Genetic Genealogy: Where is Consent? - E. Burgess
In October of 2020, Toronto police used a technique to identify 9-year-old Christine Jessop’s killer after thirty-six years. 1 The technique used is called genetic genealogy, which combines direct-to-consumer DNA tests like those purchased through 23andMe or Ancerstry.com, with age-old tracing of family’s trees with public records. This powerful new technique can also generate leads on unknown suspects in crimes. This technique can be used to discover the identity of an unknown individual by using DNA in these public databases to identify relatives, and then build family trees to deduce who the unknown individual could be. 2 Although this technique can be useful in solving cold cases like Christine Jessop, as well as the notorious case of the Golden State Killer, this technique comes with it, a very real privacy concern, especially around the well-established rules regarding consent to obtaining DNA samples from suspects, as well as third party consent.
R v Borden is a case that describes the rules around obtaining consent from individuals who are suspects in a crime. In Borden, there was an individual who was suspected of committing a crime, and police requested either a DNA sample, blood sample or hair sample from the suspect. The officers had no statutory authority to obtain the samples and so required consent from the individual. The court determined that in order for officers to obtain samples validly, the individual must be informed, which includes the suspect having sufficient information to make their choice between consenting or not, meaningful. As well, the suspect must be informed of all the known uses that police had in mind, at the time consent was requested. The court points out that at times, when someone consents to the seizing of their bodily samples for use in an investigation, this use can be limited in scope depending on the information known to them, and whether the consequences of consenting were told to the individual. In Borden, the individual was not told of all known uses of his samples, and so the court limited the scope of the samples to one investigation. 3
Informed consent has been reiterated in other cases including R v Arp, 4 and has stood for what is required of officers to obtain bodily samples when they do not have the statutory authority to do so. The new technique of genetic genealogy can be seen as a threat to the idea of consent in investigations, just as much as it is a great tool to solving crimes. When talking to close contacts about this new technique, many have cited that these databases have terms and conditions that state their DNA may be used in police investigations, and so that is enough to warn them of the possible uses, which is enough information to get consent. I do not believe that the terms and conditions are enough to consider consent in these situations valid, and therefore the use of the samples in further investigations, suspect.
Although these databases like Ancestry.com have terms and conditions, or some even have an “opt-in” option, there are still concerns around whether people actually read those terms, or more importantly understand them. Using the principles of Borden, informed consent includes having sufficient information to make your choice meaningful, as well as being informed of the possible consequences of consenting. 5 Experts have cited that many people using these websites do not realize what they are consenting to when they sign up, and the consequences of doing so are huge, not just for the one individual, but for others unknown to them. 6 With these issues in mind, I think an argument can be made that if someone giving up their DNA on a public database is done with questionable, or without full, informed consent, how can it be reasonable to allow this lack of consent to be used to expose others connected to them? I am of the opinion it is unreasonable, and more needs to be done within the law to safeguard against these concerns.
I believe another privacy concern for the use of genetic genealogy for investigative purposes is in regards to third party consent. The case of R v Reeves, and ones alike, have stated that a third party cannot waive your rights to privacy. 7 The use of one’s body without his consent, to obtain information about him, invades an area essential to the maintenance of one’s human dignity. 8 This is exactly what genetic genealogy does. When an individual goes on one of these public databases in order to find a long-lost cousin, they are then also consenting for all those people who came before them, after them, or those unknown to them, to have their DNA core, be used in police investigations. A person unknown to you, generations apart, can expose the most intimate details of you, and allow police to link you to a crime, without your knowledge. In our legal system, we do not allow a third party to consent to your computer being taken away from you for police use, or allow a third party to take your bodily samples away without your knowledge. Why then, should we allow a third party to consent to your DNA being used in a police investigation?
In my opinion, this new technique could be a serious threat to privacy rights of all individuals, not just suspects in a crime, and terms and conditions laying out the possible consequences, is not enough. Although this technique may have its use, a middle ground needs to be drawn between protecting privacy rights, while also helping families in cold cases get closure. This is not an issue I believe should wait until it gets to the courts, a proactive approach must be taken to set out limits of this technique before it is too late.
1 Kirsten Fenn “Genetic genealogy techniques used in Christine Jessop cold case comes with privacy concerns, warns expert”, newspaper (2020) electronic source.
2 Parabon NanoLabs “Snapshot Genetic Genealogy”, (2020), online: Parabon NanoLabs .
3 R v Borden, (1994) 3 SCR 14.
4 R v Arp, (1998) 3 SCR 339.
5 Borden, note 3.
6 Supra note 1.
7 R v Reeves, 2018 SCC 56.
8 R v Dyment, (1988) 2 SCR 417.