Maryland Moves to Regulate Forensic Genealogy

Update: The bill was passed into law in May 2021

A bill is currently moving through the State of Maryland’s legislature that would regulate how genetic genealogy can be used in criminal investigations.  The bill, which aims to reconcile public safety with constitutional privacy protections, passed the Maryland House unanimously and is being considered by the state’s Senate.  It would be the first law in the US to regulate the use of “forensic genetic genealogical DNA analysis and search”, or FGGS (also called “investigative genetic genealogy”, IGG).

The bill is partially modeled on the Department of Justice interim guidelines released in September 2019.

Here’s my layperson summary, with some thoughts.  (Disclaimer: I am not a lawyer and have no legal training.)

The bill, “Forensic Genetic Genealogical DNA Analysis, Searching, Regulation, and Oversight” has five sections.

 

Section 1 Defines Terms

This section is pretty straightforward.  It defines terms that are used elsewhere in the bill.  It distinguishes between the STR tests that make up the law-enforcement CODIS database and the SNP tests used for genealogy and for FGG.  This is important because SNP tests contain huge amounts of personal biomedical information, whereas the STR markers in the CODIS database were chosen specifically to protect genetic privacy.

FGGS is defined to include the laboratory analysis of a biological sample, the search for matches in a genealogical database, and the genealogical work done to identify the suspect.

 

Section 2 Governs the Use of FGSS to Solve Crimes

Under this bill, FGGS can only be performed with a judge’s approval.  This provision aligns FGGS better with the Fourth Amendment right of Americans “to be secure in their persons … against unreasonable searches”.  After all, law enforcement is just trying to identify perpetrators, but they’re using technology that’s designed to reveal biomedical information.  Judicial oversight is key.  The bill goes further to explicitly forbid the use of the data to determine genetic predispositions for disease, medical conditions, or psychological traits.

The bill limits FGGS to actual or attempted murder, rape, felony sexual offense, or crimes posing a “substantial and ongoing threat to public safety or national security.”  The latter seems to  involve a lot of leeway, making judicial oversight all the more important.  Under this clause, some FGG investigations—a burglary in Texas, an assault in Utah—would not be permissible in Maryland.

Furthermore, before FGGS can be undertaken, investigators must have exhausted reasonable leads, including using the CODIS database on less-invasive STR markers.  The DNA sample itself must also be reasonably believed to be from the perpetrator (or an unidentified murder victim).

Should law enforcement need to collect DNA from a third party—someone other than the perpetrator—they must get informed consent in writing from that person.  Under some circumstances, a judge can approve covert DNA collection (without consent), but only if getting consent would jeopardize the investigation.

The databases used for FGGS must give explicit notice that law enforcement may be investigating cases there, and the service users must acknowledge and consent to that use.  This provision could prove to be a major hurdle, because neither of the two main databases used for FGGS currently get acknowledgment and positive consent.

FamilyTreeDNA, which has been working covertly with law enforcement since at least 2017, opts their customers in to FGGS by default. Most of their customers probably have no idea they’re being matched to criminal cases and have not given consent. This is the default setting there:

Similarly, when a new user uploads their DNA data to GEDmatch, the “opt-in” status is pre-selected, and it doesn’t explain what the user is opting into. This is not acknowledgment and consent.

Genealogists who upload to sites that prohibit forensic investigations, as is widely rumored, would jeopardize their cases and their licenses.

How this bill will affect Doe cases (unidentified bodies) is an open question.  The most recent Terms of Service at GEDmatch do not consider Does to be law-enforcement cases, so someone who has opted-out may still be exposed to murder investigations.  The Maryland bill specifically covers unidentified human remains, so presumably GEDmatch could not be used for these cases under the existing Terms of Service.

The bill also requires that all laboratories and genealogists performing FGGS work for Maryland be licensed by 2023 and 2025, respectively. This will help ensure that the public knows who is doing this work and that they are qualified.  Right now, the vast majority of forensic genetic genealogists are working anonymously.

There are a number of provisions to protect the long-term privacy of the suspect and any third-parties whose DNA is used in the investigation.  Once the case is over, the contractors must turn over all of their findings (including genealogy research), remove the DNA kits from the databases, and destroy their records on the case as well as the DNA samples.  Third-party DNA profiles must also be destroyed.  There are penalties for not complying and for disclosing genetic genealogy information inappropriately.

One odd provision is that a prosecutor may petition to suppress STR data.  How does this serve justice?

Section 3 Governs the Use of FGSS to Show Innocence

Someone who has been charged with or convicted of a violent crime can request an FGGS investigation to aid in their defense.  Once the request is approved, the procedures and restrictions are generally as described above.

 

Section 4 Covers Licensing and Training

Section 4 establishes licensing requirements for laboratories and genealogists conducting FGGS.  Because no such licensing programs exist in the US to date, the bill allows until 1 October 2022 to establish the laboratory licensing program and until 1 October 2024 to establish the genetic genealogy licensing program. Once the programs are established, contractors have one year to apply.  Until then, anyone is allowed to do this work.

Individuals seeking informed consent from third parties must be trained by a genetic counselor.

The licensing and training provisions are the right thing to do, and the extended timeline will ensure that labs and genealogists are not unreasonably impacted.

 

Section 5 Requires Public Reporting

Finally, the bill establishes public reporting requirements on the use of FGGS in the state.  The public will have access to an annual report specifying:

  • how many FGGS requests were made and by whom;
  • how many FGGS requests were approved;
  • the number of suspects identified;
  • the number of covert DNA collections;
  • an evaluation of leads pursued before FGGS was used;
  • the costs involved;
  • the race and age of the suspects identified;
  • the race and age of the third parties tested;
  • the number of FGGS requests made by defense teams;
  • and the outcome of each search, including arrests and convictions.

Each year, the report will be reviewed by a panel of experts, who will make policy recommendations.  These experts will include “judges, prosecutors, defense attorneys, public defenders, law enforcement officials, crime laboratory diirectors, bioethicists, racial justice experts, criminal justice researchers, civil and privacy rights organizations, and organizations representing families impacted by the criminal justice system.”  Having a diverse mix of stakeholders on the panel will go a long way to making sure FGGS is used appropriately and without bias.

 

Summary

Overall, this bill does an excellent job of balancing society’s need for justice with reasonable restrictions that better align FGGS with the Constitution.  It should serve as a role model for the rest of the nation.

 

Update

The bill was signed into law in May 2021.  See this article in The New York Times for more information.

12 thoughts on “Maryland Moves to Regulate Forensic Genealogy”

  1. Roberta, I don’t understand: “Genealogists who upload to sites that prohibit forensic investigations, as is widely rumored, would jeopardize their cases and their licenses.” I think I understand you to be saying that it is widely rumored that genealogist who upload to sites that prohibit forensic investigations would jeopardize their cases and licences. Are you talking about forensic genetic genealogists or everyday, run of the mill family history genetic genealogists? What sites? Many of our go-to sites prohibit forensic use except under court order. Why would genealogists jeopardize their genealogy cases and licenses unless you’re talking about forensic genetic genealogists?

    1. Thanks for letting me know that wasn’t clear. I edited it to read “Forensic genetic genealogists who upload …” The restrictions in this bill only apply to them.

  2. I believe the geological research aspect should remain in tact, as researcher/genealogist who currently completed my on Genetic testing to go along with my overall Ancestral research, The genetics as well as genealogical research completed should be kept and not destroyed. I say this for certain reasons. One is as a person has passed you can not obtain their DNA unless you pay big bucks to do this and all the channels to go through. For Future budding researchers in the filed of Ancestral research as well as DNA research many can not afford to pay for such testing on person’s already passed away. these forms of research assists those who were adopted or after they were adopted and located the bio parent, they have questions for Physical aspects of their genetics. All Data bases such as this should be treated and combined into a National Database, which in turn will not just assist in regular Ancestry, but DNA and also Genetics. Many of us who have already taken our DNA further as I have into Genetics aspect, this would also place us close to people they we are selves may not have known existed. For those who were adopted the Genetics may hold a great deal of information for health reasons and help them to make changes early on in their own life.

    1. The testing being done for forensic genetic genealogy is, for the most part, not done with consent. There are serious Fourth Amendment concerns that should prevent the government from keeping that data permanently.

  3. I received you comment back. The 4th amendment of the Bill of Rights in essence does not cover this aspect. When it comes to in this case of Forensics’ for DNA purposes/Genetic purposes, Ancestry research to uncover the person’s identity as in a Jane or John Doe case, the “Effect” of the 4th amendment does not state anything remotely to do with this. Every day researchers such as myself of 25 years, would highly disagree with this. For anyone who’s DNA is uploaded onto a site such as Gedmatch, all person’s on that site can OPT out for the Police aspect. Which in the case of a John or Jane Doe may or may not hit if people do this for their own DNA or others they manage as I do 8 separate kits on their site as well as the DNA on Ancestry as well. I can for see this being challenged in Court already as the Genetic field is growing larger each day via various Firms. In order for our Society s a whole, the Original Bill of Rights and the Constitution needs to have new Amended aspects to cover the growing Technology in these fields. By the way I do have a WordPress page, but it is not fully set up !

    1. You’re essentially arguing that Americans have no right to genetic privacy, that the cops can sequence anyone’s DNA whenever they want, with no oversight. I disagree. We have a constitutional right to be secure in our persons, and our DNA is the essence of our personhood. Analyzing the entire genome and building an entire family tree just to identify one person is the very definition of unreasonable. That’s why judicial oversight is key.

      Also, you are apparently unaware that you can no longer opt out of Doe searches at GEDmatch except by removing your kit from matching entirely. The latest Terms of Service redefined what “law enforcement” means, so now the Doe cases (most of which are murder victims, so definitely law-enforcement related) can see everyone in the database, regardless of their privacy settings. The lack of transparency is why I deleted all of my kits from GEDmatch and FTDNA two years ago and why I cannot, in good conscience, recommend them.

  4. Thank you Maryland! This is fantastic news.
    Hopefully all other states will quickly do the same. I’m having difficulty trusting any dna testing and/or collection sites, and am considering pulling all my genealogy work offline. I haven’t left Ancestry yet because I believe they are still doing the right thing.

  5. Hi,
    What is the connection between YDNA and autosomal. In other words, if the autosomal
    % of a relative is 10%, what would be the likely YDNA: 12 of 12; 25 of 25; 37 of 37; 67 of 67.
    Seems to me there would be a “connection” between the two. Maybe not 25 of 25, as an example. Maybe 20 of 25 ??

    1. The “depth perception” of yDNA–that is, its ability to tell how recent a genealogical connection is–is very poor. That means it’s very difficult to correlate yDNA to atDNA in that sense. The two can be powerful when used together, though, because atDNA can give you a sense of “depth” (generations to MRCA) while yDNA indicates “direction” (direct paternal lines).

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