Proposed Bill to Prohibit the use of Forensic Genealogy to identify criminal offenders in the State of Maryland (US).

      On 24 January 2019, Seth Augenstein, Senior Science writer for ‘Forensic Magazine’, reported that the State of Maryland in the United States of America, had introduced a Bill into State Legislature for debate that would effectively see the use of Forensic Genealogy prohibited.[1] The premise of the introduction of the Bill, and the perceived nature of the debate that would ensue, would centre around whether the use of genealogical (DNA) databases for the identification of suspects wanted for law enforcement purposes, would violate the civil rights of citizens that are accessing the genealogical databases for genealogical purposes specifically, and the rights of citizens generally. In particular, reference is made to the potential violation of the Fourth Amendment of the United States Constitution, and Article 26 of Maryland’s own Declaration of Rights.[2]

     It is my view that a debate such as this needs to take place. It is also my view that this Bill does not seek to completely outlaw the use of genealogical (DNA) databases for law enforcement purposes within the State of Maryland, but rather, sets the scene for an active debate about how and when the databases can and should be accessed for law enforcement purposes, without infringing on the civil rights of the State or Country’s citizens through the violation of legislative protections. In a previous post to this website, I alluded to the fact that in usual circumstances a law enforcement officer would be required to obtain a warrant for the production of documents/information that may assist in creating a pool of suspects during the course of an investigation of a crime.[3] The issue that presents itself with genealogical (DNA) databases as a law enforcement tool to create a pool of suspects, is that it is such a new tool that law enforcement officers have identified as being able to assist with criminal investigation, that there are no protocols, policies, procedures, or even legislation, in place for the use of the database that balances the safety of the community (apprehension of violent criminals) -v- the civil rights of that community’s citizens. In other words, no Warrants are required to be sworn, at this stage, to allow law enforcement officers to access the information contained within genealogical (DNA) databases.    

     The Fourth Amendment to the Constitution of the United States references directly the issue of unreasonable searches and subsequent seizures, and further, the issuance of warrants that have no probable cause, and as such is directly relevant to the debate concerning genealogical (DNA) databases being searched for law enforcement purposes.[4] Article 26 of the Constitution of Maryland follows on from the Fourth Amendment, but specifically deals with the legality of issued Warrants for search and seizure.[5] The Fourth Amendment is, at its base level, a protection of the people from unreasonable searches and seizures by the government, which includes searches and seizures made by law enforcement officers, and may well include searches made of genealogical (DNA) databases by those officers in the search for suspects of a crime. The question of what constitutes an unreasonable search is a balancing act between the intrusion of a citizens’ civil rights -v- the legitimate interests of government, which would include the apprehension of violent criminals (public safety).[6]  Civil rights protections of citizens exist in legislation worldwide, so the impact of this debate in Maryland, I believe, is a debate that needs to occur in State and National legislatures across the globe.

     The State of Maryland should be commended in seeking to have this debate within the State Legislature, rather than in the Courts where cases have the potential of being dismissed on the grounds that the searches carried out by law enforcement officers of genealogical (DNA) databases violate the Fourth Amendment or similar Articles that protect the civil rights of citizens. Once a case has been dismissed at Court, it can be extremely difficult to retry a case without the uncovering of new evidence, and once a case has been dismissed at Court, and that dismissal relates to investigative procedure, there is then the potential for all cases that followed that same investigative procedure to be dismissed. The debate concerning civil rights protections is necessarily a debate that needs to occur at a legislative level so that once a case is before the Court the matters being dealt with directly concern the criminal act and the investigative process, rather than technicalities at law, and not within the Courts where the determination of that debate has the potential to allow perpetrators of violent crime to escape conviction. The outcome of the debate within Maryland has the potential, not only to influence legislative approaches to searching Genealogical (DNA) databases across other States of the United States, but may set the example of relevant debate about law enforcement access to Genealogical (DNA) databases Worldwide.

Endnotes:

[1] Seth Augenstein, ‘Maryland Bill Proposes Curbing Forensic Genealogy’, Forensic Magazine, www.forensicmag.com/news/2019/01/maryland-bill-proposes-curbing-forensic-genealogy, accessed 25 January 2019.

[2] Ibid.

[3] Brooke A. Smith, ‘Law Enforcement use of Genealogical (DNA) Databases (Part 2)’, Brooke A. Smith – Forensic Genealogist, www.allthingspolicing.com/law-enforcement-use-of-genealogical-dna-databases-part-2/, accessed 30 January 2019,

[4] Bryan A. Garner (ed), Black’s Law Dictionary, 10^th edn, United States of America, Thomson Reuters, 2014, p. 772.

[5] ‘Constitution of Maryland’, Maryland Manual On-line: A Guide to Maryland and its Government, https://msa.maryland.gov/msa/mdmanual/43const/html/00dec.html, accessed 30 January 2019.

[6] Administrative Office of the U.S. Courts, ‘What Does the Fourth Amendment Mean?’, Unites States Courts, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-recources/what-does-0, accessed 30 January 2019.