The Double-Edged Sword of Investigative Genetic Genealogy: Convictions and Privacy

Author: Anonymous & Anonymous

In 2018, American authorities finally solved the infamous cold case of the Golden State Killer, more than 40 years after his first crime was committed. Joseph DeAngelo, a former police officer who committed at least 12 murders and 50 sexual assaults across California, was finally identified using investigative genetic genealogy (“IGG”).^[1] This investigative technique uses DNA analysis and public genetic genealogy databases to identify suspects by tracing them through their genetic relatives.^[2] IGG has since helped solve hundreds of cold cases worldwide, including cases in Canada.^[3] Despite its effectiveness, it attracts ethical debates regarding privacy issues. This blog will explore the process of IGG, how Canadian courts have addressed its use, and the balance between using this powerful investigative tool to identify accused individuals while protecting the privacy rights of Canadians.

The Process of IGG

Traditional forensic DNA testing matches crime scene samples against government-owned law enforcement databases of known offenders.^[4] Whereas IGG, also known as forensic genetic genealogy, expands on traditional DNA analysis by examining public genetic genealogy databases.^[5] The process begins when investigators obtain DNA evidence from a crime scene, such as blood on a weapon or from a sexual assault evidence kit. This sample is converted into a DNA profile compatible with genetic genealogy databases.^[6] Once uploaded to public genealogy databases like GEDMatch,^[7] the DNA profile can be compared against millions of other profiles. These types of platforms can create genetic connections up to approximately the 6th degree.^[8]

With the results of the IGG, law enforcement officers and genetic genealogists then use a method called familial searching to construct detailed family trees, working backward through generations to identify common ancestors and forward to find potential suspects. This process often involves examining birth certificates, social media, obituaries, court documents and other public records to narrow possibilities.^[9]

R v Cochrane

In 1994, in Calgary, Alberta, two men were shot to death. Calgary Police Services (“CPS”) collected blood samples from the crime scene, which were used to create a DNA profile of an unknown male. The case went cold but was reopened in 2019 by CPS. At that time, DNA was provided to Parabon NanoLabs, an American company, which then utilized the public genetic database GEDmatch for IGG analysis.^[10] CPS also engaged the services of two genealogists. The genealogists then built family trees tracing back to the children of Ignatius Cochrane and Mary Pomroy, one of which was the accused Leonard Cochrane (“Cochrane”).^[11] Eventually, CPS obtained cast-off DNA from Cochrane that matched the crime-scene DNA.^[12]

The issue in this case is whether Cochrane has a reasonable expectation of privacy in the genetic material he shares with his relatives.^[13] Section 8 of the Canadian Charter of Rights and Freedoms states that everyone has the right to be secure against unreasonable search or seizure.^[14] To claim protection under s 8, a claimant must demonstrate a reasonable expectation of privacy in the subject matter of the search, meaning the claimant subjectively expected it to be private and that this expectation was objectively reasonable.^[15] To assess this, the Court must consider:

1.     What was the subject matter of the alleged search?

2.     Did the claimant have a direct interest in the subject matter?

3.     Did the claimant have a subjective expectation of privacy in the subject matter?

4.     If so, was the claimant’s subjective expectation of privacy objectively reasonable?^[16]

Only if the answer to the fourth question is “yes” will the claimant have standing to assert their s 8 right.^[17]

First, the Court found that the CPS aimed to establish a relationship between DNA found at the crime scene and DNA uploaded to a public genetic genealogy database.^[18] The subject matter of the search was not that portion of Cochrane’s DNA that he shares with his relatives, or the DNA of other people, other than Cochrane, who have uploaded their DNA to a public genetic genealogy database.^[19] The CPS had no knowledge of the DNA sample’s source, nor did they have any direct samples from him.^[20]

Second, Cochrane does not have the right to prevent his relatives or other individuals from uploading their DNA to a public genetic genealogy database. Therefore, Cochrane does not have a direct interest in the subject matter of the search.^[21]

Third, for a person to claim protection under s 8, that person must establish that they subjectively expected the subject matter of the search would be private.^[22] The "testers"^[23] and other users of GEDmatch voluntarily uploaded samples of their DNA to a public genetic genealogy database, accepting that their information could be shared publicly or with law enforcement.^[24] As a result, the Court held that it would be unreasonable for Cochrane to have a subjective expectation of privacy that the user themselves did not have.^[25]

Fourth, the Court's finding of objective reasonableness is  required for Cochrane to be able to argue that his Charter s 8 rights have been breached.^[26] Thus, Cochrane applied the Tessling factors: where the search occurred, whether the subject matter was in public view or abandoned, third-party involvement and confidentiality, the intrusiveness of police techniques, whether IGG was itself objectively unreasonable, and whether intimate or biographical details were exposed.^[27]

The Court found that Cochrane had no direct interest in the information contained in the public genealogy database, since he did not upload his own DNA information.^[28] Second, public genetic genealogy databases, along with uploaded DNA profiles and the DNA sample from the crime scene, are publicly available.^[29] Third, information in public genetic genealogy databases is voluntarily uploaded; it’s not abandoned. Therefore, Cochrane was never in possession of that DNA and couldn’t have abandoned it.^[30]

Fourth, individuals who upload their own DNA to public genetic genealogy databases have no obligation of confidentiality regarding how they choose to share their DNA with the public.^[31] Therefore, those individuals do not owe Cochrane any duty of confidentiality concerning their DNA.^[32]The CPS forwarded the sample DNA from the crime scene to GEDmatch to determine whether it matched DNA uploaded in a public genetic genealogy database by users who were informed that law enforcement could access their DNA.^[33]Therefore, this technique was not intrusive. IGG only allowed CPS to identify potential individuals with shared DNA markers in the DNA sample.^[34] Additional steps were taken to identify a suspect, as IGG itself did not identify one particular individual but rather helped build a family tree.^[35] Lastly, the CPS focused on the relatedness between the DNA sample and the DNA on the public genetic genealogy databases to generate leads; they were not looking to obtain intimate or biological information.^[36]

As a result, the Court found that Cochrane had no reasonable expectation of privacy in the DNA of his relatives or individuals who uploaded their DNA to public genetic genealogy databases. It also found that Cochrane lacked standing to claim a breach of someone else’s Charter s 8 rights.^[37]

Privacy Issues and the Canadian Legal Landscape

The Cochrane decision exposes the multilayered nature of genetic privacy and leaves us  wondering whether traditional constitutional protections against unreasonable search and seizure are equipped to handle issues that address the collective nature of DNA.^[38]  By focusing on the relationship between DNA samples and public genetic genealogy databases, Cochrane overlooked reality: our genetic information is inherently shared, making it a collective issue, not an individual one.^[39] The court's reasoning that individuals lack a "direct interest" when third parties upload DNA underestimates the nature of genetic data.^[40] When your cousin uploads their DNA to a public genetic genealogy database, they are not just sharing their own genetic information; they are inadvertently exposing significant portions of your genetic makeup as well. This creates a troubling scenario where law enforcement may place you under surveillance while searching for your relatives, despite knowing you are innocent.^[41]

Currently, the DNA Identification Act addresses the use of government-owned law enforcement databases, such as the National DNA Data Bank, but the use of public genetic genealogy databases remains nationally unregulated.^[42] Law enforcement agencies across Canada have adopted inconsistent guidelines on when and how IGG may be used, and some public databases have implemented their own rules for law enforcement access.^[43] This inconsistency has led to confusion regarding when it is acceptable to be used and has created gaps in privacy protections. For example, the Canadian Border Services Agency faced criticism for collecting DNA from a former refugee and using IGG to search for relatives, hoping to determine his nationality for deportation purposes.^[44] This case exemplifies how, without clear national guidelines, IGG can be misused for purposes that many would consider disproportionate to the privacy invasion involved. Under a reasonable legislative framework, it would have been clear to authorities that this issue did not warrant the use of IGG, as the privacy implications would outweigh the necessity of its application.

Toronto offers a promising model for how national standards could work. Their guidelines restrict IGG use to serious, unsolved violent crimes and include important safeguards.^[45] Before turning to IGG, investigators must verify that the crime scene DNA is strongly linked to the accused and exhaust other investigative options. They are also required to consult with the Crown attorney and comply with the genealogy database terms of service, including transparent disclosure of their law enforcement status.^[46]

Given the cross-jurisdictional nature of IGG investigations, where DNA relatives often extend beyond provincial borders, the path forward seems clear: Canada needs comprehensive national legislation to govern the use of IGG.^[47]These standards should establish when and how IGG can be employed in investigations, ensuring a balance between solving serious crimes and protecting individual privacy rights.^[48]

In conclusion, IGG has proven to be a vital tool in solving cold cases, but its use raises serious privacy concerns that cannot be ignored. The case of Cochrane highlights the challenge of interpreting s 8 of the Charter within the context of DNA and public genetic genealogy databases, while also bringing to light the difficulties of addressing such issues within our current legal landscape. By analyzing the intersection of technology, privacy, and justice, it is clear that the absence of national regulations leaves Canadians uncertain where their privacy rights stand in relation to IGG. The challenge lies in crafting national legislation that acknowledges both the powerful potential of IGG in solving serious crimes and the fundamental right to privacy.

Endnotes:

^[1] Alex Stone & Emily Shapiro, “Former police officer, 72, arrested in decades-old 'Golden State Killer' case” (25 April 2018), online: <abcnews.go.com/US/suspect-arrested-golden-state-killer-case-sources/story?id=54719856>.

^[2] Nina F de Groot, Britta C van Beers & Gerben Meynen, “Commercial DNA tests and police investigations: a broad bioethical perspective” (2021) 47:12 J Med Ethics 788.

^[i3] Michelle Taylor, “How Many Cases Have Been Solved with Forensic Genetic Genealogy?” (3 March 2023) online: <forensicmag.com/594940-How-Many-Cases-Have-Been-Solved-with-Forensic-Genetic-Genealogy/>.

^[4] Claire Glynn, “Bridging Disciplines to Form a New One: The Emergence of Forensic Genetic Genealogy.” (2022) 13:8 Genes 1381.

^[5] Ibid.

^[6] Patricia Kosseim & Frederick Bieber, “Family ties: Using investigative genetic genealogy to solve crimes” (25 February 2022) at 06m:55s, online (podcast): <ipc.on.ca/en/media-centre/podcast/s2-episode-2-family-ties-using-investigative-genetic-genealogy-solve-crimes>.

^[7] GEDmatch is a website that allows people to upload their DNA data file from a testing company, such as Ancestry, 23andMe, FTDNA, or have a custom file from other sources. GEDmatch processes the file and adds it to a genealogical database and compares the user’s profile against other users who have uploaded their DNA profiles to learn about your family history, ethnicity, and potential relatives, and health insights (see R v Cochrane, 2023 ABKB 160 at para 11).

^[8] Brieanna Charlebois, “Genealogy test led to Ibrahim Ali’s murder arrest, but methods face ethical debate” (18 January 2024), online: < vancouversun.com/news/local-news/genealogy-test-led-to-ibrahim-alis-murder-arrest-but-methods-face-ethical-debate>.

^[9] Kosseim, supra note 6 at 06m:55s.

^[10] R v Cochrane, 2023 ABKB 160 at para 10 [Cochrane].

^[11] Ibid.

^[12] Ibid at para 27.

^[13] The Court analyzed many different issues in their decision of R v Cochrane, including issues of entitlement to a voir dire, cast-off DNA, and IGG privacy concerns. For the purposes of this blog, we will only focus on the later, that is on privacy concerns related directly to the IGG portion of the evidence (see Cochrane at paras 37-181).

^[14] Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

^[15] Cochrane, supra note 10 at para 46, citing R v Marakah, 2017 SCC 59 at paras 10-12.

^[16] Ibid.

^[17] Ibid.

^[18] Ibid at para 54.

^[19] Ibid.

^[20] Ibid.

^[21] Ibid at para 76.

^[22i] Ibid at para 77.

^[23] Cochrane (“‘Testers’ are individuals the genealogists identified in the family tree who had not previously used a public genetic genealogy database or had not specifically used GEDmatch. Det. Carriere or one of the genealogists would contact the “testers” and ask them either to submit a test and upload their DNA or upload their DNA profile if they had already used a DTC.” at para 25).

^[24] Ibid at para 77.

^[25] Ibid at paras 77-81.

^[26] Ibid at para 82.

^[27] Ibid at paras 87-165 citing R v Tessling, 2004 SCC 67 at para 32.

^[28] Ibid at para 88.

^[29] Ibid at para 91.

^[30] Ibid at para 92.

^[31] Ibid at para 94.

^[32] Ibid.

^[33i] Ibid at para 123.

^[34] Ibid at para 149.

^[35] Ibid.

^[36i] Ibid at para 165.

^[37] Ibid at para 235.

^[38] Groot, supra note 2 at 793.

^[39] Ibid.

^[40] Ibid at para 75.

^[41] Kosseim, supra note 6 at 02m:16s.

^[42] Katharina Clausius, Erin Kenny & Michael J Crawford, “BILL S-231: The Ethics of Familial and Genetic Genealogical Searching in Criminal Investigations” (2023) 6:3-4 J Med Ethics 43 at 45, citing DNA Identification Act, S.C. 1998, c. 37.

^[43]Canadian Association of Chiefs of Police, “Written Submission to the Standing Senate Committee on Legal and Constitutional Affairs” (23 November 2023) at 5, online (pdf): <cacp.ca/_Library/Position_Statements/CACP_Written_Submission_-_Bill_S-231_-_Use_of_DNA_-_2023-11-23.pdf>.

^[44] Office of the Privacy Commissioner of Canada, “CBSA’s use of commercial genetic genealogy in a deportation case contravenes the Privacy Act” (24 April 2023) online: <priv.gc.ca/en/opc-actions-and-decisions/investigations/investigations-into-federal-institutions/2022-23/pa_20230424_cbsa-dna/>.

^[45] Groot, supra note 2 at 793.

^[46] Ibid at 793-94.

^[47] Ibid.

^[48] Clausius, supra note 42 at 48.