The April 24 2018 arrest of Joseph James DeAngelo as the alleged Golden State Killer, suspected of more than a dozen murders and fifty rapes, has raised serious societal questions related to personal privacy. The break in the case came when investigators compared DNA recovered from victims and crime scenes to other DNA profiles searchable in a free genealogical database called GEDmatch. This presents a different situation from the analysis of DNA of individuals arrested or convicted of certain crimes, which has been collected in the National DNA Index System (NDIS) for forensic purposes since 1989. The search of a non-forensic database for law enforcement purposes has caught public attention, with many wondering how common such searches are, whether they are legal, and what consumers can do to protect themselves and their families from prying police eyes. Investigators are already rushing to make similar searches of GEDmatch in other cases, making ethical and legal inquiry into such use urgent.In the United States, every state, as well as the federal government, has enacted laws enumerating which convicted or arrested persons are subject to compulsory DNA sampling and inclusion in NDIS's database. The NDIS contains more than 12 million profiles, and it is regularly used to match DNA from crime scenes to identify potential suspects. It is only helpful, however, if the suspect-or a family member of the suspect-has been arrested or committed a crime and their DNA has been collected and stored.The case of the Golden State Killer is not the first instance of investigators turning to nonforensic DNA databases to generate leads. This was not even the first time investigators used genealogical DNA matches to develop and pursue a suspect in the Golden State Killer case itself. A year before investigators zeroed in on DeAngelo, they subpoenaed another genetic testing company for the name and payment information of one of its users and obtained a warrant for the man's DNA. He was not a match. Similarly, in 2014, Michael Usry found himself the target of a police investigation stemming from a partial genetic match between "This manuscript has been accepted for publication in Science. This version has not undergone final editing. Please refer to the complete version of record at https://urldefense.proofpoint.com/v2/url? u=http3A__www.sciencemag.org_&d=DwICaQ&c=ZQsKZ8oxEw0p81sqgiaRA&r=Y9KegZX8_vu5CrLdVhAzFg&m=rVh5cQa4U8 b6jjvtcZ3c4t7RE5_qmda3Nl3CySoc9Gc&s=JFNWnGT7A1yf0kHv5txDd55LqSFP817vB8XEHHIrBb0&e=. The manuscript may not be reproduced or used in any manner that does not fall within the fair use provisions of the Copyright Act without the prior, written permission of AAAS.
Epidemiological surveillance programs such as digital contact tracing have been touted as a silver bullet that will free the American public from the strictures of social distancing, enabling a return to school, work, and socializing. This Article assesses whether and under what circumstances the United States ought to embrace such programs. Part I analyzes the constitutionality of programs like digital contact tracing, arguing that the Fourth Amendment’s protection against unreasonable searches and seizures may well regulate the use of location data for epidemiological purposes, but that the legislative and executive branches have significant latitude to develop these programs within the broad constraints of the ``special needs'' doctrine elaborated by the courts in parallel circumstances. Part II cautions that the absence of a firm warrant requirement for digital contact tracing should not serve as a green light for unregulated and mass digital location tracking. In light of substantial risks to privacy, policy makers must ask hard questions about efficacy and the comparative advantages of location tracking versus more traditional means of controlling epidemic contagions, take seriously threats to privacy, tailor programs parsimoniously, establish clear metrics for determining success, and set clear plans for decommissioning surveillance programs.
Maryland ’s new law provides a model for others
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