DNA Databases & Human Rights, Research Paper Example

Introduction

DNA sampling is now a widely accepted forensics practice in order to track people who have committed a crime and forms an integral part of police forensics investigations.  This information is retained on police databases as computerised DNA profiles.  This has given rise to security and ethical concerns over the privacy and confidentiality of such information. The alternate argument is that the retention of DNA records are a necessary evil and that these need to be maintained regardless of the broader human rights issues.  Is there really a case for individual privacy rights for retention of DNA databases, as retained by law enforcement officers, and does this really infringe human rights?

DNA databases

The concept of DNA database requirements goes beyond that of the police authorities. It was used in insurance claims to screen potential insurance applicants but President G.W. Bush passed legislation to prevent such discrimination from taking place “The President has signed into law the Genetic Information Non-discrimination Act (GINA) that will protect Americans against discrimination based on their genetic information when it comes to health insurance and employment” (National Genome Research Institute, 2012).

The use of Forensic DNA databases have now been an established practice in many countries throughout the world. Here data has been collected, retained and stored for a wide variety of application uses.  This trend is likely to continue as the cost of DNA sequencing becomes more affordable. In many countries the records are kept not only of convicted criminals but also of potential suspects who are considered as high risk of committing future offences.  The concept permits data sharing between countries and assists the apprehension of suspects.

Within the context of the law it is the 4^th Amendment that provides for people to feel secure in their person, home, personal effects and documentation concerning unreasonable searches and seizures. This means that DNA sampling falls within the meaning of the 4^th Amendment. As such any form of sampling has to comply with the constitutional standards.  In this context qualifying Federal offences related to that of murder, voluntary manslaughter and sexual abuse.  The Justice for All Act of 2004 permits the collection of DNA samples for those consisted of a Federal felony. The DNA sample record must be removed from the system if the accused is not convicted. Professor Sir Alec Jeffries of the University of Leicester in the UK highlighted the moral and ethical concerns of DNA sampling “Professor Jeffrey’s expressed concerns about the retention of innocent individuals on the National DNA Database and the use of kinship analysis in forensic investigations.” (Jeffreys, 2012)

DNA is essentially a chemical that is inside the cells of a person’s body.  This is found in 22 structures that are termed as chromosomes. These are either X chromosomes (male) or Y chromosomes (female).  They form the shape of a double helix and the shapes identify a unique individual code or the DNA sequence.  This is useful in tracing individuals because each person has a unique DNA code; other than identical twins.  Fig 1 illustrates a DNA structure

Owing to the structure of the DNA it is possible to identify the biological structure of the Father and Mother and so the parents of the person can be identified from this procedure.  DNA can be useful in helping to solve crimes where samples can be extracted from a crime scene. It does not always absolutely solve a crime but can prove useful in narrowing down the list of suspects. It can equally be used as potential disqualifier in terms of ruling out someone involved in a crime or at a crime scene.

Figure 1 Example DNA Double Helix structure

The use of DNA at a murder scene is often matched to the victim. An example being that of DNA from a murder victim via a blood sample and that same sample being found on a suspect’s shoes or clothes, may ultimately lead towards a conviction.  Forensic scientists have been particularly successful in this regard taking samples from cigarette butts, hair samples and semen samples where a person had been raped.

The limitations of DNA is that it does not necessarily offer conclusive proof in an investigation. For example a DNA sample extracted from a homicide scene may only indicate that you were present at the scene at some point. It does not prove you to be the murderer. However, if you were found to be in possession of the murder weapon you then have two associations i.e. DNA evidence of being at the crime scene and in possession of the murder weapon. Similar to other forensics like finger printing and biological tests it helps in narrowing down the catalogue of evidence or proof.

The Advantages of DNA testing are that (i) This is a scientific method of analysis and coding that offers a unique code (ii) In addition to helping catch guilty parties it can be used to exonerate the innocent (iii) It can help in the prevention of false arrests by adding an additional forensic test to the equation.  Essentially in criminal investigations the concept of DNA sampling is viewed as a proven scientific method to support the gathering of evidence for serious crimes. It is important to underscore that not only can it be used for convictions but it can assist in screening out potentially innocent people who otherwise enter a guilty frame; as such preventing any miscarriages of justice.

Disadvantages are (i) The evidence is not foolproof and the profiles need to be safeguarded to avoid tampering with and resulting miscarriages of justice. (ii) the use of such testing may be objected to on religious, racial or political grounds (iii) Insensitivity of retaining DNA records on children or the mentally ill.  The real point here is that DNA sampling is not completely foolproof and as such should not be considered as “stand alone” evidence. There also needs to be a certain professional discretion with the police authorities in terms of how this is used.

Human rights issues

There have been concerns about the use of DNA records being a form of biological tagging and use for bio surveillance purposes.  This being used to track suspects and is considered a potential violation of human rights.  The objection here is that the police are using this to track who they consider are suspects but at this point have not committed any crimes. As such it is a pre-emptive strike and in certain countries may be used to restrict freedom of speech and movements of political dissidents.  Examples of this approach in the past have shown that paper based databases have been used by oppressive regimes like the Nazis, Stasi and the Communists.  As such the user of these materials moves the balance of power from individual rights to that of the State.  (BBC News, 2008)

An added concern is the security of this information particularly where this is retained on computer databases. These have proven to be vulnerable in the past and capable of penetration from hackers.  This could be used by Terrorist organizations to locate potential victims and their families or by criminal organizations that wish to find people placed under witness protection programmes. Information Technology has become the life-blood of virtually every organization. Most large business operations contain Data Centre’s of expensive computer and communication systems (hardware) and important client information and programs (software). Together they provide the central back-bone of the organization and as such any threat to these systems can be extremely disruptive and costly to the business.  (S.L.fleeger, 2006)

The concept of maintaining DNA sample database for those who have been arrested but not yet convicted tends to blur the distinction between guilty criminals and the innocent.  As such it is considered this contributes towards tainting the record of innocent people who have neither been convicted nor proven to have committed a criminal offense.  It has also been argued that the retention of DNA databases shifts the burden of proof and as such places a person in an awkward position at some future date where they might have to try and prove their innocence if a DNA sample turns up at a crime scene.  (GeneWatch UK, 2011)

Legal Implications | The data retention law in the EU has an impact on both the US and EU in that ISP providers needs to retain all of the data that is transmitted by e-mail traffic.  It is considered that this contains important information for forensic investigations and the important point of establishing guilt or innocence in a criminal investigation. There are specific directives in place that describe how such data may be accessed.  This storage imposition on the ISP provider creates a huge storage issue requiring thousands of terabytes of storage. (Warner, J. 2005).

The EU data retention law provides the US the right legal authorities in order to gain access to such data and these being defined within the context of international agreements.  There have been complications in gaining access to data and the EU is investigating ways to eliminate these. The law has been criticised saying that it infringes individual privacy rights. (Baker, J. 2011). A study that has been carried out indicated that it will cost ISP providers in excess of half a million dollars per annum in additional storage and operating costs to retain this data.

Distributed Network Attacks (DNA) pose a specific vulnerability. A distributed network attack (DNA) may be defined as that of a decryption attack across a large computer network system. Such attacks to gain illegal penetration of a computer network and these cyber-attacks may be to obtain important information from which the person carrying out the theft hopes to make a profit. It may be conducted as a revenge motive or even pure sabotage.  Whatever the motive it is a criminal offence and organizations need to try and protect themselves from such occurrences.

In file recovery, vulnerability remediation and tracking are important features of these tools. They can alert administrators to potential threats and areas of vulnerability in the network system. With Distributed Network Attacks you are not restricted to the process power of one machine but can use the power of all the machines contained within the network. This can be used to decrypt passwords. The Distributed Network Attacks specific server being installed in the heart of the network where the security manager can co-ordinate operations over the Distributed Network Attacks attack.  He is then able to target areas of the network system and distribute small portions of key searches to nodes around the network As such this can be performed as a background activity using only minimal amounts of processing time. (Access Data, 2011).

Hair as evidence in Courts – Hair samples are one of the most important forensic pieces of evidence that are located at a crime scene.  Trace evidence of hair lends itself to DNA testing one of the most reliable ways of identifying hair samples in comparative analysis. The hair is structured into three main parts:  the root, the shaft and the tip.  The length and shape of the hair may be used to determine which part of the body it was derived e.g. eyebrows, scalp, beard etc.  The hair lends itself to microscopic analysis where it may be determined if the hair has been subject to any chemical treatment like dyes.  This may also result in the dye being identified. Scale patterns in the cuticle of the hair may be used to identify species e.g. animal or human origin. The comparison of the scale patterns and the Medullary Index. Nail polish is often used in the determination of obtaining scale samples for analysis. The most compelling evidence however is from DNA testing where both sex and genetic composition may be determined.

When looking at the shape of the hair, particularly in determination of whether animal or human, most human hair has no medulla and people of Mongol extraction have a continuous medulla. Hair is also important as evidence because of its toxicology. The hair often remains after other sources of evidence have decayed, decomposed or do not lend themselves to forensic analysis.  During the capture of Napoleon Bonaparte he claimed that he was being poisoned by his English captors.  His valet kept a lock of his hair and this later was subject to neutron activation analysis and it was discovered that the hair contained significant traces of arsenic indicating that he had indeed died of poisoning over a long period of time.  (David R. Foran, 1997)

Hair lends itself to a great deal of different forensic tests with DNA testing being the most potent of these tests. Nevertheless, it is unlikely that such evidence will stand-alone and would need to be supported with other forensic analysis results.  An example being murders resulting from domestic disputes where on its own it has little relevance.

Retention of DNA Records –   It is the impact on privacy and human rights that has made this a controversial subject. It is the actual retention of biological records and samples that have given rise to the controversy. In Germany the legal apparatus has seen that DNA samples have to be destroyed once the computer record has been generated.  The objective being to prevent further diagnostics being carried out on the sample for health or insurance purposes.  (Andrew Ashworth, 2012)

The other question that has surfaced is the amount of time DNA records should be kept on computer databases. Many countries keep the profiles of those serious criminals i.e. homicide and rape cases, on file indefinitely.  In the UK the original concept of DNA records had to be deleted if a person was not convicted or charged. In 2001 the law changed and the Police were given permission to retain the information indefinitely. However, in 2008 the UK was held to account by the European Court of Human Rights who asserted that this practice was unlawful and breached the European Convention on Human Rights.  As to date the legal situation remains unchanged in Britain. (GeneWatch UK, 2011)

Access to stored data – The issue here is one of authorization and restriction of those people who have access to this information. This being to prevent breaches of security.  In the Police setting this is usually confined to that of Forensic Scientists who become subject matter experts and can be called upon to present evidence in court.  There is also the question of when this data becomes stored on a database and shared internationally.  These are governed by Police rules and regulations for example New Scotland Yard (UK) and Interpol (Europe) have a mechanism in place for the security and sharing of DNA computer record information.  There remain legal issues that still remain fuzzy. For example whether such information can be used for research purposes and whether consents are required? Whether it is ethical or legally permissible to conduct tests on the sample to determine genetic characteristics?  The concept of extradition orders and whether DNA evidence is sufficient in order to permit such extraditions taking place. (GeneWatch UK, 2011)

Governance – The use of legislation and policies governing privacy and human rights issues can only really prevent illegal functions if the policies are scrutinized and proper oversight is maintained by independent bodies. An example being the European Court of Human Rights and other justice surveillance functions that provide a form of governance over the use of DNA sampling and retention of computer based records. (Matti Häyry, 2007)

Useful statistics

• The USA is considered to have the world’s largest database of DNA samples and this is estimated at covering over 5.6 million profiles
• Although most of the US samples are from convicted criminals a large number of records are from parolees, people on probation and people who have been arrested
• Increasing amounts of different State legislation are continuing to expand the human categories that permit DNA testing by the law enforcement authorities
• It is not fully known as to how many DNA samples have been collected by law enforcement officers using ‘back door techniques’ ; the acquisition of samples like coffee cups, cigarette butts, discarded by criminal suspects. (Mashke, K.J. 2012)

Conclusions

It was the European Parliament and Council of the EU that issued directive 95/46/EC on 24th October 1995.  This being aimed on the rights of individuals with regard to the processing of personal data and the legitimate free movement of such data.  Section IX Notification Article 18 provides the obligation in order to notify supervisory authority.  This means that any member states have a statutory duty to notify the supervisory authority, as referred to under article 28, before they are eligible to carry out operations.

Annotated bibliography

R.Hindmarsh and B.Prainsack, Genetic Suspects: Global governance of forensic DNA, University of Cambridge Press, Cambridge, 2010. (Hindmarsh, R. 2010)

This is a scientific book with an impressive range of academic contributors and subject matter experts. The book examines the global governance and use of DNA as forensic evidence and considers both legal and ethical / moral issues in the presentation of DNA evidence. As DNA forensic profiling and databasing become established as key technologies in the toolbox of the forensic sciences, their expanding use raises important issues that promise to touch everyone’s lives. In an authoritative global investigation of a diverse range of countries.

Sheldon Krimsky, Tania Simoncelli, Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties, Columbia University Press, New York, 2012 (Krimsky, S. 2012)

A new book based on academic contributions to the science of DNA sampling and the retention of DNA databanks.  This is based in context with Criminal investigations and the use of DNA sampling discussed from the lens of human rights and civil liberties. National DNA databanks were initially established to catalogue the identities of violent criminals and sex offenders. However, since the mid-1990s, forensic DNA databanks have in some cases expanded to include people merely arrested, regardless of whether they’ve been charged or convicted of a crime.

Bartha Maria Knoppers & Ruth Chadwick, Human genetic research: emerging trends in ethics, Nature Reviews Genetics 6, 75-79, 2005 (Chadwick, R. 2005)

A scientific review of the emerging trends in ethical considerations relative to genetic research and the use of DNA testing. Provides a wider perspective of the subject matter area from a practical application viewpoint through the lens of ethical considerations

An Semikhodskii, Dealing with DNA Evidence: A Legal Guide, Routledge, New York, 2007. (Semikhodskii, A. 2007).

A scientific book that deals with the legal issues and ramifications of DNA testing and the use of this as forensic evidence in the courts. Giving the reader an in-depth understanding of DNA evidence in criminal practice, this text explains in clear language how DNA evidence is obtained and how it can be successfully challenged in court to minimize its impact or even dismiss it completely.

Jeremiah Goulka, Toward a Comparison of DNA Profiling and Databases in the United States and England, 2010, London, Rand Corporation

This text looks at the science of DNA profiling and contrasts scientific approaches between that of the UK and USA. It is useful for comparative analysis and seeing how international forensic operations collaborate on an international basis.

William Goodwin, Adrian Linacre, Sibte Hadi, An Introduction to Forensic Genetics, 2011, John Wiley, London

Now illustrated in full colour throughout, this accessible textbook includes numerous references to relevant casework. With information on the full process of DNA evidence from collection at the scene of a crime to presentation in a legal context this book provides a complete overview of the field

Ajay Kumar, David Zhang, Ethics and Policy of Biometrics: Third International Conference on Ethics and Policy of Biometrics and International Data Sharing, Hong Kong, January 4-5, 2010, Hong Kong, Springer.

This volume constitutes the thoroughly refereed post-conference proceedings of the Third International Conference on Ethics and Policy of Biometrics and International Data Sharing, ICEB 2010, held in Hong Kong, during January 4-5, 2010.  It examines the ethical and legal ramifications of DNA testing in consideration of human rights.

Ian Pepper, Crime Scene Investigation: Methods and Procedures, 2010, McGraw Hill.

This book addresses the rights of individuals based upon DNA sampling from crime scenes. It considers the ethical and human rights responsibilities of the police and forensic teams and how the rule of law applies to same.

References

Access Data. (2011, 11 19). Decryption and Password Cracking Software. Retrieved from Access Data: http://accessdata.com/products/computer-forensics/decryption

Andrew Ashworth, A. M. (2012). Human Rights and Criminal Justice. New York: Sweet and Maxwell.

Baker, J. (2011, 11 21). EU data retention law blasted on privacy issues. Retrieved from Networld: http://www.networkworld.com/news/2011/041811-eu-data-retention-law-blasted.html

BBC News. (2008, 12 4). DNA Database breach of rights. Retrieved from BBC News: http://news.bbc.co.uk/2/hi/uk_news/7764069.stm

David R. Foran, S. C. (1997). DNA-Based Analysis of Hair to Identify Species and Individuals for Population Research and Monitoring. Wildlife Society Bulletin, 840-847.

GeneWatch UK. (2011). DNA Databases and human rights. London: GeneWatch UK.

Jeffreys, A. (2012, 10 25). Real concerns over the ethics of a DNA database. Retrieved from News-Medical: http://www.news-medical.net/news/2008/01/10/34184.aspx

Mashke, K. J. (2012, 10 16). DNA and Law enforcement. Retrieved from The Hastings Centre: http://www.thehastingscenter.org/Publications/BriefingBook/Detail.aspx?id=2168

Matti Häyry, R. C. (2007). The Ethics and Governance of Human Genetic Databases: . Cambridge: University of Cambridge Press.

National Genome Research Institute. (2012, 10 17). Genetic Information Nondiscrimination Act (GINA) of 2008. Retrieved from National Genome Research Institute: http://www.genome.gov/24519851

Office of the Data Protection Commissioner. (2011, 11 21). EU Directive 95/46/EC – The Data Protection Directive . Retrieved from Office of the Data Protection Commissioner: http://www.dataprotection.ie/viewdoc.asp?m=&fn=/documents/legal/6aii-2.htm#18

R.Chadwick, B. K. (2005). , Human genetic research: emerging trends in ethics. Nature Reviews Genetics Vol 6, 75-79.

R.Hindmarsh, B. P. (2010). Genetic Suspects: Global Governance of Forensic DNA. Cambridge: University of Cambridge Press.

S.Krimsky, T. S. (2012). : DNA Data Banks, Criminal Investigations, and Civil Liberties, . New York: Columbia University Press.

S.L.fleeger, C. P. (2006). Security in Computing (4th Edition). Saddle River NJ: Prentice Hall .

Semikhodskii, A. (2007). Dealing with DNA Evidence: A Legal Guide. New York: Routledge.

Warner, J. (2005). The Right to Oblivion: Data Retention from. University of Ottawa law and technology journal, 76-103.