genealogy website could be accessible to law enforcement without a warrant under the third-party doctrine.
In Carpenter v. United States,[42] the Court limited the effects of the third-party doctrine in regard to “information [that] is not truly ‘shared’” on digital devices.[43] The limitation supports the notion that the third-party doctrine would not overcome the protection of the Fourth Amendment in regard to genetic information on private genealogy websites because “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere.”[44] Therefore, information that is disclosed to a third party but characterized as fundamentally personal and intimate will not be a bar to Fourth Amendment protection in the digital context.[45] The nature of genetic data is so personal and revealing that it will most likely receive protection from Fourth Amendment searches when the information is posted on private genealogy websites because the purpose of sharing the information with the third party does not amount to the level of voluntary disclosure that is described under the third-party doctrine. Further, the information that is revealed through the genetic data uploaded is through the volition of one person with or without the consent of every member within the family tree.
Solving decade long cold cases through the use of genealogy websites seems to be a justifiable method to achieve justice. However, the sensitive nature of genetic data that is uploaded requires protection depending on the context it is disclosed in. This sense of justice seems to sway the ethical boundary of utilizing such personal data.
[1] The Daily: A New Way to Solve a Murder, Part 1: The Genetic Detectives, N.Y. Times (June 6, 2019) (downloaded using iTunes).
[2] Id.
[3] The Daily: A New Way to Solve a Murder, Part 2: The Future of Genetic Privacy, N.Y. Times (June 7, 2019) (downloaded using iTunes).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] The Daily: A New Way to Solve a Murder, Part 2: The Future of Genetic Privacy, N.Y. Times (June 7, 2019) (downloaded using iTunes) (Parabon NanoLabs developed a software that could utilize crime scene DNA to produce a projection of what the suspect may look like.).
[10] Id.
[11] The Daily: A New Way to Solve a Murder, Part 1: The Genetic Detectives, N.Y. Times (June 6, 2019) (downloaded using iTunes).
[12] Id.
[13] The Daily: A New Way to Solve a Murder, Part 2: The Future of Genetic Privacy, N.Y. Times (June 7, 2019) (downloaded using iTunes).
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] The Daily: A New Way to Solve a Murder, Part 2: The Future of Genetic Privacy, N.Y. Times (June 7, 2019) (downloaded using iTunes).
[20] Id.
[21] Id.
[22] Id.
[23] Heather Murphy, Genealogy Sites Have Helped Identify Suspects. Now They’ve Helped Convict One, N.Y. Times (July 1, 2019), https://www.nytimes.com/2019/07/01/us/dna-genetic-genealogy-trial.html.
[24] The Daily: A New Way to Solve a Murder, Part 2: The Future of Genetic Privacy, N.Y. Times (June 7, 2019) (downloaded using iTunes).
[25] Heather Murphy, Genealogy Sites Have Helped Identify Suspects. Now They’ve Helped Convict One, N.Y. Times (July 1, 2019), https://www.nytimes.com/2019/07/01/us/dna-genetic-genealogy-trial.html.
[26] Id.
[27] Id.
[28] Id.
[29] The Daily: A New Way to Solve a Murder, Part 2: The Future of Genetic Privacy, N.Y. Times (June 7, 2019) (downloaded using iTunes).
[30] U.S. Const. amend. IV
[31] 389 U.S. 347 (1967).
[32] Id. at 351.
[33] Id.
[34] Id.
[35] Id. at 361 (Harlan, J., concurring).
[36] Id. (Harlan, J., concurring).
[37] 442 U.S. 735 (1979).
[38] Id. at 743-44.
[39] Id. at 744.
[40] See Horton v. California, 496 U.S. 128, 133 (1990) (stating that “[i]f an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy”).
[41] Megan Molteni, The Creepy Genetics Behind the Golden State Killer Case, Wired (Apr. 27, 2018, 2:00 PM), https://www.wired.com/story/detectives-cracked-the-golden-state-killer-case-using-genetics/ (stating “[23andMe and Ancestry] don’t allow law enforcement to access their customer databases unless they get a court order”).
[42] 138 S. Ct. 2206 (2018).
[43] Id. at 2220, 2223 (holding that “the deeply revealing nature of [cell-site location information], its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection”).
[44] Id. at 2217.
[45] Id. (quoting Katz v. U.S., 389 U.S. 347, 351-52(1967)) (“[W]hat [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”).
American Journal of Trial Advocacy 