Page 176 - Privacy in a Cyber Age Policy and Practice

164 PRIVACY IN A CYBER AGE

between the DNA of the suspect and Easton’s DNA that was collected three
years prior to the burglary for a minor domestic incident that did not lead
to him being charged with a crime. Although Easton suffered from Parkin-
son’s disease and could not drive, the police were convinced of his guilt on
the basis of the partial DNA match. Ultimately, the charges against Easton
were dropped in light of his corroborated and strong alibi combined with
a more rigorous DNA test calling Easton’s involvement in the burglary into
question. Nonetheless, Easton was exposed to considerable stress during
the investigation on the basis of the partial match between his DNA and
the perpetrator’s. Partial match searches could expose hundreds of people
who have not committed the crime to the stresses of being a suspect,
which can help to explain why Erin Murphy, Professor of Law specializing
in criminal law and forensic evidence at New York University calls such
searches “suspicionless, generalized, and arbitrary.” 46
In response to this latter concern, one might note that while the stress
of being the subject of a police investigation is considerable and should
not be discounted, it is unnecessary to abandon the use of partial match
searches to guard against the danger of over-inclusive matches. According
to Sonia Suter, the utility of familial searches could be maximized by
studying the effectiveness of DNA profiling in actually convicting crimi-
nals (particularly whether familial searches add value to and/or impose
hidden costs on police investigations); improving and evening out the
mixed performance of crime labs, and restricting familial searches to
serious crimes and those “most susceptible to resolution through DNA
analysis. At the same time, costs can be minimized through a reason-
able minimum threshold for “partial” matches, legislative approval and
police adoption of technologies and analytical techniques that reduce the
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likelihood of false positives, nondisclosure by police of family secrets
(such as infertility, adoption, or infidelity) revealed by the analysis, and
prohibition of surreptitious collection of “abandoned” DNA from inno-
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cent family members (as opposed to suspects.) Liberal communitari-
anism could support such measures, in addition to the establishment of
trained oversight and accountability boards to address ethical violations,
abuses of privacy, and conflicts that arise between individual rights and
the common good. This has already been done in California, where the
Familial Search Committee (FSC)—a panel comprised of scientists, offi-
cials, and lawyers—“review[s] the progress of cases [involving familial
searches] and provide[s] legal and ethical checkpoints at major steps in
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the investigation.” In the famous case of the “Grim Sleeper” serial killer,
the FSC was tasked with reviewing all of the information that suggested
a database offender was closely related to the donor of forensic DNA
samples, and it was only with their authorization that the name of the