GeneWatch Vol. 24 No. 5

GeneWatch Volume 24 Number 5 | August-September 2011

THE MAGAZINE OF THE COUNCIL FOR RESPONSIBLE GENETICS | ADVANCING THE PUBLIC INTEREST IN BIOTECHNOLOGY SINCE 1983

global human rights challenges of

FORENSIC DNA

ISSN 0740-9737

Inside >> Interview: Peter Neufeld, co-founder of the Innocence Project

The CSI Effect by Robert Perry What’s Next for Gene Patents?

with Sandra Park, ACLU

GeneWatch August-September 2011 Volume 24 Number 5

Editor and Designer: Samuel W. Anderson Editorial Committee: Jeremy Gruber, Sheldon Krimsky, Ruth Hubbard GeneWatch is published by the Council for Responsible Genetics (CRG), a national, nonprofit, taxexempt organization. Founded in 1983, CRG’s mission is to foster public debate on the social, ethical, and environmental implications of new genetic technologies.

The views expressed herein do not necessarily represent the views of the staff or the CRG Board of Directors.

Address 5 Upland Road, Suite 3 Cambridge, MA 02140 Phone 617.868.0870 Fax 617.491.5344 www.councilforresponsiblegenetics.org

board of directors

Sheldon Krimsky, PhD, Board Chair Tufts University Peter Shorett, MPP Treasurer The Chartis Group Evan Balaban, PhD McGill University Paul Billings, MD, PhD University of California, Berkeley Sujatha Byravan, Phd Centre for Development Finance, India Robert DeSalle, Phd American Museum of Natural History Robert Green, MD, MPH Harvard University Jeremy Gruber, JD Council for Responsible Genetics Rayna Rapp, PhD New York University Patricia Williams, JD Columbia University staff

Jeremy Gruber, President and Executive Director Sheila Sinclair, Manager of Operations Samuel Anderson, Editor of GeneWatch Andrew Thibedeau, Senior Fellow Magdalina Gugucheva, Fellow Cover Art Samuel W. Anderson Editorial & Creative Consultant Grace Twesigye Unless otherwise noted, all material in this publication is protected by copyright by the Council for Responsible Genetics. All rights reserved. GeneWatch 24,5 0740-973

Editor’s Note

Samuel W. Anderson

The United States government is storing the DNA profiles of over 10 million people. The FBI’s Combined DNA Index System (CODIS), developed as a national crime fighting tool, is the largest in the world.

The United Kingdom’s national database is the world’s oldest, and with nearly as many records as CODIS, represents around 1 in 7 British citizens. That’s a lot of people.

Should we be worried about this? Here are five important things to know about any forensic DNA database, courtesy of Michael Risher (also appearing on page 24 of this issue): Entry criteria. Who is (and isn’t) included? Who can be included?

Sample collection. What kinds of samples are being collected, and how?

Does the sample’s “owner” provide consent?

Removal criteria. What are the provisions for sample removal, if any?

Retention. How long are samples retained? What is retained—the original biological sample, or the data gathered from it?

Database access. Who has access to the database (and the samples)?

For what purposes?

Even the U.S. and UK forensic databases have not passed muster on many of the questions above. The question of who can be included remains hot, with the databases’ populations ballooning far beyond convicted felons, the original target group. Asking who isn’t included can be just as important as asking who is; in CODIS, for example, African American inclusion is disproportionately high.

When such basic questions remain with the databases that serve as models for many other countries, there is plenty of reason for concern about how this tool might be handled—and, more to the point, mishandled—by police in Egypt, Malaysia or Croatia. This issue of GeneWatch features articles from experts and activists highlighting these concerns in their own countries, from Germany and Portugal to India and China.

Activists in Pakistan wrote an article about the forensic DNA database planned in their country, and we could not publish their names out of concern for their safety. The article might have stopped there: we can only imagine what uses that kind of police force will find for a clearinghouse of citizens’ genetic information.

Despite all of the problems, the lesson that comes out of the following pages is not that forensic DNA technology is an inherently “bad” thing; in fact, it can be a very good thing. For instance, as Innocence Project co-founder Peter Neufeld points out (p. 29), DNA evidence is a powerful tool for exonerating the wrongly convicted; and used responsibly and competently, forensic DNA can be a highly effective crime solving tool.

From crime scene investigation to national DNA databases, forensic DNA is still just that: a tool. Most of the potential for harm stems from the way people use and understand that tool and from the way it fits into—and potentially alters—existing law enforcement systems. nnn

Write to (or for) GeneWatch GeneWatch welcomes article submissions, comments and letters to the editor. Please email anderson@gene-watch.org if you would like to submit a letter or with any other comments or queries, including proposals for article submissions.

Correction: In “Finding the Active Voice” (p. 23, GeneWatch Vol. 24 No. 3-4, print edition) we erroneously referred to “The California Stem Cell Research and Cures Act” in place of what the authors originally (and correctly) cited, “California’s 2006 SB 1260.”

Grace Twesigye

4

Forensic Genetics: A Global Human Rights Challenge As forensic DNA databases expand around the world, privacy and human rights safeguards aren’t keeping up. By Jeremy Gruber

7 The CSI Effect Don’t believe everything you see on TV: advances in forensic science are no guarantee of justice or fairness. By Robert A. Perry 9 Twenty Years of DNA Databanks in the U.S. The FBI’s national DNA database has expanded far beyond its original intent: to track convicted felons. By Sheldon Krimsky 12 The UK DNA Database: The Founder’s Effect What kind of precedent is the world’s oldest database setting? By Helen Wallace 14 Next Generation Identification in Pakistan Will the Pakistani government use its planned DNA database to violate human rights? Its track record is not promising. By Bytes for All, Pakistan 16 Forensic DNA in Hong Kong and China Hong Kong modeled its forensic DNA database after the United States’, with more leeway for police to gather samples without consent. By Philip Beh 18 “Stop the DNA Collection Frenzy!” A bluntly titled grassroots campaign takes on the unchecked expansion of Germany’s DNA database. By Susanne Schultz 20 Arguido or No: The Portuguese DNA Database The Portuguese forensic database is growing slowly, apparently - but with insufficient protections around sample collection, that could change in a hurry. By Helena Machado

22 Overreaching DNA Policies in India Proposed legislation in India would expand collection of and access to DNA samples far beyond forensic purposes. By Elonnai Hickok 24 Presumed Innocent? The Confused State of U.S. DNA Collection Laws How does DNA collection from individuals presumed innocent not constitute unreasonable search and seizure? By Michael Risher 27 Can a DNA Dragnet Undermine an Investigation? A Canadian investigation gone awry raises the question: are DNA dragnets necessarily good policing? By Micheal Vonn 29 Forensic DNA, The Liberator An interview with Peter Neufeld, Co-director and co-founder of the Innocence Project 31 Why DNA Is Not Enough DNA evidence has helped to exonerate scores of wrongfully imprisoned people, but a system that depends too heavily on DNA testing to protect the innocent is a failed system. By Elizabeth Webster 33 CRG Leads Successful Campaign to Enact Landmark Genetic Nondiscrimination Law By Jeremy Gruber 34 Gene Patents v The Common Good An interview with ACLU attorney Sandra Park 37 Rooted Resistance: Indian Farmers Stand Against Monsanto As India’s national government takes extraordinary measures to foist genetically modified seeds on farmers, those farmers—and the public—are fighting back. By Mira Shiva 38 Endnotes

Volume 24 Number 5

GeneWatch 3

Forensic Genetics: A Global Human Rights Challenge As forensic DNA databases expand around the world, privacy and human rights safeguards aren’t keeping up. By Jeremy Gruber DNA testing was initially introduced into the criminal justice system of the United States, one of the first countries to adopt its widespread use, as a method of developing supplemental evidence to be used in convicting violent felony offenders or freeing the innocent on a case by case basis. A 1992 report on New York State’s original DNA database legislation stated that it would be limited to: murderers and sexual offenders because DNA evidence is more likely to be uncovered in homicides and sexual attacks than in other crimes.

And sexual offenders… often are recidivists.1

Such a characterization is almost quaint by today’s standards. Over just a short time, function creep has overcome the system and the balance between the legitimate needs of law enforcement and individual rights has been lost. In the last fifteen years forensic DNA collection and the resulting databases have changed dramatically, with DNA collection by law enforcement around the globe now routinely being used for a multiplicity of purposes that pose significant privacy and civil rights concerns to every citizen with little public debate and few safeguards to protect against possible adverse effects. In the United States, for example, the federal government and all fifty states have created permanent DNA databases taken from ever-widening categories of persons and subjected these collections to regular searches. The result is that the United States now maintains the largest DNA database in the world, 4 GeneWatch

with the Combined DNA Index System (CODIS) holding over 9 million records as of 20112 (the United Kingdom’s National DNA Database (NDNAD) is of similar size giving it the unfavorable distinction of having the largest percentage of its population recorded on a national DNA database). This has occurred despite the fact that DNA is far different from other methods of identification such as fingerprints. It is a window into an individual’s medical history and that of their entire family.

Law enforcement now routinely uses these tools to search and profile citizens convicted of even petty crimes and collection practices are heavily trending towards the permanent retention of both biological samples as well as profiles from individuals arrested for but never convicted of a crime. At the same time that forensic DNA databases are expanding, a stunning array of techniques have emerged allowing lab technicians to glean information from DNA that goes well beyond the mere identification of a person and are providing law enforcement unprecedented access into the private lives of innocent persons by way of their own genetic data without a court order or individualized suspicion.

Some of these techniques include: 1) Trolling for suspects using DNA dragnets where police take samples from the public.

2) Comparing partial matches between DNA evidence and profiles in databanks to obtain a list of possible suspects from their relatives

(“familial searching”).

3) Constructing probabilistic profiles (including but not limited to race) of a perpetrator from DNA collected at a crime scene.

4) Surreptitiously collecting and searching DNA left behind on items such as cigarette butts and coffee cups.

5) The creation of local “offline” forensic DNA databases.

6) Dismissal of petty offense arrests in return for “voluntarily” joining a DNA database.

Many of the same problems that routinely plague criminal justice systems are reflected in these practices, including racial disparities in arrests and convictions. For example, while African-Americans are only 12% of the U.S. population, their profiles constitute 40% of the Federal database (CODIS). The lack of ethical guidelines for forensic DNA practices in the United States has implications far beyond just the American citizenry however. Governments around the world are looking to the United States as well as the United Kingdom for guidance.

Today, 56 countries worldwide are operating forensic DNA databases and at least 26 countries, including Tanzania, Thailand, Chile and Lebanon plan to set up new DNA databases.3 A ������������������������������ number of countries, including Australia, China, Israel, and New Zealand are actively in the process of expanding their databases. And a number of other countries, such as Bermuda, the United Arab Emirates, Uzbekistan and Pakistan are even August-September 2011

Operational DNA database Planned DNA database

proposing including their entire populations on their database. DNA databases around the world vary widely on issues ranging from access and consent to retention of both DNA samples themselves as well as the computerized profiles created from them. All of them share one common trait, though: a lack of sufficient privacy and human rights safeguards.

T������������������������������� h e growth of forensic DNA databases worldwide is often characterized as the natural response to public demands in each respective country.

But the alarming rate of creation and expansion of such databases, with little public input and discussion, has been anything but piecemeal.

Public and private entities from the US as well as the United Kingdom are actively promoting DNA databases, often portrayed as technical solutions to high crime rates. The UK’s Forensic Science Service (FSS), for example, has directly contracted with foreign Volume 24 Number 5

governments including the UAE. Meanwhile, the Department of Justice FBI Laboratory has worked with over 29 countries to plan and create their databases (running the FBI developed CODIS system) including promoting international agreements and authorizing legislation. Even individual US elected officials are actively promoting DNA databases abroad; Denver District Attorney Mitchell Morrissey, for example, regularly consults with foreign governments on their DNA databases.

The promotion of forensic DNA databases is by no means limited to government. A diverse private industry has developed to directly contract with foreign governments to build and maintain such systems, including offering policy recommendations largely modeled on United States practice. Over the last eleven years, Life Technologies has advised over 50 foreign governments and states on

forensic DNA legislation, policy and law and regularly makes promotional presentations to foreign countries. In 2009, for example, the government of Japan standardized their DNA collection and analysis for the country’s forty-seven prefecture laboratories using Life Technologies DNA testing systems. Life Technologies continues to provide support to Japan’s National Police Agency. Such services are by no means limited to those countries that request them either. In 2009 the Bermuda government signed a million dollar multi- year contract with Florida-based firm Trinity DNA solutions to set up and run their database after salesmen for the company had approached Bermudan officials engaged in a comprehensive marketing plan.

Efforts to share DNA data between countries have expanded just as rapidly, allowing for data sharing across borders with little oversight.

GeneWatch 5

Race? Debunking a Scientific Myth

“New techniques and new approaches can and will tell us an enormous amount about the biological history of our species; but they also teach us that this history was a very complex one that is very inaccurately – indeed, distortingly – summed up by any attempt to classify human variety on the basis of discrete races. While we can acknowledge that our ideas of race do in some sense reflect a historical reality, and that human variety does indeed have biological underpinnings, it is important to realize that those biological foundations are both transitory and epiphenomenal. Despite cultural barriers that uniquely help slow the process down in our species, the reintegration of Homo sapiens is proceeding apace.

And this places the notion of “races” as anything other than sociocultural constructs ever more at odds with reality. Increasingly, it seems, we are simply who we think we are.”

- from Race?

Debunking a Scientific Myth

By Ian Tattersall and CRG Board member Rob DeSalle

Available from Texas A&M University Press. Order by calling 800-826-8911, or visit www.tamupress.com.

6 GeneWatch

In Europe, data-sharing agreements established through the European Union (such as the PRÜM DNA Search Network) have begun this process.

In the United States, the National Institute’s of Justice International Center promotes information sharing among similar Institutes worldwide.

Certainly the single largest contributing factor to DNA sharing across borders is Interpol. Interpol, the largest international police coordinating organization, has facilitated plans to create and maintain an international DNA database since Resolution No. 8 of the 67th General Assembly4 in 1998 in Cairo. This resolution endorsed the encouragement of international co-operation on the use of DNA in criminal investigations and consequently the Interpol DNA unit was established. The objective of this unit is to: provide strategic and technical support to enhance member states’ DNA profiling capacity and promote widespread use in the international law enforcement environment.5

Through their DNA Gateway and G8/Interpol Search Request databases, Interpol is able to collate DNA profiles provided by member states and make these available to investigators globally where a match has been recognized. Interpol has 184 member countries and currently forty-nine members are making use of the DNA Database to varying degrees. Despite over ten years of operation, Interpol’s databases still do not have clear operating procedures; for example, there is no transparent system for removing DNA profiles nor are there standards for comparing requests between member states with sophisticated and not so sophisticated forensic practices.

In addition to simply maintaining the database, the Interpol DNA unit is also urging harmonization of technical standards and methods

across member states when creating DNA profiles from DNA samples.

A number of countries use different operational practices when treating genetic data. For instance, countries have different practices on the number of markers used in their national systems (which pose obvious issues of accuracy). Advisory groups have been formed in Europe and elsewhere tasked with improving harmonization of forensic DNA methods to allow for the ease of sharing data across national boundaries (such as the ISO Standards for DNA Database Exchange).

At the same time that the growth of forensic DNA databases is exploding, there has been little public discourse on the privacy and human rights concerns they raise; nor has there been any domestic or international effort to create standards reflecting such concerns including by those international bodies that are promoting information sharing. That may be changing. The recently established Forensic Genetics Policy Initiative, a collaboration of GeneWatch UK, Privacy International and the Council for Responsible Genetics, seeks to achieve a direct impact on the human rights standards adopted for DNA databases across the world. The project aims to build��������������������������� global civil society’s capacities to engage in the policy-making processes on the development of national and international DNA databases and cross-border sharing of forensic information and to protect human rights by setting international standards for DNA databases. An appropriate middle ground between the legitimate needs of law enforcement and a respect for individual rights is achievable. We must start now. nnn Jeremy Gruber, JD, is President of the Council for Responsible Genetics.

August-September 2011

The CSI Effect Don’t believe everything you see on TV: advances in forensic science are no guarantee of justice or fairness. By Robert A. Perry On July 7 the Las Vegas Metropolitan Police Department issued a video that explained how a mix-up in the department’s crime lab led to the conviction and imprisonment of an innocent man.1 The video presentation provided a detailed, step-by-step replay of what was essentially a documentary exposé of the manner in which apparently mundane human error can confound the science of forensic DNA—a technology that is perceived by many, including many scientists, to be all but infallible.

The perception is validated by compelling news accounts in which a Volume 24 Number 5

DNA specimen is the magic bullet, so to speak, that leads inexorably to the perpetrator. Media accounts of criminal forensics read like a script from an episode of the American television series CSI: Crime Scene Investigation.

Under optimum circumstances DNA is an extraordinarily precise forensic tool. However, the collection and analysis of DNA evidence is a human endeavor. It is susceptible to human fallibility—and venality—and this scientific fact has not been given sufficient consideration in the rush to create ever larger DNA databanks.

There is a growing body of research that demonstrates that error can and

does occur with extraordinary frequency. Professor William C. Thompson has observed that the problem is widespread; that it occurs even in the best labs; and that forensic scientists have downplayed the scope of the problem and its import.2 Thompson and his colleagues warn of “limitations or problems that would not be apparent from the laboratory report, such as inconsistencies between purportedly ‘matching’ profiles, evidence of additional unreported contributors to evidentiary samples, errors in statistical computations and unreported problems with experimental controls that raise doubts about the validity of GeneWatch 7

the results.”3 The problem is not mere negligence—mislabeling and cross-contamination of DNA samples, and computational mistakes—but also unconscious bias and something more sinister: the intentional misrepresentation of DNA analyses.

The routine use of forensic DNA in criminal investigations and prosecutions poses novel and complex challenges to the integrity of the criminal justice system. A former district attorney in Manhattan put the issue this way: DNA databanks do help apprehend dangerous criminals (and thereby prevent crime). But most people aren’t violent criminals and never will be, so putting their DNA on file exposes them to risks that they otherwise wouldn’t face. First, people who collect and analyze DNA can make mistakes. … Second, people can be framed by the police, a rival or angry spouse. Third, DNA is all about context; there may be innocent reasons a person’s DNA is at a crime scene, but the police are not always so understanding.4

A major study by the British Journal of Criminology finds that at a certain point there are diminishing returns to society, in terms of public safety, from the inclusion of DNA samples in a massive databank. The report raises concerns about the “tactical” use of DNA when interviewing suspects, and about police officers with insufficient knowledge of forensics resorting to DNA evidence in lieu of rigorous detective work.5 And, of course, these issues also pose a formidable challenge to the integrity of forensic science.

In a 2009 report the National Academy of Sciences issued a sweeping critique of the nation’s crime labs in the United States, observing that forensic scientists with law enforcement agencies “sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”6 8 GeneWatch

Other researchers have observed that lab technicians typically fail to take measures to “blind” themselves to the expected outcome of their analysis.

Studies of this phenomenon indicate that when faced with ambiguity in the information presented in a DNA sample, crime lab analysts will often fit their interpretations to support the prosecution’s theories.7 The proponents of an ever-expanding DNA databank dismiss such concerns, challenging the skeptic to demonstrate a wrongful conviction caused by error or abuse related to the use of DNA evidence. But this defense poses the wrong question. The pertinent question is this: Are there sufficiently rigorous and independent quality assurance procedures to ensure that error and abuse will be discovered; and if it is, will rigorous case review follow, along with sanctions and discipline if negligence or wrongdoing are involved? The answer is no.

If the foregoing is not sufficient to give pause, consider that twentyfive states require persons arrested to provide a sample for inclusion in a databank. Sixteen states now authorize law enforcement to investigate the family members of an individual whose DNA does not match crimescene evidence, but is a near match.

The scientific rationale for this practice is that a “partial match” between a crime-scene sample and the DNA of someone in the state’s databank may implicate a blood relative of that individual. This practice is aptly named: familial searching.

Consider this thought experiment: What is the race of the individual wrongfully convicted in the Las Vegas Police Department video? African American. To the extent error or fraud taint criminal investigations, the consequences—including wrongful prosecution and conviction—will be borne overwhelmingly by persons of color. The criminal justice system is not race neutral. The gross racial

disparities in the population incarcerated for drug offenses are but one example of this fact.

So what’s to be done? What is a reasonable, prudent response to the emergence of this CSI counter narrative?

First, it is incumbent upon policy makers to undertake a rigorous and objective reexamination of the assumptions that have informed government’s creation of an ever-expanding DNA databank. The scientific community must play a central role in framing the terms of this debate.

Second, policy makers must create a robust regulatory model that dictates rigorous quality assurance protocols; standards for the accreditation and review of lab performance; methodologies for evaluating the outcome and resolution of criminal investigations that involve forensic DNA; and procedures for protecting the privacy and due process rights of defendants.

A 2009 Supreme Court ruling reflects perhaps a growing awareness that advances in forensic science are no guarantee of justice or fairness. In that case (affirmed in a 2011 ruling) the court held that lab reports may not be used at trial as evidence of a person’s guilt unless the analysts who created the reports testify in court, subject to cross-examination. This requirement, Justice Antonin Scalia observed, “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” The right to confront witnesses would be required by the Constitution, Justice Scalia concluded, even “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”8 nnn Robert A. Perry, JD, is Legislative Director of the New York Civil Liberties Union.

August-September 2011

Twenty Years of DNA Databanks in the U.S. The FBI’s national DNA database has expanded far beyond its original intent: to track convicted felons. By Sheldon Krimsky Forensic DNA databanking in the United States began in 1990 as a pilot program serving fourteen states and local communities after an earlier start in Britain. The FBI’s goal in developing the national Combined DNA Index System (CODIS) linking all the state DNA databanks was to collect the DNA of convicted violent felons and recidivist sex offenders. Within two decades several trends can be identified: There has been an expansion of the categories of individuals whose forensic DNA samples are deposited into CODIS, extending from convicted felons and recidivist sex offenders to undocumented immigrants and misdemeanants who have neither been charged nor convicted of a crime.

Courts have continued to rule that forcibly taking blood samples or other sources of DNA from a suspect on the mere chance that incriminating evidence might be found violates the individual’s 4th Amendment protection. The 4th Amendment of the Constitution provides that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, except on probable cause.” Thus the forcible taking of one’s DNA is a breach of one’s privacy in the U.S. legal system and requires the state to have a probable cause or an overriding interest. In American jurisprudence, when suspicion is low and invasiveness is high, the 4th Amendment protection is generally high. In contrast, as suspicion grows and invasiveness diminishes, the protection against the invasion of privacy by law enforcement is diminished. Law enforcement agents can obtain a court order for forced Volume 24 Number 5

blood samples. As DNA identification no longer requires a blood sample— a cheek swab will do—its intrusiveness into the body has dropped propitiously, and with it 4th Amendment protection. In the U.K. mouth swabs and hair samples were reclassified from first being considered “intimate”

to “non-intimate.” Under British law non-intimate samples can be taken without a person’s consent from anyone arrested for a recordable offense and/or detained in a police station.

States and local police jurisdictions that legally obtain a person’s DNA for a forensic profile to be entered into a GeneWatch 9

database typically also retain the person’s biological sample, which contains intimate information about a person’s genotype.

Most courts have ruled that police can obtain a person’s DNA surreptitiously without a warrant, even as the person has an expectation of privacy for the information in the DNA left on a discarded object. Ironically, while a warrant is required to acquire the DNA from a person, the police are free to follow a person around or use a ruse to obtain one’s DNA when there is no probable cause and no warrant.

DNA can be used either to implicate or exonerate an individual accused or convicted of a crime. The power of DNA in exoneration is more powerful than its power in conviction. When the DNA doesn’t match, as in a rape, it is highly improbable that the incarcerated person is guilty of the crime.

When the DNA does match in a violent crime the evidence may be strong, especially when other evidence links the suspect to the crime, but there are other hypotheses which could explain a false positive match such as contamination. Over 250 prisoners have been exonerated for their crimes based on the probative post-conviction value of DNA evidence. Prosecution with DNA is the role of the state and federal police; exoneration with DNA is the role of non-profit organizations, such as the Innocence Project, which operate on philanthropy. Increasingly, states have recognized that prisoner claims of actual innocence have been thwarted by lack of access to the crime scene DNA, which could possibly exonerate them. More states are providing falsely convicted prisoners with compensation for their false imprisonment.

While privacy of one’s DNA has become increasingly valued and protected in medical genetics, in the workplace, and for people seeking health care insurance—as a result of passage of the Genetic Information Non-Discrimination Act (GINA)—the opposite trend can be found in the criminal 10 GeneWatch

justice system. The courts are more likely to view forensic DNA profiles as they do fingerprints: simply a means of identification. Moreover, because DNA can be taken from an arrestee by a cheek swab, the courts have lowered the bar on personal intrusiveness, thus expanding circumstances where police can obtain a DNA sample without a warrant.

GINA, passed in 2008, prohibits access to an individual’s genetic information by insurance companies making enrollment decisions or employers making hiring decisions. Whether collected by police or by insurance companies, an individual’s DNA can reveal inherited genetic disorders, predispositional disease states, parental linkages, ancestral identity, sibling connections, familial disease patterns and environmental and drug sensitivities. According to the American Society of Human Genetics, “Genetic information, like all medical information, should be protected by the legal and ethical principle of confidentiality.” Bioethicist George Annas noted: “It is useful to view the DNA molecule as a medical record in its own right for privacy purposes.” Many, but not all, of the privacy issues associated with DNA databanks would be resolved if the biological sample were destroyed once the forensic DNA profile was obtained. In Germany and Japan biological samples are routinely destroyed once a successful DNA profile is made.

In Germany profiles are destroyed upon acquittal or discontinuance of criminal proceedings.

Areas where law and policy remain to be resolved include “abandoned DNA,” “familial searching,” “arrestee DNA” and retaining DNA profiles of those not convicted of crimes.

In 2007, the New York Times (April 2) ran a story titled “Stalking Strangers.” Author Amy Harmon wrote: “They swab the cheeks of strangers and pluck hairs from corpses. They travel hundreds of miles to entice their suspects with an old photograph, or

sometimes a free drink. Cooperation is preferred, but not necessarily required to achieve their ends… The talismans come mostly from people trying to glean genealogical information on dead relatives. But they could also be purloined from the living, as the police do with suspects. The law views such DNA as ‘abandoned.’”

Helena Kennedy, chairperson of the Human Genetics Commission in the UK, commented after Parliament passed a law honoring the privacy of a person’s DNA to anyone outside of law enforcement: “Until now there has been nothing to stop an unscrupulous person, perhaps a journalist or a private investigator, from secretly taking an everyday object used by a public figure—like a coffee mug or a toothbrush—with the express purpose of having the person’s DNA analyzed.

Similarly, an employer could have secretly taken DNA samples to use for their purposes.” This is the first law of any country with a DNA databank that honors the expectation of privacy by prohibiting people who are not legitimate members of law enforcement from analyzing so-called “abandoned DNA.” Familial DNA searching allows police to explore the family members of someone who came up as a close but not exact match between a crime scene DNA sample and their profile on a DNA databank. The issue as yet unresolved is what privacy considerations can be given to family members of a person who has his or her forensic profile on a databank, when there is no probable cause. To what extent can police troll members of the population for evidence of guilt when all they have is a “familial DNA resemblance?”

In a July 12, 2010 editorial, the New York Times raised civil liberties and civil rights concerns over familial searching. “Hundreds of people could fall under suspicion simply because they are related to someone in the criminal DNA database. Because blacks and Hispanics are disproportionately August-September 2011

represented there, a first-time black offender has a better chance of having his DNA lead to a familial match than does a first-time white offender.”

Japan and Germany do not allow familial searching. In the United States individual states can pass their own familial searching laws and issue regulations for their use. Four states— California, Colorado, New York and Florida—have such laws. Only Maryland has categorically banned familial searching. At the very least, familial searching, which usually involves acquiring the DNA of family members to determine if there is an exact match, should be limited by a court warrant.

About 11 states have passed laws allowing police to obtain DNA forensic profiles of arrestees who have not been charged or convicted of a crime.

In November 2004, California voters passed Proposition 16 which amended the “DNA Fingerprint, Unsolved Crime and Innocence Protection Act.” According to Proposition 16, persons arrested or charged with any felony could be subject to warrantless seizure of their DNA. The arrestee provisions of the act were challenged. On August 4, 2011 the Court of Appeals of California struck down the arrestee provision of Proposition 16. The majority wrote: “[T]he DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees’ expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution.” This is the first major court decision that questions the extension of DNA databanking to arrestees.

With no suspects in a murder case, police have sometimes resorted to “DNA dragnets” in communities small enough to initiate a voluntary program of DNA collection from all men between certain ages. While Volume 24 Number 5

such dragnets have not proved very successful in tracking down the perpetrator, police add the forensic profiles they collect to the state databank, which enters it into CODIS. The people who provide the DNA do so to exclude themselves thereby narrowing the field of suspects. But they do not expect that, after being excluded as a suspect in the crime, their DNA will be under constant surveillance and remain on the national forensic network of felons when they were not arrested or charged with a crime. Most states do not guarantee to DNA dragnet volunteers, who are excluded as suspects, the removal of their forensic profile and the destruction of their biological sample.

In the Cape Cod community of Truro, Massachusetts, police began collecting DNA samples from nearly 800 male residents within three years after the murder of fashion writer Christa Worthington. While the DNA dragnet did not yield the murder suspect, the samples and forensic profiles of those men who had volunteered their DNA remained on the databank.

After a lawsuit filed on behalf of 100 men who had volunteered their DNA, by 2008 police had only “returned” the DNA of one man. This illustrates the need for uniform rules on returning the voluntarily submitted DNA of innocent people to law enforcement in community DNA dragnets. It should be part of the informed consent process that voluntary DNA of innocent people is taken off the databank.

The recent California Appeals Court decision suggests that many of the unresolved questions pertaining to forensic DNA will see their day in court, if not in the legislature. nnn

Genetic Justice: DNA Data Banks, Criminal Investigations, 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. The public is largely unaware of these changes and the advances that biotechnology and forensic DNA science have made possible.

Yet many citizens are beginning to realize that the unfettered collection of DNA profiles might compromise our basic freedoms and rights.

Two leading authors on medical ethics, science policy, and civil liberties take a hard look at how the United States has balanced the use of DNA technology, particularly the use of DNA databanks in criminal justice, with the privacy rights of its citizenry.

Sheldon Krimsky is a founding member of the CRG Board of Directors, Professor of urban and environmental policy and planning at Tufts University, and author of eight books and over 175 published essays and reviews.

Tania Simoncelli is a former member of the CRG Board of Directors and Science Advisor at the American Civil Liberties Union. She currently works for the U.S. Food and Drug Administration.

Sheldon Krimsky, PhD, is Chair of the Board of Directors and a founder of the Council for Responsible Genetics. He is a Professor of Urban and Environmental Policy and Planning at Tufts University.

GeneWatch 11

The UK DNA Database: The Founder’s Effect What kind of precedent is the world’s oldest database setting? By Helen Wallace

Britain’s DNA database is the oldest in the world, established in 1995.

Originally intended to retain the DNA profiles of persons convicted of serious crimes, in 2001 the New Labour government led by Tony Blair began to transform it from a criminal database to a database of suspects. Two changes in the law led to DNA being collected routinely on arrest for any recordable offence and held until the suspect reached 100 years of age, regardless of whether or not they were convicted of, or even charged with, any offence.

Britain’s low age of criminal responsibility (ten years old in England and Wales) and the wide range of offences classified as recordable led to people being added to the database for such alleged minor crimes as pulling each others’ hair or hitting a police car with a snowball. Although young black men were disproportionately affected, people added to the database came from all sectors of society, including a white grandmother arrested for theft when she allegedly failed to return a football kicked into her garden.

What was originally a populist policy became increasingly contentious as ordinary families found themselves or their children with permanent records on police, DNA and fingerprint databases, even when the police openly acknowledged they had done nothing wrong. The new legislation was implemented in England and Wales, and later in Northern Ireland, but the Scottish parliament blocked similar changes in 2006, arguing that indefinite retention of innocent people’s 12 GeneWatch

DNA was unacceptable.

During the debate in Scotland, a senior police officer claimed that 88 murders had been solved as a result of allowing the retention of innocent people’s DNA in England and Wales.

Similar figures were later repeated by Prime Minister Gordon Brown, but these claims were exposed as spurious. The false claims were based on a police estimate of the number of matches that had been obtained between DNA swabbed from murder scenes and unconvicted individuals on the database. The number of matches was not verifiable but, more importantly, matches are not solved crimes and many such matches are with the victims or with passers-by.

To date, a decade after expansion of the database began, the police have yet to identify a single example of a murder that would not have been solved if innocent people were taken off the database.

The UK statistics show that as the database has ballooned in size, there has been no increase in the number of crimes detected using DNA. This is presumably because many of the people added to the database over the past decade are at very low risk of committing the type of crimes for which DNA evidence may be relevant. The common misconception that a bigger database is better therefore needs to be rethought. A focus on analysing DNA from crime scenes, and on thorough traditional policing, has proved much more effective than testing and storing DNA profiles randomly from

arrested persons who are not suspects for a crime involving DNA. The law in England and Wales allowing retention of DNA and fingerprints following acquittal or when charges were dropped was challenged in the courts. However, the English courts ruled repeatedly that there was no interference with people’s right to privacy. The legal breakthrough came in December 2008, when the European Court of Human Rights made a unanimous ruling in the case of S. and Marper v. the UK that the UK law on DNA was clearly in breach of the European Convention on Human Rights. The UK government was forced to hold a consultation and adopted a new law allowing the retention of DNA and fingerprint records from unconvicted persons for six years after arrest, a position regarded by many as still in breach of the Convention.

Following the UK elections in May 2010, the new Coalition Government committed to rolling back this

To date, a decade after expansion of the database began, the police have yet to identify a single example of a murder that would not have been solved if innocent people were taken off the database.

August-September 2011

legislation: a new bill is currently being debated by parliament that would make the law in England and Wales similar to Scotland’s. Although aspects of the bill require improvement, about a million innocent people’s records are expected to be taken off the database. In addition, all biological samples will be destroyed once the DNA profiles stored on the database as a string of numbers have been obtained from them, providing an important additional safeguard to prevent access to sensitive genetic information.

One of the most disturbing aspects of the UK DNA database expansion is the way in which it was intended to set a precedent for DNA databases around the world. Lobbying for the changes in the law came not from the police but from commercial interests, which wished to profit from analysing the DNA of every citizen in every country. In 2003, the UK watered down UNESCO ethical guidelines for genetic databases, which originally stated that DNA from innocent people should be destroyed at the end of an investigation. In 2005, the US adopted the Violence Against Women Act, mirroring the UK law at a Federal level.

The Act allows the uploading of DNA profiles to

Volume 24 Number 5

People added to the database came from all sectors of society, including a white grandmother arrested for theft when she allegedly failed to return a football kicked into her garden. the federal database on arrest, rather than on charge or indictment, and removes the burden from the State to remove the DNA profile of someone who is later acquitted or whose charges are dismissed. In 2006, the UK Forensic Science Service (FSS) signed the first of series of contracts with the United Arab Emirates, with the aim of putting the entire population on a DNA database. Other countries, such as South Africa, became the targets of lobbying to expand their databases along the same lines as the UK law. A draft Bill in South Africa was dropped following the decision by the European Court of Human Rights, and more careful consideration is now being given to the need for better safeguards.

DNA is undoubtedly a useful tool for solving crimes; during an investigation it can exonerate the innocent as well as helping to convict the guilty.

But databases of individuals’ DNA profiles, linked to sufficient personal information to allow the police to track them down, raise important issues

+about human rights. The same technology that can track a criminal through their DNA can also be used by abusive regimes to track political opponents or identify their relatives. If a DNA database is not secure, unauthorized access could reveal the identities of individuals who may be hiding for good reason on witness protection schemes, fleeing from an abusive relative, or working as an undercover officer. In countries where sex outside marriage is a criminal offence, women may be put at risk by familial searches of the database for a suspect’s relatives, because such searches can reveal non-paternity.

These risks are not offset by increased benefits as DNA databases grow in size. Larger databases increase the risk of errors and false matches—which can occur by chance or through poor laboratory practice— and hence risk miscarriages of justice.

And, as the UK data shows, expanding DNA databases can deliver very little benefit, as a large proportion of most populations is very unlikely to commit serious crimes for which DNA evidence might be relevant.

The question remains what kind of precedent the UK’s experience will set for other countries: one in which unfettered expansion of such databases is the norm, or one in which some important lessons are learned from some serious mistakes. There is a choice between allowing narrow vested interests to set the agenda for DNA database expansion or having a balanced debate of the pros and cons, taking full account of the impacts on civil liberties and human rights. nnn Helen Wallace is the Director of GeneWatch UK.

GeneWatch 13

Next Generation Identification in Pakistan Will the Pakistani government use its planned DNA database to violate human rights? Its track record is not promising. By Bytes for All, Pakistan*

Pakistan faces some of the most unique socio-economic and developmental challenges in the world. A developing country with a population of around 180 million people and the frontline state in the “war on terror,” Pakistan is suffering acutely as the war takes its toll on all aspects of its development. Due to the worsening law and order situation, and in the name of national security, a huge population is deprived of its basic rights. Censorship and surveillance in the name of religion and national security is on the rise along with the government’s quest to build huge databases of citizens without any legal protection.

In an environment of escalating militancy and consequent violence 14 GeneWatch

in Pakistan, these complexities and contradictions severely undermine capacities for good governance, improved human rights and the restoration of order in the country.

Several governments around the world have large plans and grandiose ambitions to create a national DNA database. The desire of DNA profiling of all its citizens is far stronger in developing countries and authoritar����������� ian regimes like Pakistan������������� . The government in Pakistan is also planning to develop a national database containing DNA profiles of all its citizens.1 This DNA database would then be linked to the world’s largest centralized biometric citizen database of around 90 million individual records: NADRA2 (National Database and

Registration Authority) database also termed as Next Generation Identification (NGI).3 The idea behind the creation of a DNA database in Pakistan is to link it with the existing biometric based computerized national identity card system to track down criminals and terrorists. This database has lofty plans, such as identifying suicide bombers as well as the victims of accidents, man-made and natural disasters and military conflicts.

A meeting of civilian and military law enforcement agencies have already decided that NADRA would form and maintain a database on terrorists.4 NADRA would develop a biometric database of terrorists and criminals and make a tree of their August-September 2011

family members available to law enforcement agencies.

During the recent terrorists attack on the Pakistan Naval Shipping (PNS) Mehran Base5 in Karachi, DNA tests were conducted in order to identify the terrorists. These samples were also matched with the NADRA database, which revealed that these terrorists were not registered Pakistanis.6 NADRA employed sophisticated biometric and facial recognition systems to attempt to identify the terrorists, but the system so far has not been successful in most such cases.

Pakistan has recently established the world’s second largest forensic science laboratory in Lahore to counter terrorism and help police in investigations of criminal cases.7 This laboratory will provide services in 14 forensic disciplines, including toxicology, forensic photography, narcotics, trace chemistry, DNA and serology, crime scene investigation, firearms and tool marks, death scene investigation, questioned documents, computer forensics, latent prints, polygraph, pathology and audiovisual. The government is also seeking the support of international development partners in further strengthening of the laboratory.

DNA forensics involve complex statistical calculations and require extremely careful handling to prevent errors; sample contamination and other problems have been well documented. While any two genetic profiles can be matched with a high degree of certainty, large forensic database scans have led to perplexing results. Take, for example, a 2005 examination of Arizona’s criminal database. The entire enterprise of DNA databases is based on the idea that Volume 24 Number 5

no two people share the same profile. But Arizona’s database of 65,000plus entries was shown to have more than 100 profiles that were similar enough for many experts to consider them a “match.” In separate studies, it has been reported that Illinois’ and Maryland’s databases had hundreds of seemingly unique genetic profiles matching one another. This is a phenomenon that suggests people convicted solely on evidence from DNA databases may have profiles that coincidentally match the real perpetrators’, leading innocent people to be

There is absolutely no legal protection for citizens in Pakistan to counter the hegemony of any law enforcing agencies. incarcerated.8 The human rights problems of universal databases are hard to grasp for some segments of society. Here’s an example that should give anyone pause. Adultery is haram in Islam and a criminal offence in Pakistan; the penalties can range from public flogging to death by stoning. A universal database would instantly prove (or appear to prove) both paternity and non-paternity for a family tree. While the Pakistani government argues that its planned database would not be used to violate any human rights or privacy of citizens, the temptation will always be there. Ultimately abuse of that knowledge seems almost inevitable once it gets into law enforcement agencies’ hands. In addition,

there is absolutely no legal protection for citizens in Pakistan to counter the hegemony of any law enforcing agencies.

The existing NADRA database holds name, gender, race, address, identity number, fingerprints, facial biometric details, photos, as well as travel details including border entries and exits. This next generation identity database is not only designed to allow the collection and storage of these presently used identification metrics, it is also built to accommodate identifiers that are likely to become more common in the future, which easily could include individuals’ DNA profiles.

NADRA also has very advanced photo storage and facial recognition capabilities that enables an increased ability to locate potentially related photos (and other records associated with the photos) that might not otherwise be discovered.

Linking a DNA database with such a powerful system would eventually make it much easier to locate and track individuals across many aspects of their personal lives, from phone calls to traveling patterns.

With the introduction of the planned DNA database, Pakistan will enter into a new age of high tech monitoring and surveillance of its citizens.

However, a society which imposes such massive surveillance upon its citizens is not, in principle, free. nnn * The individual authors requested anonymity for reasons of personal safety.

GeneWatch 15

Forensic DNA in Hong Kong and China Hong Kong modeled its forensic DNA database after the United States’, with more leeway for police to gather samples without consent. By Philip Beh The introduction of forensic DNA technology in Hong Kong was fortuitously delayed in that the early problems with statistics and standardizations had more or less been resolved before Hong Kong introduced forensic DNA into criminal case work. Despite the late introduction, Hong Kong began with RFLP (restriction fragment length polymorphism), a nearly obsolete technology, but eventually drifted into the now widely accepted STR platform. In actual fact, the forensic science laboratory in Hong Kong essentially adopted the United States’ scheme; CODIS, the FBI’s forensic DNA database system, was the backbone of the system used for establishing Hong Kong’s DNA database.

DNA database authorizing legislation was introduced as an Amendment Bill to three existing pieces of legislation: Dangerous Drugs Ordinance, Independent Commission Against Corruption Ordinance

16 GeneWatch

and Police Force (Amendment) Bill 2000. The passage of the legislation was not easy, involving nearly twenty meetings at the Legislative Council (Hong Kong’s equivalent of a parliament) where members raised concerns about privacy and oversight.

The legislation essentially attempted to sooth legislators’ concern with regards to control of the database by separating the information between two departments: the Hong Kong Police Force and the Government Laboratory, which is under the umbrella of the Department of Health. Personal details such as name, age, and sex are held in police databases and linked to an identifier number. This identifier number is unique and is then linked to DNA data stored in a database held by the Government Laboratory.

The legislation allows for storage of DNA information of persons convicted of a “serious arrestable offense.” “Serious arrestable offense,”

however, was ingeniously given a short description in a Schedule in the legislation with a comment that the listed offenses were for ease of reference only. The listed offenses include criminal intimidation, assault, buggery, procurement by false pretenses, and intercourse with a girl under 16, among others. In effect, DNA samples can be collected in a far wider range of offenses than was actually written in the legislation.

Specimens can be obtained with or without consent. In the event that no consent is provided, a Superintendent of Police must authorize the collection of a non-intimate sample (buccal swab) after satisfying himself/herself that the sample is taken from a person suspected of committing a serious arrestable offense and that the results of the sample will tend to confirm or disprove the commission of the offence.

The legislation further makes provision for the disposal of samples

August-September 2011

and records if the person was eventually not charged, discharged by a court before conviction or had been acquitted of an offence at trial or on appeal.

The number of data currently stored in the DNA database since its introduction in 2000 is reported to be 34,154 at the end of 2009, as recorded in the Annual Report of the Government Laboratory. The number of tests performed were reported as 4,915 (2009), 4,009 (2010) and 4,600 (2011). The data now includes data from 15 STR loci. It is unclear, however, how many records have been removed following non-convictions.

At the time of writing it is not known if Mt-DNA databases and SNP databases are being recorded.

It is also unclear if the current DNA database involves only the storage of data or if biological samples are being stored as well.

Despite the existence of a DNA database for almost a decade, there have been no reported wrongful conviction cases in Hong Kong. It is the writer’s view that there are probably a variety of reasons for this,

Volume 24 Number 5

but one critical element is that of a system of proper storage of biological samples in conditions where retesting is possible. At this moment, however, there is a lack of independent forensic testing capabilities to support such re-testing efforts.

There is much high end research activity in Hong Kong involving genetic material from clinical patients obtained with consent. However, there is currently no territory wide oversight legislation on the storage of such data. There is also no attempt to centralize such material and data into a biobanking facility.

Indeed there appears to be resistance to such a move from various stakeholders.

Forensic DNA capabilities in China have advanced by leaps and bounds. Many forensic laboratories in China now have the latest equipment and perform large numbers of tests on paternity, as well as on criminal cases. A recent news article announced the setting up of a missing children DNA database. However, to my knowledge there is no national DNA database in China. There are certainly multiple DNA databases

kept in public security bureau forensic facilities in the major cities in China, but it is less clear if this data is readily comparable or how it is being used. One of the barriers faced is that in the initial rush to perform forensic DNA work, some laboratories developed their own STR probes; hence there is a lack of standardized easily comparable probes, though time will probably lead to such a capability. A quick review of forensic literature will reveal that there are many forensic centers in China now producing cutting edge research work in forensic DNA involving MtDNA, SNP’s and even into areas of phenotyping. As China’s forensic DNA collection practices rapidly advance and mature, it remains to be seen whether they will be accompanied by increased oversight. nnn Dr. Philip Beh is Associate Professor of Forensic Pathology in The University of Hong Kong’s LKS Faculty of Medicine.

GeneWatch 17

“Stop the DNA Collection Frenzy!”

A bluntly titled grassroots campaign takes on the unchecked expansion of Germany’s DNA database. By Susanne Schultz

On the 23 of May, at the anniversary of the German constitution, various civil rights and data protection organizations handed an open letter to the German minister of Justice. They asked Sabine LeutheusserSchnarrenberger to take action in order to control and restrict the storage of DNA profiles by the German police and to cancel projects of international exchange of DNA data at the European and transatlantic level.

The campaign “Stop the DNA Collection Frenzy!” points at various problems of DNA data mining by the German police. The central DNA database of the German criminal police, the BKA (Bundeskriminalamt) has expanded dramatically since its installation in 1998 to currently over 920,000 DNA profiles stored. Most of them (730,000) are profiles of individuals; the other 190,000 profiles derived from crime scene samples.

According to law the German police are allowed to store DNA profiles from adolescents and adults accused or convicted of major offenses. Since the law reform of 2005, it counts also as a major offense when crimes are expected to be repeated and thereby are interpreted to sum up to a major offense. This is the legal basis for a daily police practice to also request DNA analyses from people accused of theft or other minor offenses. And since 2005 reform, the police are also allowed to pass a judicial order normally required for DNA extraction and analysis in the case that the person consents “voluntarily” to the 18 GeneWatch

DNA analysis. Thus, it has become normal police routine to avoid the judicial consent because people arrested or confronted otherwise with the police do normally not insist on their right to get a judicial order. According to the official German data protection officers’ reports, today more than 90 percent of DNA samples are given in this sense “voluntarily.”

That may also explain why a lot of samples stored within the central BKA DNA database are not even complying with the lax and unclear legal criteria for storage. One random test organized by the data protection officer of the state of Baden-Württemberg, for example, resulted in 42% of the profiles controlled having to be deleted from the database afterwards.

Those checks are rare and arbitrary actions that the official data protection officers take only when they have time for it. Generally there is no regular comprehensive and independent control of the DNA database and for example no guarantee that profiles once stored are deleted after 10 years in the case of adults and 5 years in the case of adolescents, as the law requires. The result of this nontransparent and expansive DNA collection by the German police is that it is shifting to become a tool of daily police investigation and an instrument to store data of whole population groups—especially of those who are affected by a society with an increasing gap between the rich and the poor. While the German public still believes that DNA profiles are used for capital

crimes such as murder and rape, the statistics of the BKA tells a different story. Most of the matches it reports refer to minor offences; for example, 63% of the matches the databank provided are related to theft while less than 3 percent related to rape and murder.

Another problem for data protection activists are the dragnets German police often use in the case of major crimes. Formally the participation in such DNA tests is voluntary. Nevertheless, there is not only considerable social pressure to participate, but there have also been cases in which the public prosecution offices applied to force test refusers to DNA testing without any other evidence against them. This procedure tends to turn the presumption of innocence on its head, making the accused “guilty until proven innocent.”

It was also during a dragnet that it first became public that German police are also already involved in familial search strategies. In the little town of Dürpen, the police arrested a young man accused of rape because they had analyzed the DNA of his two brothers who had participated in the dragnet. Because of partial matches August-September 2011

between crime scene DNA profiles and these brothers they had identified the suspect.

Data protection organizations are therefore not only concerned with the dramatic quantitative expansion of the database but also with qualitative changes that might become more important within the future of DNA testing and advancing human genome research. The fact that this case of familial searching remained uncontested—even though the law officially restricts forensic DNA analysis to the identification of suspects and does not allow the analysis of personal traits except the sex of a person— shows that legal barriers are porous.

Forensic laboratories in some cases also transgress this limit when they analyze, for example, the “biogeographic” origin of a searched person via DNA analysis, as has happened in some cases in the last several years.

Another problematic issue for the German campaign against expanding DNA databases is international exchange of data. One such project is the European Union’s process of exchange of police DNA data, called the process of Prüm because it has its precedence in a treaty of exchange of police data between seven European countries signed in the German town of Prüm. The treaty allows an automatic daily comparison of all DNA profiles in the different national databases and allows national police to search for matching profiles in the DNA databases of the other European law enforcement agencies. In 2008, this model was taken over by a decision of the European Commission, and currently the DNA data exchange between the 27 countries of the European Union is on its way to being fully implemented. There are still some technical and bureaucratic obstacles keeping “Prüm” from working entirely between all countries. Nevertheless Volume 24 Number 5

the automatic exchange of data between countries of very different data protection safeguards is another concern for civil rights organizations.

The Prüm treaty has been also the model for a bilateral treaty between the US and Germany signed in 2008.

In this case of transatlantic DNA profile exchange, the public has remained nearly totally uninformed. Members of the leftist Party DIE LINKE recently therefore conducted a Parliamentarian inquiry in order to get better information about the stage of this transatlantic DNA exchange.

Meanwhile, the campaign “Stop the DNA Collection Frenzy!” protested in numerous public places in order to raise public awareness of DNA storage as a problematic arsenal of state surveillance. A huge cotton swab called “Willi Watte” accompanied all campaign activities. Its engagement can be seen at the homepage of the campaign (www.handsoffmydna.eu). nnn Susanne Schultz is Project Manager of the Gen-ethical Network (Gen-ethischen Netzwerks) in Germany.

GeneWatch 19

Arguido or No: The Portuguese DNA Database The Portuguese forensic database is growing slowly, apparently - but with insufficient protections around sample collection, that could change in a hurry. By Helena Machado

Regulation In Portugal, as in most European continental judicial systems, judges play a prominent and active role in the examination process and in imposing the rules of DNA evidence and court procedures. This inquisitorial orientation of the Portuguese criminal justice system is also reflected in the DNA database law, as the collection of samples for criminal investigation purposes and the inclusion of DNA profiles in the database requires a judge’s order. Collection of a biological sample can also be carried out at the request of the official suspect (arguido—that is, according to the Portuguese Penal Process Code, an individual against whom a formal accusation or inquiry has been brought).

Law 5/2008,1 published on 12 February 2008, which approved the creation of a DNA profile database in Portugal, combines separate purposes within the same law, namely civil identification and criminal investigation.

The custodian of the DNA database is the Ministry of Justice, while the National Institute of Legal Medicine (NILM) is the institution responsible for processing the data it contains and for communicating the results of analyses to the competent judicial authorities. All the activities developed by the NILM are supervised and controlled by an independent Supervisory Body (Conselho de Fiscalização) with powers of authority, nominated by the Portuguese Parliament.

The Portuguese National DNA database can include DNA profiles from: 20 GeneWatch

volunteers, unidentified corpses (for civil identification purposes), missing persons or their relatives, crime scene stains, persons convicted to not less than three years in prison, and laboratory and crime scene personnel who collect and analyze samples.

Profiles are eliminated from the DNA database in certain situations.

For example, profiles derived from crime scene samples that do not match the profile of the accused are eliminated 20 years after collection of the respective samples, and profiles from convicted offenders are eliminated at the time of the definitive cancellation of criminal records, a maximum of 10 years after the sentence has been served. All profiles derived from unidentified crime scene stains must be removed 20 years after collection.

Consent and ethnicity The law states that free, informed and written consent is required in order to collect a biological sample from volunteers, relatives of missing persons and professionals who work in sample collection and analysis.

Samples from official suspects and convicted offenders can be collected without consent by decision of a judge.

Furthermore, the identification and collection form, in all its versions (for volunteers, people involved in civil identification procedures, convicted individuals and official suspects and forensic professionals), requires the identification of the individuals’ ethnic group, as well as the ethnic group

of the mother and father. Being based on self-classifications or visual assessments made by the forensic personnel, ethnic categories might not correspond to ethnic classifications used in population genetics and are rarely applied to some groups, even by the individuals themselves, with any consistency.2 The inclusion of the ethnic group category in the information collected from individuals whose DNA profiles will be added to the database contradicts a trend that has prevailed until now in Portuguese legislation regarding the prevention of discrimination which has been evident, for example, in the fact that crime statistics only record nationality, not ethnicity or phenotype.

Current status of the DNA database There is not yet any official data regarding the number of samples and DNA profiles held by the NILM. In early January 2011, the press announced that less than 100 profiles were included in the DNA database.

Apparent causes for this modest growth were associated to the restrictive nature of the legislation and financial costs of constructing the DNA database. The fact that a judge has to issue an order for the entry of the profile of an individual (receiving a sentence of three years or more) in the database, according to the press news, has been causing many profiles to be destroyed because judges are not ordering their inclusion, apparently due to still insufficient information on how the forensic DNA August-September 2011

database operates and because of the financial crisis that is presently affecting the Portuguese courts.

The high costs associated with DNA analysis when compared to other European countries have also been a matter of concern regarding the development of the Portuguese DNA database. Prices were stipulated by the Ministry of Justice3 and depending on the degree of complexity of the analysis—which is used as a step to increment costs, but is not properly defined—a DNA analysis for the purpose of inclusion in the database can cost between 204€ and 714€ ($278 and $973) per sample.

There is also the matter regarding the databases maintained by the Polícia Judiciária (the criminal investigation police). Unlike the Spanish case, which made arrangements in the law that regulates the functioning of police databases4 to include and centralize information from already existing

databases in the autonomous regions, the Portuguese law did not mention the fate of the samples and profiles collected by the criminal investigation police until the DNA database was created.

The Portuguese criminal investigation police have files that contain fingerprints collected from suspects and convicted individuals, as well as biological samples and DNA profiles, but this information has not yet been legalized. There are no official numbers about the size, sort of data or any other details about police databases.

Nevertheless, in January 2011 some Portuguese newspapers announced that the laboratory of the criminal investigation police held about 2,000 DNA profiles collected from crime scenes, suspects and convicted individuals.

The Portuguese Data Protection Authority (Comissão Nacional de Protecção de Dados, or CNPD) has

recently announced that the police records contain information that violates the law on personal data, namely files with data regarding ethnicity, behavior in private life, religion, and political and trade union affiliation.5 Negotiations are now being made between the criminal investigation police and the Supervisory Board (Conselho de Fiscalização) that controls all the activities related to the forensic DNA database, to decide if and how those profiles held by the police will be uploaded in the national database,6 although the police initially argued that there were technical problems that would prevent the transfer of data.

Hence, even if the information and genetic material was to be included in the central DNA database, there are no legal guarantees regarding the circumstances in which the material was collected and there was no supervising authority in place at the time in order to monitor these activities. Data from a study conducted among Portuguese prisoners7 suggests that the collection of samples could have been made with the use of violence. nnn Helena Machado is Associate Professor in the Department of Sociology at the University of Minho (Portugal) and an expert in the field of the sociology of forensic genetics.

Acknowledgments: The author is grateful to Filipe Santos for editing support and collaboration in collecting press news about the Portuguese forensic DNA database.8

Volume 24 Number 5

GeneWatch 21

Overreaching DNA Policies in India Proposed legislation in India would expand collection of and access to DNA samples far beyond forensic purposes. By Elonnai Hickok Introduction Over the years Indian law enforcement agencies have been permitted, through evolving legislation, to collect material containing DNA as a way of providing additional evidence for the conviction of criminals in India. Starting in the 1920s, the collection and use of biometrics for identification of criminals legally began for India with the approval of the Identification of Prisoners Bill.1 The object of the Bill is to “provide legal authority for the taking of measurements of finger impression, foot-prints, and photographs of persons convicted or arrested.”2 The Bill is still enforced in India, and in October 2010 was amended by the State Government of Tamil Nadu to include “blood samples” as a type of forensic evidence. Other Indian legislation pertaining to forensic evidence is the Code of Criminal Procedure (CrPc) and the Indian Evidence Act. In 2005, the CrPc was amended to authorize investigating officers to collect DNA samples with the help of a registered medical practitioner.3 Both the CrPc and the Indian Evidence Act fail to address the collection and testing of DNA effectively as they do not set procedures for how the DNA samples should be collected, stored, shared, accessed, secured, and destroyed.

Though India allows the collection of DNA samples by law enforcement agencies for identification purposes, it does not have a national law in force that regulates how governments collect, store, create, and use DNA profiles of accused persons. A DNA profile is created when DNA samples are taken from individuals and are analyzed in laboratories to produce a digitized 22 GeneWatch

representation of the sequence. Once created, a DNA profile is stored on a database with other identifying information from the individual and information from the crime scene. Creating DNA profiles and using them to solve crimes has been a growing global practice over the past two decades. Despite the lack of explicit safeguards and regulations, both governmental and nongovernmental laboratories have been collecting, testing, and storing DNA samples/profiles for many years. These laboratories function off of internal policies and run DNA tests for both forensic purposes (identifying criminals, victims, etc., conducted by both private and public labs) and personal purposes (paternity and medical, conducted by private labs).

Proposed Legislation In the past few years, two pieces of legislation that serve to regulate the use of DNA for forensic purposes have been drafted or proposed in India. The most recent legislation, titled the Privacy Bill 2011, was leaked to the public in the spring of this year. If passed, the Bill will allow for the collection of DNA samples only with the consent of an individual, and will prohibit the public disclosure of such information to the extent that it will adversely affect an individual’s right to privacy in a way that would amount to a civil wrong. Though the Bill creates an important standard by mandating consent, it fails to comprehensively protect and regulate the use of DNA data.4 In 2007, a Bill known as the Draft DNA Profiling Bill was piloted by the Centre for DNA Fingerprinting and Diagnostics, an autonomous organization funded by

the Department of Biotechnology in India’s Ministry of Science and Technology. The Bill is pending in Parliament, and aims to legalize the collection and analysis of DNA samples for forensic purposes in order to “enhance the protection of people and administration of justice through analysis of DNA found at the crime scene, and establish identity of victim and offenders.” In its current state, the Bill would permit DNA to be collected and stored in a way that raises many concerns related to privacy and civil liberties.

Most concerning, through a list that outlines the circumstances in which DNA can be collected, the Bill allows for the DNA of innocents who are not related to a crime scene, are not victims, and are not criminals to be added to DNA databases.5 This list can be expanded by the DNA Board as they deem appropriate.6 Furthermore, the Bill does not specify at what point exactly DNA can be collected e.g., whether the DNA can be collected on arrest or on charge, whether the DNA has to be directly relevant to the offence, whether the police decide this for themselves, and what are the oversight mechanisms for these decisions.

Permitting the collection and storage of innocent people’s DNA is dangerous for many reasons and extends the core rationale of collecting DNA far beyond “for forensic purposes.” As noted by the American Constitution Society for Law and Policy, by adding the DNA data of individuals with no discretion to these databanks, the governmental intent is presumptively changed from one of criminal investigation to population surveillance.7 The debate over holding an innocent person’s DNA is key to understanding the core of what can August-September 2011

and should be protected when formulating safeguards and regulations. Does the state ever have an interest in DNA aside from criminal identification? If so, should the government collect the DNA explicitly for that purpose?

Even in maintaining data for investigative purposes, there are questions as to which data should be kept. On the one hand, conviction is a bright line. On the other hand, if there was significant evidence but not enough to convict, is the Government justified in wanting to keep evidence in case a pattern of crime starts emerging? Is the answer the same for all countries? For all crimes? Is the answer derived from a fundamental understanding of state versus individual or is it a reflection of a specific national ethos? Who decides?

Another area of concern is that the Bill allows for the complete storage of DNA samples and DNA profiles from volunteers, suspects, victims, offenders, children (with parental consent) and convicted persons.8 Complete DNA samples taken from individuals contain unlimited genetic information (including health-related information) and are not needed once the profile is created. The primary purpose of retaining DNA profiles on a criminal database is to help identify the individual if they reoffend—not to exonerate Volume 24 Number 5

innocent people or solve past crimes.

Stored DNA profiles could in theory be used to track any individual on the database or to identify their relatives, so strict safeguards are needed to prevent misuse.

The comprehensive storage of DNA profiles is also alarming, because the Bill allows for the DNA Profiling Board to grant law enforcement agencies full and direct access to DNA profiles.9 The primary argument for the creation of DNA databanks for convicted felons is for exact identification in order to help police solve crimes. Because forensic labs have developed extensive techniques that allow for lab technicians to gather information from DNA samples that is far beyond what is needed for the identification of a person,10 and because the pool of DNA samples goes well beyond convicted felons, permitting unrestricted use of DNA databases is dangerous, and can easily be abused by law enforcement and private entities. DNA facilities are becoming more widespread in India through the establishment of multipurpose forensic laboratories accessible to law enforcement and intelligence agencies. For instance, new forensic laboratories with DNA testing facilities have recently been set up in Assam, Mumbai, and Hyderabad.11 The growth of forensic

labs in India has also come at a time when the Indian Government is pushing for stronger surveillance regimes, revamping policing systems, and passing legislation that permits intelligence agencies easy access to individually identifying material. For instance in 2010, the Government established NATGRID, a program which aims to link information from different databases such as tax, travel, financial, and criminal information. The linking of these databases will allow intelligence agencies to create comprehensive profiles of residents in India.12 If law enforcement agencies are granted direct access to DNA profiles, it could be too easy for NATGRID to add DNA information to its collection of databases.

Additionally, the Union Home Ministry has recently launched the Crime and Criminal Tracking System in Assam, Kerala and Uttar Pradesh. The system looks to facilitate collection, storage, retrieval, analysis, transfer and sharing of data and information between police stations, their state headquarters, central police organizations and other security agencies.13 Another scheme that could be used by law enforcement to collect and compile information in India is the Unique Identification project. The project aims to provide all residents of India with an identification number based off of their biometrics. It is envisioned that the number will eventually become ubiquitous throughout society, and individuals will use the number to access benefits, identify themselves to the police, apply for a passport, and open a bank account.14 These regimes raise again the question: What is the Indian State’s interest in having and connecting identifying, storable, and trackable information of innocent individuals within its borders?

Taken together, the Bill permits the creation of a database comprised of DNA samples and profiles that are unrelated to solving a crime (including continued on page 28 GeneWatch 23

Presumed Innocent? The Confused State of U.S. DNA Collection Laws How does DNA collection from individuals presumed innocent not constitute unreasonable search and seizure? By Michael Risher In 2009, two of our nation’s largest criminal-justice systems—the federal government’s and California’s—began a massive new program of seizing DNA from individuals who had not been convicted of any crime, without a search warrant or any judicial oversight. The synchronous timing was mere coincidence, but the effect has been that a number of courts are now examining the constitutionality of the practice and reaching conflicting conclusions. This article will summarize the history of constitutional challenges to warrantless DNA seizure and the current litigation dealing with this contentious and rapidly evolving issue.

History The Fourth Amendment to the U.S Constitution prohibits “unreasonable” searches and seizures. This generally means that the government must obtain a search warrant before it conducts a search, (although there are many exceptions to this warrant requirement). When laws were first

24 GeneWatch

enacted that required persons who had been convicted of serious crimes to provide a DNA sample for analysis and inclusion in CODIS they were immediately challenged in court on the grounds that the mandatory extraction and analysis of their DNA constituted a search (just as, courts had held, did mandatory drug testing), and that the government should therefore have to obtain a warrant to do it. The courts universally—and quite properly—accepted the first part of this argument, holding that DNA sampling implicated both the physical integrity of the body and personal privacy and is therefore a search. But the courts were initially split on the question of whether this meant that the government needed a warrant. Some judges believed that because DNA contains so much personal information a warrant should be required; others believed that the fact of a criminal conviction reduced a person’s privacy interest so much that it was reasonable to insist that convicted felons provide DNA samples without a warrant. After all, a

person serving a prison sentence has essentially no privacy rights; even a person who is granted probation or is released from prison onto parole has vastly reduced privacy rights and must allow the police to search his or her house without a warrant or even a reason to suspect any wrongdoing.

The latter view eventually won out, and every appellate court to consider the issue has held (often over strongly worded dissents) that the government may require people convicted of felonies to provide DNA samples for inclusion in CODIS. Mandatory DNA collection from persons who have been arrested but not convicted presents a very different question, and appellate courts have reached different opinions about its legality. People who have merely been arrested because a single police officer has reason to believe they may have committed a crime have much stronger privacy rights than have people who have been convicted of a felony following a trial or a guilty plea; and the government’s interest in collecting DNA from people who may

August-September 2011

well be innocent is much less than it is in taking DNA from convicted murderers and rapists.

The first two appellate decisions on the question were decided in 2006 and 2007 but reached conflicting conclusions. The Minnesota Court of Appeals held that forcing arrestees to provide DNA samples violated the Fourth Amendment, while the Supreme Court of Virginia held that it did not.1 Also in 2007, a federal trial court held that arrestee testing violated the Fourth Amendment in an opinion that the court did not even publish. Then, in May 2009, an Arizona state trial court ruled that a law requiring minors to provide a DNA sample upon arrest violated the Fourth Amendment.2 The federal and California laws brought a new wave of litigation over the practice, again with varying results. The first two cases were federal prosecutions in which a criminal defendant was ordered to provide a DNA sample as a condition of being released on bail pending trial, as required by a recently amended federal law. In May 2009 a federal judge in California upheld the statute in United States v. Pool; six months later, in United States v. Mitchell, a federal judge in Pennsylvania came to the opposite conclusion, holding that the law’s requirements violated the Fourth Amendment’s prohibitions against unreasonable searches and

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seizures.

The losing side in each case took an appeal to the United States Court of Appeals in San Francisco and Philadelphia, respectively. The way these two appellate courts treated the cases in itself illustrates how seriously the courts are taking this issue. In general, the United States Court of Appeals uses three-judge panels to hear and decide cases; in very rare cases the court may decide that the whole court (or a larger panel) will rehear a case that was already heard by one of these panels, a procedure known as rehearing en banc.3 In Mitchell, the court apparently thought that the issue was so significant that the entire court decided to hear the case without even allowing a three-judge panel to decide the matter, something that has rarely if ever occurred before. As discussed below, in July 2011 a slim majority of the court upheld the DNA collection.4 And in Pool, after the initial panel upheld collection in a 2-1 decision, the Ninth Circuit also decided to rehear the case en banc.5 Meanwhile, other courts were hearing challenges to California’s law, which requires that anybody arrested on suspicion of a felony—which can include simple drug possession, knowingly writing a bad check, or entering a store planning to shoplift a pack of gum—provide a sample, regardless of whether they are ever even charged with a crime. This law

affects a huge number of people; some 300,000 people are arrested in California every year on suspicion of a felony, and approximately 100,000 of them are never convicted of anything. The first of these challenges is a civil class action challenge to the law brought by the ACLU of Northern California. The named plaintiffs in the suit were all arrested for felonies—three of them at political demonstrations, and one when he tried to return camera equipment that had been stolen from the federal government. Three of them were never even charged with a crime, and one of the demonstrators was charged but the case was dismissed. But all four were forced to provide DNA samples simply because of the arrest. They asked the federal district court in San Francisco to issue a preliminary injunction to stop the state from taking DNA samples from arrestees without obtaining a search warrant, but the court refused to do so.6 That case is now on appeal to the Ninth Circuit, the same court that is considering the Pool case. It is impossible to know when the court will issue its opinion in either case.

At the same time, Californians who had refused to provide a sample upon arrest were being prosecuted in state court; one of them went to trial, was convicted, and took an appeal. And in August 2011, the California Court of Appeals in People v. Buza7 held that

GeneWatch 25

California’s arrestee-testing law violated the Fourth Amendment.

The Mitchell and Buza Appellate Opinions Thus, within the space of a few weeks, two appellate courts reached very different conclusions about the constitutionality of mandatory DNA sampling. Although the cases’ holdings are technically not in conflict— Mitchell upheld taking DNA from a person only after a grand jury had already issued an indictment, whereas Buza dealt with people who had only been arrested—the opinions take starkly contrasting approaches to the broader issue of when the government can force a presumptively innocent person to provide a DNA sample without a warrant.

The Mitchell majority (9 of 14 judges) first acknowledged that DNA sampling and analysis constituted two separate searches for the purposes of the Fourth Amendment, searches that violate the Fourth Amendment unless they are reasonable. It also acknowledged that our DNA contains a huge amount of personal information; but it then discounted the seriousness of the intrusion that these searches caused, for two different reasons. As to the initial sampling, it reasoned that the physical intrusion was minor, less than the intrusion caused by a blood draw or mandatory urinalysis for example, both of which have been described by the Supreme Court as being only minimally intrusive. As to genetic privacy, the court opined that people who provide samples have little to worry about: federal law prohibits the government from using the samples for anything other than criminal-identification purposes, and the profile that is generated by the DNA analysis involves only a small portion of “junk” DNA, which contains little private information. On the other side of the balance the court held that the government has a strong interest in 26 GeneWatch

identifying arrestees, a concept that the court said could include not just knowing who it had arrested but also whether he or she has committed any uncharged crimes. The court believed that just as the police take fingerprints from people they have arrested and then use those prints not just to identify who they have but also to see whether those prints have been found at the scenes of unsolved crimes, so they should be able to use DNA for both of those same purposes.

The Buza court took a very different view, one that displayed a much clearer understanding of how the government is using DNA and how that may threaten privacy. First, the court rejected the analogy to fingerprinting, both because fingerprints contain none of the personal information that our DNA does (most courts hold that fingerprinting is not even a search for Fourth Amendment purposes) and because fingerprinting of arrestees had become a routine part of our criminal-justice system long before the courts started taking the Fourth Amendment rights of arrestees seriously (and, the court might have added, long before computerized databases made it possible to use fingerprints in the way that DNA is now being used). It also properly rejected the government’s assertion that the police are using arrestee DNA sampling to identify arrestees— meaning to determine who they have arrested—the law requires that the police identify an arrestee (through fingerprints) before they even take a DNA sample, and since the state takes about a month to process an arrestee’s DNA sample it could not even use a sample for identification purposes. Instead, as the Buza court made clear, the only reason the government is taking DNA from arrestees is to try to implicate them in uncharged crimes. And although solving crime is certainly a legitimate governmental interest, the courts have long

made clear that, outside of emergency situations, the Fourth Amendment prohibits the police from conducting mass, warrantless searches just on the hope that they will uncover evidence of a crime.

The Future As opinions by intermediate appellate courts, both the Buza and Mitchell opinions will not be the last word on this topic. Since Buza struck down a statute, the California Supreme Court may well decide to take up the case, and the issue of whether the Fourth Amendment allows the government to seize DNA from all arrestees will almost certainly end up in the U.S. Supreme Court within the next few years. It is impossible to predict how the issue will ultimately be resolved. But one thing is clear: courts looking at the issue of when the government should be allowed to seize, analyze, and stockpile our genetic blueprint should do so based on a clear and complete understanding of the interests involved on both sides, rather than relying on assumptions about DNA databanks or unsupported claims that it is or is not useful for particular purposes. This will require that they take a hard look at the privacy interests involved, the efficacy of taking DNA from all arrestees rather than waiting for the criminal justice system to sort out who is guilty and who is not, and also why the government is taking DNA from arrestees.

A decision that will have such an impact on the genetic privacy of so many Americans must be made based on evidence and science, not on speculation and mere assertions.8 nnn Michael Risher, JD, is an attorney at ACLU of Northern California.

August-September 2011

Can a DNA Dragnet Undermine an Investigation?

A Canadian investigation gone awry raises the question: are DNA dragnets necessarily good policing? By Micheal Vonn The 2007 conviction of notorious serial killer Robert William Pickton did not see the end of the decadeslong story of murdered and missing women in British Columbia. The police investigation into reported disappearances of women from Vancouver’s Downtown Eastside has been widely criticized and is now the subject of a controversy-plagued public inquiry. Meanwhile, women and girls continue to disappear in Northern BC along Highway 16, dubbed the “Highway of Tears.”

Earlier this year the Royal Canadian Mounted Police (RCMP) in Prince George collected approximately 600 “volunteer” DNA samples from taxi drivers, on the theory that a Prince

Volume 24 Number 5

George cabbie might be one of the last people to have contact with one of the missing women. On the basis of reports, it does not appear that the decision to seek voluntary DNA samples from taxi drivers was particularly well-considered. A contact at Emerald Taxi, who spoke to the media on condition of anonymity, put it this way: “At that time someone said a cab driver might know something, so they called us all in for an interview, and then said ‘Oh, how about a DNA sample too?’ which was a surprise.”

The surprise requests came with the unsurprising DNA dragnet catch-22: the drivers could “volunteer” their DNA or immediately find themselves on the list of suspects. As

one driver said, “They made it sound like if I didn’t, that could cause problems.” Taxi company managers and drivers told the media that many of the drivers initially refused to submit a sample, and many initially told the RCMP that they would not provide a sample without a warrant; but threatened with becoming a suspect, most capitulated.

News outlets across the country covered the DNA dragnet story and the BC Civil Liberties Association (BCCLA) was asked to comment on the “privacy issues”—specifically, to comment on whether there were any privacy issues given that the RCMP had promised the samples would be destroyed after the volunteer-suspects had been “eliminated.” But what started out as a conversation about the national DNA data bank system and relevant legislation quickly turned to questions about whether the choice to employ a DNA dragnet could be a tactical blunder for the investigation. The anger of the cab drivers, not least because members of the public had started to voice fears about taking taxis because the police focus on the taxi companies obviously meant that one of the drivers was a serial killer, could only mean that the police were effectively alienating the very people that they were hoping would have useful information for them. In deciding to coerce the drivers into providing DNA samples, the police might be effectively shutting the door on precisely the community cooperation they need for the investigation.

There are at least eighteen disappearances that have occurred along GeneWatch 27

the highway that cuts through Prince George, which is the urban centre of Northern BC. It is impossible that members of the community don’t have information that could prove valuable to these investigations. But the RCMP in general and the Prince George police in particular are suffering from a deep distrust by members of the public. In 2002 a provincial court judge in Prince George was convicted of sexually assaulting underage aboriginal girls in the community. A number of allegations were also made against local RCMP officers by the girls involved and their social workers but no charges were ever laid and the code of conduct investigations into the allegations against ten RCMP officers were mysteriously allowed to exceed the limitation period without resolution. The police accountability scandals have continued ever since with RCMP finding no wrongdoing in their members repeatedly Tasering a ‘hog-tied’ prisoner who subsequently died, refusing to impose internal discipline on an officer convicted of

causing bodily harm for an assault that broke bones in the victim’s face, and failing to reprimand officers who were found by a Provincial Court to have destroyed or concealed cell block surveillance footage of an incident in which a man held in jail said he was Tasered by the RCMP more than 20 times. When the BCCLA conducted a public forum on policing in Prince George in the summer of 2010, participants reported a lack of trust in the police. As one participant said, “It’s hard to tell your kids to trust the RCMP when you have a hard time trusting them.”

To date, the DNA sweep through the Prince George cabbies has generated no reported investigative leads and a great deal of anger at the perceived aggression of the police. We don’t know yet what will prove to be the critical pieces of information and evidence that solve these cases. But especially in a context where the relations between the police and the community are already fraught, it is important to consider how distrust

that is exacerbated by a controversial dragnet is going to affect the ability of people to come forward with information. How much small town policing, or big town policing for that matter, is reliant on a relationship of trust between the police and the community? How terribly old-fashioned and no-tech that sounds. Certainly in the Pickton murders many members of the community had critical information and many who came forward were not listened to. It’s possible that what unlocks the cases along the Highway of Tears will have more to do with listening to members of the community than profiling their DNA. In fact, it may prove that a DNA dragnet, in some cases a forensic tool, could also prove a liability in an investigation. nnn

agencies. One solution is to mandate that all DNA samples taken from persons who are not prosecuted (i.e., victims, witnesses, and others) be destroyed. Another solution, as suggested above, is that databases be segregated by purpose—missing persons, health alerts, convicted felons, and so on— and that DNA not be permitted to be transmitted across databases.

Over the past century, the collection of citizen data has become an essential aspect of governance. Current systems have become intrinsically dependent on the collection and analysis of information and citizen informatics. Governments have rationalized the collection of massive amounts of citizens’ data for

reasons such as effectively delivering public services, ensuring equity, and maintaining justice. These databases function off of the notion that “bigger is better” and look to collate as much data as possible. Because the way in which a citizen’s information is stored, controlled, and used by the government defines the state-citizen relationship, the collection of genetic data raises important questions of privacy, civil liberties, and protection.

nnn

Micheal Vonn is a lawyer and Policy Director of the British Columbia Civil Liberties Association.

continued from page 23 the “ identification of victims of: accidents, disasters or missing persons or for such other purposes”), which could be used for intelligence gathering and other forms of surveillance, not just for investigation of the specific crime for which the sample was taken.

Conclusion In sum, although collecting DNA from victims and volunteers may be useful during the investigation of a crime, the DNA profiles obtained from persons who are not accused of and prosecuted for a crime are now being collected and stored in ways that opens the data to use—and possible abuse—for other purposes and by other 28 GeneWatch

Elonnai Hickok is a Policy and Advocacy Associate for the Centre for Internet and Society. Find more of her writing at privacyindia.org.

August-September 2011

Forensic DNA, the Liberator An

interview with

Peter Neufeld, Co-director

The Innocence Project is a U.S.-based organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system. Peter Neufeld co-founded the Innocence Project with Barry Scheck in 1992.

GeneWatch: What role do forensic DNA databases play in the Innocence Project’s work?

Peter Neufeld: They play an interesting role. There are occasions where we get a DNA test result on a material piece of evidence from a crime scene which would exclude our client, but prosecutors still resist motions to vacate the conviction. In some of those cases, what then tipped the balance in our favor was that the profile of the unknown individual [whose DNA was found at the crime scene] was run through a convicted offender database and a hit was secured. Once we were able to identify the source of the semen or the blood as somebody who had a criminal record and who had no explanation for his DNA being there, we were then able to secure the vacation of the conviction for our client.

GW: Many of the proponents of the expansion of forensic DNA databases have pointed to the usefulness of DNA as a tool for exonerating those who have been wrongly convicted, and some actually use the Volume 24 Number 5

and co-founder of the Innocence

Innocence Project’s work as an argument in favor of expanding forensic databases. Would you endorse that?

PN: I wouldn’t do a blanket endorsement. I think what we have to do in all these situations is weight the advantages and downsides, and it depends on the expansion. For instance, expanding the database to other convicted felons, for instance, is a reasonable tradeoff because the people have been convicted of a felony.

We would not be in favor of expanding the database to arrestees.

We certainly would not be in favor of the kind of gray-area databases that have been established, for instance throughout New York, where local medical examiners’ offices or crime laboratories create their own databases outside the state system—which includes profiles of people who volunteered to give DNA so they could be excluded [from an investigation].

Project

Those people should not be included in databases, but expanding it to other felons seems like a reasonable compromise.

GW: What about familial searching—running evidence from a crime scene against a database and looking for near-matches that could be family members of the source? What kind of a role do you see that playing?

PN: There hasn’t been a lot of familial searching—yet. There has been a lot of talk about it. The Innocence Project itself does not have a position at this time on familial searching. I can tell you that personally, I’m very worried about it. I see it as a further encroachment on privacy and civil liberties, and with very little bang for the buck.

There’s another issue we have to think about which is just over the hilltop: namely, these phenotype profiles that the FBI is trying to develop. Let’s say there’s blood found at a crime scene and they don’t get a hit in the database, but they can determine through looking at a whole bunch of markers that there’s a higher probability that the source of the blood has blond hair, for instance, or has blue eyes, or some other physical attribute. Then they will try to use this information to focus on a particular subpopulation in the community. That is something Peter Neufeld (left) and Barry Scheck founded the that could be extremely Innocence Project in 1992. Photo: Innocence Project GeneWatch 29

dangerous and which people should be vigilant about.

GW: It sounds like something that could lead to more people being wrongly convicted.

PN: Well, not necessarily convicted, but we certainly will see a situation where lots of completely innocent people will be harassed by police. They could be stalked, they could have their reputations compromised; all kinds of things could happen. For instance, there was a serial murder investigation in Louisiana where certain people declined to have their DNA profiled. The prosecution went to court to seek an order [to obtain their DNA], their names and addresses were put in local newspapers, and they were the object of all kinds of rumors. They turned out to be completely innocent, but that’s what happened.

There are all those kinds of problems lurking out there, and people have a tendency not to take them seriously enough, thinking, “Well, it’s all about public safety, no one has anything to fear.” When folks get lackadaisical like that, that’s when there can be terrible adverse consequences for the whole community.

it takes a CODIS hit to carry the day.

Actually, in some cases even a CODIS hit isn’t enough. We have two cases right now in Illinois, for instance, one where five kids confessed and one where three kids confessed, 19 and 16 years ago. In those two cases, we’ve identified the real perpetrator through DNA typing, and nonetheless the prosecutors are taking the absurd position that the confessions are reliable, all these kids are guilty, and in one case the convicted rapist, who is 25 years older than the 14-year old girl who was killed, happened to be a necrophiliac. So once you start seeing those kinds of really offensive inculpatory attempts to explain away

Let’s get one thing straight, though: There’s no question that there would be fewer wrongful convictions if there was a universal DNA databank.

GW: In proving someone’s innocence, particularly someone who has already been convicted, how essential is it to locate the perpetrator?

the DNA exclusion, you realize that CODIS hits are going to be very, very useful—although not always conclusive. They may be conclusive in the eyes of the public and rational thinking people, but they’re not necessarily conclusive in the eyes of a recalcitrant prosecutor.

PN: Well, you know, it shouldn’t be.

When there’s a rape of a 90-year old woman and semen is recovered, the fact that our client is excluded [on the basis of the DNA evidence] should be enough; but lately we’ve seen an uptick in prosecutors who are doing everything they can to fight a DNA exclusion, which is a presumptive proof of innocence. In some of those cases,

GW: One of the reasons I asked that question is that when people argue that forensic DNA databases should be expanded in order to help exonerate people who were wrongly convicted, it seems that argument often has less to do with the work that the Innocence Project does than just saying, “The way we will help people who have been wrongly convicted is by finding

30 GeneWatch

the actual perpetrator.” So I was wondering: Is that even enough in itself?

PN: It’s not just that. You’re right in the sense that the quantum of evidence that I would deem sufficient to exonerate somebody may be less than what a prosecutor will require before he throws in the towel. Unfortunately, there are a number of judges who will be very deferential to the assertions and absurd speculative theories of certain prosecutors, for a variety of political reasons. We simply have to be aware of that, and we have to be able to respond. Our response takes two different directions: One, we will try to generate additional proof of innocence wherever possible, and sometimes that entails trying to identify the real perpetrator. At the same time, we will shine a bright light on the kind of absurd speculations of prosecutors trying to defend a conviction that should be immediately overturned.

Let’s get one thing straight, though: There’s no question that there would be fewer wrongful convictions if there was a universal DNA databank. The reason we don’t have a universal DNA databank is that probably a majority of the population is strongly opposed to it for privacy and civil liberties reasons—not unjustifiably. Consequently, since there isn’t a critical mass to support that kind of police action, the police are trying to do what they can to generate databases of more vulnerable populations.

If you create an arrestee database, there’s going to be a disproportionate number of people of color in that database. They may not have the same clout, electorally speaking, as upper middle class white people who don’t want to have their DNA on file. nnn

August-September 2011

Why DNA Is Not Enough DNA evidence has helped to exonerate scores of wrongfully imprisoned people, but a system that depends too heavily on DNA testing to protect the innocent is a failed system. By Elizabeth Webster After 27 years of wrongful imprisonment, Thomas Haynesworth was released in March on his 46th birthday at the request of Virginia Governor Robert McDonnell. The Virginia Attorney General and two of the Commonwealth’s attorneys support his exoneration. So why is the Innocence Project still fighting to prove his innocence?

Haynesworth’s troubles began in early 1984, when a serial rapist began terrorizing women in Richmond, Virginia. Police apprehended Haynesworth, an 18-year-old with no criminal record, after one of the victims spotted him on the street and identified him as her attacker. His photo was shown to victims of similar crimes. Ultimately, five victims identified him.

Haynesworth protested, saying that he was innocent, but the eyewitness evidence compelled the juries.

Haynesworth was convicted of two rapes and one attempted robbery and abduction. “I thought they were going to see that they made a mistake and correct it,” he says. “It’s been 27 years, and I’m still waiting.”

Haynesworth was sentenced to 74 years in prison, which might have been the end of the story, if not for a lab technician named Mary Jane Burton. While Virginia courts and police agencies routinely lost or destroyed evidence, Burton took the extraordinary effort of saving cotton swabs and other evidence samples in her notebooks. Had Burton followed lab policy and returned all of the samples Volume 24 Number 5

The DNA testing cleared Haynesworth in one of the rape convictions.

Moreover, the Department of Forensic Science matched the sperm sample to the genetic profile of a convicted rapist named Leon Davis. DNA testing on a second rape that Haynesworth was charged with, but not convicted of, also cleared Haynesworth and pointed to Davis. Biological evidence from Haynesworth’s other two convictions, however, does not exist. In one of the convictions, documents show that evidence was destroyed. There never was any biological evidence available in the other conviction.

Profile of a Perpetrator

to the investigating agencies, all evidence in these cases would have been gone forever. The blood type testing, or serology, that Burton performed was not nearly as probative as DNA testing would later become.

The Innocence Project and others pushed for a review of Burton’s case files. In response, then Virginia Gov. Warner launched a massive DNA review of convictions. Burton died in 1999 and never learned of the tremendous impact of her work; so far six wrongfully convicted Virginians were proven innocent because of her practice of preserving evidence.

The review also led to DNA tests in Haynesworth’s case.

Davis was suspected of committing at least a dozen rapes in Richmond and Henrico County in 1984, and he is currently serving multiple life sentences for those crimes. Davis and Haynesworth lived in the same neighborhood; they resembled each other and were sometimes mistaken for each other.

In Haynesworth’s first letter to the Innocence Project in 2005, he writes: “There is an inmate named Leon Davis who is in prison for some of the same things I’m charged with, and he was living down the street from me in Richmond, Virginia….I will bet my life this is the man who committed these crimes….Just get my DNA tested, and you will see I’m innocent of these crimes.”

All of the crimes were perpetrated within the same one-mile radius and all shared the same modus operandi.

GeneWatch 31

If DNA testing proved that Davis committed two of the crimes, it follows logically that he committed them all.

Haynesworth now waits for a hearing with the Virginia Court of Appeals. Until then he is on parole and is a registered sex offender. He leaves his mother’s house only to report to his job as an office technician with the Office of the Virginia Attorney General, Ken Cuccinnelli. Without a writ of innocence or a pardon, Haynesworth cannot be cleared.

Accepting DNA’s Limitations In 1992, the newly founded Innocence Project began taking cases from prisoners with claims of innocence whose cases were suitable for postconviction DNA testing. By 2000, 67 people had been exonerated, and the organization was swamped with letters from prisoners seeking assistance. This trend has not slowed in 19 years. Today the organization receives over 3,000 letters a year and nearly 300 people have been exonerated.

Yet the total number of wrongful convictions surely surpasses this.

Many wrongfully convicted prisoners have no DNA evidence to test. Over 20% of the cases closed by the Innocence Project since 2004 were closed because evidence had been lost or destroyed. Despite diligent searching, there just isn’t a Mary Jane Burton in every state. Evidence preservation laws have become more commonplace, but many jurisdictions, even major metropolitan areas, still have hopelessly outdated paper-based systems.

If DNA evidence had existed in all three of Haynesworth’s convictions, it could easily have proven his innocence of those crimes. In a sexual assault case in which a single 32 GeneWatch

perpetrator attacks a stranger, and consent is not an issue, the results are easily interpreted. When a real perpetrator, like Leon Davis, can be identified through a DNA database hit, it not only exonerates the innocent but also solves the crime.

As it stands, investigators and attorneys had to look carefully at the pattern of crimes in Haynesworth’s cases to see if they were likely committed by the same perpetrator. Such cases have resulted in exoneration before. But what about those cases that are not suitable for DNA testing at all?

Very few cases involve physical evidence that could be subjected to DNA testing, even among violent crimes.

Unlike any other type of evidence,

DNA illuminates the flaws in the criminal justice system; it does not eliminate them.

DNA testing can conclusively prove innocence (or guilt) to an unprecedented degree of scientific certainty.

But a system that depends on DNA testing alone to protect the innocent is a failed system. DNA illuminates the flaws in the criminal justice system; it does not eliminate them.

Those flaws include eyewitness misidentification; improper use of the forensic sciences or reliance on outdated or invalidated forensic methods; false confessions, admissions, and even guilty pleas; jailhouse informant testimony, and more. Simple, cost-effective reforms—improving police lineup procedures, for example, or mandating that all interrogations be recorded—can reduce the rate of wrongful convictions, and by extension, assist in the apprehension of real perpetrators. Some states have

been slow to adopt these reforms.

Before DNA exonerations became common, criminal justice professionals struggled to understand the implications of the technology. DNA testing trumps all other types of evidence— whether it’s a witness who swears that he could never forget a face, a co-defendants’ confession, or a hair analyst who claims to have a match. Admitting that the system has devastated an innocent person’s life is never easy. The only way to truly reconcile the loss is to learn from the wrongful conviction and make sure it never happens again.

The Innocence Project continues to advocate for Haynesworth’s exoneration on the remaining two cases.

With the complete support of law enforcement in Virginia we hope that day comes soon. When it does, there will be those who say that the criminal justice system works. They will celebrate the power of DNA to find justice. But 27 years of wrongful imprisonment is not justice, and DNA cannot erase those years. While Haynesworth was behind bars, the true perpetrator continued to commit brutal crimes; additional women were harmed. DNA cannot erase what happened to those crime victims. But if the criminal justice system learns from these errors and continues to adopt reforms that will prevent future injustice, then DNA can be rightfully thanked for leading the way. nnn Elizabeth Webster is Publications Manager at the Innocence Project.

August-September 2011

CRG Leads Successful Campaign to Enact Landmark Genetic Nondiscrimination Law

By Jeremy Gruber

For over 25 years, the Council for Responsible Genetics has advocated for strong genetic nondiscrimination and privacy protections for all Americans.

CRG first coined the term “genetic discrimination” and collected hundreds of examples of and performed some of the first case studies on it. CRG helped develop the first model legislation on genetic discrimination, and I was a leader of the successful effort to enact the federal Genetic Information Nondiscrimination Act (GINA) and many of the state laws that preceded it.

Nevertheless, current law is limited in its coverage; there simply is no comprehensive genetic privacy law in this country. As strong as GINA is, it only covers genetic discrimination and privacy in the areas of health insurance and employment. Most state “GINA’s” are similarly limited.

That is why the Council for Responsible Genetics worked closely with California State Senator Alex Padilla to introduce, support and pass SB 559, the California Genetic Information Nondiscrimination Act (CalGINA), historic legislation to protect against unfair genetic discrimination. By setting clear limitations on the use of personal genetic information in a variety of contexts unforeseen just a short time ago, including housing, education, life insurance, mortgage lending and elections, this new law represents an important step forward in ensuring that the genetic Volume 24 Number 5

information of Californians is protected from misuse.

As Senator Padilla noted: This law enhances the civil rights of every Californian … Discrimination on the basis of genetic information is no less offensive than discrimination based on race, gender, or sexual orientation. California has a compelling interest in promoting and fostering the medical promise of genomics while relieving the fear of discrimination by strengthening laws to prevent it.

Ten years after the mapping of the human genome was completed, the genetic revolution has led to a tsunami of DNA data created by genetics research and the commercialization of such research. As more and more of this personal information becomes public knowledge, it can be bought and sold by any commercial interests interested in predictive information about an individual’s future health status. The public must be assured that undergoing genetic testing will not endanger their economic security. Consider the case of Lawrence-Berkeley Laboratories, which for almost three decades gave its employees medical

examinations that included tests for syphilis, sickle cell genetic markers and pregnancy without their knowledge. Such systematic violations of the expectations of people whose personal health information is being used without their consent are just wrong. This is a violation of basic human rights. Indeed, a recent survey by Cogent Research found that 71% of all Americans are concerned about access to and use of their personal genetic information.

The effort to pass the federal Genetic Information Nondiscrimination Act began as a series of campaigns to pass state legislation. By the time GINA was signed into law most states had laws, however limited, protecting against genetic discrimination and upholding privacy principles. It was this pressure for a strong federal standard that helped shepherd GINA into law. Once again the Council for Responsible Genetics is going back to the state level, building on the strong foundation of GINA and working to ensure that genetic information is protected against misuse. California is an important first victory in this campaign. nnn Jeremy Gruber, JD, is President of the Council for Responsible Genetics.

GeneWatch 33

Gene Patents v The Common Good An

interview with

ACLU

attorney

The American Civil Liberties Union and Public Patent Foundation have led the case against Myriad Genetics, owner of patents on the crucial BRCA breast cancer genes. The landmark case could determine the future of gene patents in the U.S. After an initial ruling against Myriad’s patents, a Federal Circuit court issued its ruling on Myriad’s appeal on July 29.

Sandra Park, JD, is an attorney at the ACLU Women’s Rights Project.

GeneWatch: What What did the court say?

happened?

Sandra Park: The Federal Circuit decided three main legal issues in its opinion from July.

The first issue is whether the plaintiffs had standing to bring the case.

The court found that there was standing, and they specifically found that our plaintiff, Dr. Harry Ostrer, had standing, so the case was allowed to move forward.

One of the other issues that all three judges agreed upon was the issue of whether the method claims that we had challenged were valid. The District Court had found that they were invalid because they covered abstract ideas and the Federal Circuit agreed as to all but one of the claims.

They found that the method claims in effect were on the mental process of comparing two genetic sequences, and so were invalid as embodying abstract ideas.

The biggest issue where there was disagreement on the court had to do with the patentability of isolated DNA claims. There, two of the judges reversed the District Court and found that isolated DNA is patentable 34 GeneWatch

Sandra Park

subject matter. The judges disagreed in terms of the reasoning for why they found that.

Judge Lourie found that isolated DNA is patentable because in his mind, the chemical structure of isolated DNA is different from naturally occurring DNA based on the breaking of covalent bonds. He was very much focused on the chemical structure of isolated DNA and what he perceived to be chemical structural differences.

Judge Moore took a very different approach. She looked at both structure and at function. She suggested that because full length genes—even if isolated and removed from the cell— would not have a markedly different function from naturally occurring genes, she would consider whether or not they are actually patentable.

She said: “If I were deciding this case on a blank canvas, I might conclude that an isolated DNA sequence that includes most or all of a gene is not patentable subject matter. Despite the literal chemical difference, the isolated full length gene does not clearly have a new utility and appears to simply serve the same ends devised by nature.”

She recognized that the patent claims that we challenged cover full length isolated genes and that their function does not differ significantly from their function in nature. However, she then went on to find that the Patent Office had a longstanding practice of granting these patents and she was reluctant to disturb what the Patent Office had been doing.

The third judge, Judge Bryson, wrote a dissent where he talked about how both the structure and the function of isolated DNA are not markedly different from natural occurring

DNA. One of his main arguments was that the majority’s focus on the breaking of a covalent bond is not rooted in law. There is no precedent from either the Federal Circuit or Supreme Court that elevates the breaking of a chemical bond to the point that that alone can justify finding that something is not a product of nature. He also talks about his concern that these kinds of patents would preempt new technologies like whole genome sequencing.

GW: It sounds like one of the things that it came down to was a reluctance to be the one who changes the practice of the Patent Office.

SP: I think that that certainly motivated Judge Moore. She wrote at length about the Patent Office’s practices here.

I think that Judge Bryson talks a lot about how in this situation—as in many situations—they should not defer to the Patent Office’s judgment about what is patentable subject matter because the Patent Office lacks rule making authority. When a federal agency does have this authority, courts often will defer to these agencies; but the Federal Circuit has been consistent in finding that the Patent Office does not have substantial rule making authority. And Judge Bryson also talked about the utility guidelines that the Patent Office had issued that provided the basis on which they August-September 2011

issued these gene patents.

He concluded that the Patent Office’s discussion of whether isolated DNA is patentable subject matter was perfunctory. It really wasn’t an in depth discussion, which is the kind of analysis you look at in determining whether to defer to an agency.

He also noted that in Diamond v. Chakrabarty, the 1980 case, the Patent Office found that the microorganisms subject to the patent were not subject patentable matter, yet the Supreme Court didn’t defer to their decision in any way and instead found that these microorganisms were subject patentable matter.

We’ve also pointed to statistics that once patents are challenged in court, courts have found them invalid about 40% of the time.

That is an extremely high reversal rate.

GW: What’s the significance of the part of the District Court’s decision that was upheld, the method claims?

For example, this doesn’t mean that someone can start offering their own BRCA tests without running afoul of Myriad’s patents?

SP: Exactly. You might have thought they could, so long as they are not isolating the BRCA DNA, because there are methods where you may not have to isolate the DNA as it has traditionally been done but you can still get the sequence. The problem is that the majority opinion is all about the breaking of covalent bonds, so even with these testing methods that do not rely solely on isolating DNA in the way that it’s traditionally been done, there is still a breaking of covalent bonds that occurs, so that continues to be a barrier, Volume 24 Number 5

even with the newer technologies.

Myriad’s patents still stand in the way of anyone who wants to do BRCA genetic testing.

GW: Is there anything in particular that surprised you about the decision?

SP: One thing we found surprising was the focus of the decision on the breaking of covalent bonds—an argument that Myriad never brought to the fore. It was something the court really generated itself, and it also generated its own scientific findings. This is one of the reasons we petitioned for a panel rehearing.

I think if you read Judge Lourie’s opinion, he understands that geneticists do not think of DNA in the way that he’s thinking about it, but that he is deciding to apply a chemistry approach nonetheless. That really departs from the language of the patent claims themselves, which talk about DNA as encoding for a protein. The definition of DNA in the patent claims relies on genetics, not chemistry.

The other troubling part is that we

never really had a chance to brief the issue of breaking of covalent bonds, because Myriad had never relied on that argument in its own support.

That’s something that we raised in the petition for panel rehearing.

GW: Both sides asked for panel rehearing, and both were denied by the court. What reasoning did the court give?

SP: The court simply denied the petitions for panel rehearing, without explaining its reasoning. Courts usually do not give explanations for such denials.

GW: What’s the next step? Are you preparing an appeal to the Supreme Court?

SP: We are considering our options. If we move forward, the next step would be to seek review from the Supreme Court, but a final decision has not yet been made. nnn

GeneWatch 35

Race and the Genetic Revolution

Science, Myth, and Culture

Edited by Sheldon Krimsky and Kathleen Sloan

“I can hardly wait for this book to begin circulation. It should be read and taught as widely as possible.” —Adolph Reed, Jr., University of Pennsylvania Divided into six major categories, the collection begins with the historical origins and current uses of the concept of “race” in science. It follows with an analysis of the role of race in DNA databanks and its reflection of racial disparities in the criminal justice system. Essays then consider the rise of recreational genetics in the form of for-profit testing of genetic ancestry and the introduction of racialized medicine, specifically through an FDA-approved heart drug called BiDil, marketed to African American men.

Concluding sections discuss the contradictions between our scientific and cultural understandings of race and the continuing significance of race in educational and criminal justice policy, not to mention the ongoing project of a society that has no use for racial stereotypes.

SHELDON KRIMSKY is professor of urban and environmental policy and planning and adjunct professor of public health and community medicine at Tufts University. He is the author of Science in the Private Interest: Has the Lure of Profit Corrupted Biomedical Research?

KATHLEEN SLOAN is a human rights advocate specializing in global feminism. She has run nonprofit organizations for more than twenty years and has directed communications and public relations functions for multinational corporations and nonprofits.

CO LU M B I A U NIVE R S ITY PRE S S Tel: 800-343-4499 Fax: 800-351-5073 cup.columbia.edu 36 GeneWatch

$35.00 / £24.00 paper 978-0-231-15697-4 $105.00 / £72.50 cloth 978-0-231-15696-7 304 pages, 1 line drawings, 4 tables A PROJECT OF THE COUNCIL FOR RESPONSIBLE GENETICS

“Novel and forward thinking, this book will be a valuable addition to a literature that needs to be brought up to speed.” —David Rosner, Columbia University and Mailman School of Public Health

ORDER ONLINE AND SAVE 30% To order online: www.cup.columbia.edu Enter Code: RACKR for 30% discount Race and the Genetic Revolution Edited by Krimsky Sloan (304 pages) paper ISBN 978-0-231-15697-4 regular price $35.00, now $24.50 Regular shipping and handling costs apply.

August-September 2011

Rooted Resistance: Indian Farmers Stand Against Monsanto As India’s national government takes extraordinary measures to foist genetically modified seeds on farmers, those farmers—and the public—are fighting back.

By Mira Shiva In 2002, Bt Cotton became India’s first genetically modified crop when the country’s Genetic Engineering Approval Committee approved three varieties developed by Maharashtra Hybrid Seed Company Limited (Mahyco) in collaboration with Monsanto. Genes from Bacillus thuringiensis, a naturally occurring bacterium, were introduced along with an antibiotic resistant marker gene and cauliflower mosaic virus gene to enhance expression of the Bt gene.

Monsanto and Mahyco (of which Monsanto owns a 26% stake) made tremendous profits while hiking up the price of cotton seeds to over 500 times what farmers used to pay, from Rs. 7/kg to Rs. 3600/kg ($0.14/kg to $74/kg). Nearly half of this came from royalty payments. The companies were collecting around 10 billion rupees (over $200 million) per year in royalty payments from Indian farmers before the government of Andhra Pradesh, a state in southeast India, sued Monsanto, leading to a cap on the price of cotton seeds.

Andhra Pradesh saw problems beyond seed prices. Farmers who had commonly grazed their animals on cotton fields after harvest reported losing 25% of the sheep that grazed on leftover Bt cotton plants. In 2006, shepherds in the village of Ippagudem lost 651 of their 2,601 sheep; in the village of Valeru, they lost 549 of 2,168.1 The corporations and authorities denied any connection to the animal deaths.

They also denied any connection to the rash of farmer suicides in India.

Since the introduction of Bt cotton, tens of thousands of farmers have committed suicide—17,368 in 2009 alone.2 A disproportionate number of those farmers were cultivators of Bt cotton who had incurred enormous debt linked to high costs of seeds, as well as the fertilizers and pesticides promoted by Monsanto and Mahyco as a necessity in order to grow the new cotton varieties. Vastly increased costs of production, high interest rates for credit, and low cotton prices have created unprecedented levels of debt for Indian cotton farmers. With the indebtedness came humiliation for proud farmers who have for generations managed life and work with dignity; driving farmers to find any way out. For some, this has meant selling a kidney; for many others, suicide.

Cotton farmers have little choice but to grow Bt varieties. As non-Bt seeds have been systematically made

unavailable, 95% of the cotton being cultivated in India now comes from Bt seeds. Through licensing arrangements with seed companies across India’s cotton belt, Mahyco has ensured that seed dealers sell only Bt cotton seeds.

Next up: food crops While Bt cotton is now entrenched in India, Monsanto and Mahyco have set their sights on what would be the first genetically modified food crop in India, Bt brinjal. Brinjal (known elsewhere as eggplant or aubergine) was first cultivated in India, and today there are 4,000 different varieties in the country, each linked with different regional recipes. The crop is not in short supply, so Monsanto and Mahyco’s introduction of Bt brinjal was seen with much concern.

It was thanks to the outcry at public hearings that the Indian government

Mahyco-Monsanto advertisement

Volume 24 Number 5

GeneWatch 37

placed a hold on Bt brinjal approval.

Serious concerns have been raised about Mahyco’s biosafety studies on its Bt brinjal. The trials centered around rat feeding studies lasting a mere 90 days. The study stopped at one generation, neglecting to assess effects on fertility and progeny. Nevertheless, the Genetic Engineering Approval Committee quickly decided to approve the crop. The GEAC’s enthusiasm for genetically modified crops was not limited to Bt brinjal; in one meeting, it cleared 10 different food crops for 91 field trials.3 Other genetically modified food crops lined up for trials in India include papaya, cauliflower, potatoes, tomatoes, corn, groundnuts, mustard, cabbage and pigeon peas. GM rice trials were planned in Chattisgarh, home of the country’s richest biodiversity of rice varieties, but were stalled by the regional government following protests.

Federal push for GMOs Protests and actions against the

unhindered commercialization of genetically modified crops have come from public outcry and local governments. In the federal government, India’s biotechnology regulators are, to say the least, corporate-friendly. A bill currently awaiting passage in the parliament, the Biotechnology Regulatory Authority of India Bill, not only creates a new agency (the Biotechnology Regulatory Authority of India) with more leeway to speedily approve GMOs, but also imposes fines and even jail sentences for those who mislead the public about the safety of GMOs. This provision was targeted not at biotech companies—as one might think—but at the opponents of genetically modified crops.

In 2004, India announced a new Seed Bill making ‘unregistered seeds’ illegal. While ostensibly protecting farmers against unscrupulous seed dealers, the act does not provide any new protections or compensations for farmers, aside from punishments for those selling unregistered seeds.

Rather, it threatens small farmers’ way of life, making it illegal for them to sell their own seeds to each other, although they have saved and shared their seeds for generations.

The Act sells farmers out under the guise of protecting them. Its main beneficiaries are private seed companies, transnational corporations in particular. In other words, it is exactly what one has come to expect of the biotechnology interest in Indian government. nnn

(Part 2 of this article appeared in the May 2003 issue of The Champion.)

4. Harlan Levy, “Caught Up in DNA’s Growing Web,” New York Times (op ed), March 17, 2006.

5. Carole McCartney, “The DNA Expansion Programme and Criminal Investigation,” British Journal of Criminology, October 25, 2005 [Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD)].

6. Adam Liptak, “Justices Rule Lab Analysts Must Testify on Results,” New York Times, June 26, 2009.

7. See William C. Thompson, et al., “Evaluating Forensic Evidence: Essential Elements of a Competent Defense Review,” The Champion, April 2003.

(Part 2 of this article appeared in the May 2003 issue of The Champion.)

8. Melendez-Diaz v. Massachusetts, 557 U.S. _____ (2009)

Govt-planning-to-have-citizensDNA-database-Malik 2. National Database Registration Authority www.nadra.gov.pk 3. Pakistan Has World’s Largest Biometric Citizen Database http://www.nadra. gov.pk/index.php?option=com_co ntent&view=article&id=142:pakis tan-has-worlds-largest-biometriccitizen-database&catid=10:newsa-updates&Itemid=20 4. Govt planning to have citizens’ DNA database http://www.nation. com.pk/pakistan-news-newspaperdaily-english-online/Politics/08Apr-2010/Govt-planning-to-havecitizens-DNA-database-Malik 5. http://www.thenews.com.pk/ NewsDetail.aspx?ID=15943 6. http://www.pakistantoday.com. pk/2011/06/pns-attackers-wereforeigners-dna-report-reveals/ 7. http://www.nation.com.pk/ pakistan-news-newspaper-dailyenglish-online/Regional/Lahore/12Jan-2011/Worlds-second-largestforensic-lab-set-up-in-City\

Dr. Mira Shiva, MD, is a medical doctor and public health activist in India. She has tackled issues of health care access, misuse of medicines, and medical technology for the past 30 years. Dr. Shiva is Director of the Initiative for Health, Equity & Society and is affiliated with Doctors for Food and Biosafety, Task Force on Safety of Food and Medicine, and numerous other public health organizations.

Endnotes Jeremy Gruber, p. 4 1. Cuomo Seeks Genetic Data of Offenders, The New York Times 1992.

2. http://www.fbi.gov/about-us/lab/ codis/ (accessed August 20,2011).

3. Please see CRG’s Guide to Forensic DNA Databases at http://www.councilforresponsiblegenetics.org/dnadata 4. Resolution No AGN/67/RES/8.

5.http://www.interpol.int/Public/ Forensic/dna/default.asp (accessed August 21, 2011).

Robert Perry, p. 7 1. The video can be viewed at http:// www.lvrj.com/news/dna-relatederror-led-to-wrongful-convictionin-2001-case-125160484.html 2. See Willliam C. Thompson, “Tarnish on the ‘Gold Standard’: Recent Problems in Forensic DNA Testing,” The Champion, January/February 2006.

3. See William C. Thompson, et al., “Evaluating Forensic Evidence: Essential Elements of a Competent Defense Review,” The Champion, April 2003.

38 GeneWatch

Bytes for All, Pakistan, p 14 1. http://www.nation.com.pk/ pakistan-news-newspaper-dailyenglish-online/Politics/08-Apr-2010/

August-September 2011

8. http://www.geneticsandsociety. org/article.php?id=5150

Helena Machado, p. 20 1. Lei 5/2008, 12 February. Aprova a Criação de uma Base de Dados de Perfis de ADN para Fins de Identificação Civil e Criminal [Approves the Creation of a DNA Profiles Database for Civil and Criminal Investigation Purposes].

[Online: Diário da República Electrónico].

Available at: http://dre.pt/pdf1sdip/2008/02/03000/0096200968.pdf [accessed: 31 January 2011] [in Portuguese].

2. Nuffield Council on Bioethics 2007. The Forensic Use of Bioinformation: Ethical Issues [Online: Nuffield Council On Bioethics]. Available at: http://www.nuffieldbioethics.org/fileLibrary/pdf/The_forensic_use_of_bioinformation_-_ethical_issues.pdf [accessed: 22 August 2011].

3. Decree 175/2011. Diário da República, 28 April, Series I, 82, 2468-74.

Available at: http://dre.pt/pdfgratis/2011/04/08200.pdf [accessed: 22 August 2011] [in Portuguese].

4. Lei Orgánica 10/2007 de 8 de Outubro - Reguladora de la Base de Datos Policial Sobre Identificadores Obtenidos a Partir del ADN [Regulator of the Police Database About Identifiers Obtained From DNA]. Boletín Oficial del Estado, 242, 9 octubre 2007, 40969-72.

Available at: http://www.boe.es/boe/ dias/2007/10/09/pdfs/A40969-40972.pdf [accessed: 22 August 2011] [in Spanish].

5. Marcelino, V. 2011. Base de dados da PSP está ilegal [PSP’s database is illegal]. Diário de Notícias [Online, 06 February] Available at: http:// www.dn.pt/inicio/portugal/interior. aspx?content_id=1776871&page=-1 [accessed: 22 August 2011] [in Portuguese].

6. Fontes, L. 2011. Lei ameaça dois mil registos de ADN que a PJ recolheu [Law threatens two thousand DNA records that the PJ collected]. Diário de Notícias [Online, 6 May] Available at: http://www.dn.pt/inicio/portugal/ interior.aspx?content_id=1749615 [accessed: 22 August 2011 2011].

7. Machado, H. et al. 2011. Stained Bodies: Prisoners’ Perceptions of the DNA Database for Criminal Investigation Purposes and their Perspectives of Social Reintegration. [Online: Centro de Estudos Sociais]. Available at: http:// dnadatabase.ces.uc.pt/list_documents. php [accessed: 22 August 2011].

8. The research for this article was supported by the Foundation for Science and Technology (Portuguese Ministry of Education and Science)

Volume 24 Number 5

through a post-doctoral fellowship (SFRH/BPD/34143/2006) and the project “Forensic DNA databasing in Portugal: Contemporary issues in ethics, practices and policy” (FCOMP-01-0124-FEDER-009231).

Elonnai Hickok, p. 22 1. The Prisoners Identification Bill was most recently amended 1981 2. http://lawcommissionofindia. nic.in/51-100/report87.pdf 3. Adhikary, Jyotirmoy. DNA Technology in Administration of Justice. Lexis Nexis. 2007 pg. 259 4. Privacy Bill 2011 Chpt. VI 5. Schedule of offences 5) Miscarriage or therapeutic abortion, b. Unnatural offenses, 7) Other criminal offenses b.

Prostitution 9) Mass disaster b) Civil (purpose of civil cases) c. Identification purpose 10) b) Civil:1) Paternity dispute 2) Marital dispute 3) Infidelity 4) Affiliation c) Personal Identification 1) Living 2) Dead 3) Tissue Remains d) 2 (xxvii) “offender” means a person who has been convicted of or is under trial charged with a specified offense; 2(1) (vii) “crime scene index” means an index of DNA profiles derived from forensic material found: (a) at any place (whether within or outside India) where a specified offense was, or is reasonably suspected of having been, committed; or (b) on or within the body of the victim, or a person reasonably suspected of being a victim, of an offense.

6. Section 13(xxii) allows this list to be expanded by the DNA board.

7. Simoncelli Tania, Krimsky Sheldon.

A New Era of DNA Colletions: At What Cost to Civil Liberties?.

American Constitution Society for Law and Policy. 2007. pg.8 8. Section 35 9. Section 13(x), Section(2) The DNA Profiling Board may, by a general or special order in writing, also form committees of the members and delegate to them the powers and functions of the Board as may be specified by the regulations.

10. Simoncelli Tania, Krimsky Sheldon.

A New Era of DNA Collections: At What Cost to Civil Liberties?.

American Constitution Society for Law and Policy. 2007. pg.15 11. http://www.telegraphindia. com/1110707/jsp/northeast/ story_14204831.jsp, http://dfs.gov.in/ CFSLHyderabad/laboratorycfslhyderabad.htm, http://www.dnaindia.com/ mumbai/report_mumbai-gets-it-svery-first-state-of-the-art-forensic-

lab_1066370; http://articles.timesofindia.indiatimes.com/2010-09-15/ science/28230130_1_dna-databasedna-index-system-forensic-scientists 12. Unravelling NATGRID. Software Freedom Law Center. Retrieved from http://softwarefreedom.in/index. php?option=com_content&view=a rticle&id=90%3Aunravelling-natgr id&catid=53%3Atalish&Item27 13. http://www.dnaindia.com/india/report_ rs-2000-crore-national-terrorist-tracking-system-to-roll-out-today_1582245 14. The Unique Identification Bill 2010 www.uidai.org

Michael Risher, p. 24 1. Anderson v. Commonwealth of Virginia, 274 Va. 469 (2007); In re Welfare of C.T.L., 722 N.W.2d 484, (Minn.App. 2006).

2. In the Matter of Bojorquez , (Pima Cnty.

Juvenile Ct. No. 168544-04). An Arizona appellate court is currently considering the issue in a separate set of cases consolidated under the name Mario W. v. Kaipio, No. 1CA-SA 11-0016.

3. From the French for “in the bench,” referring to the full bench of judges.

4. United States v. Mitchell, --- F.3d ----, 2011 WL 3086952 (3rd Cir. Jul. 25, 2011).

5. On September 19, 2011, shortly before this article was published, the Ninth Circuit dismissed the Pool appeal, because Mr. Pool had plead guilty to a lesser charge and the case therefore no longer presented the question of whether the government could force a person merely accused of a crime to provide a DNA sample. The court vacated all the prior opinions in this case, as is standard when a case becomes moot on appeal.

6. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009).

7. People v. Buza 197 Cal.App.4th 1424 (Cal.App. 2011).

8. For a more detailed legal analysis of the issue, see Risher, Warrantless Collection of DNA From People Merely Accused of a Crime Raises Not Only Privacy Concerns But Also Questions About Efficacy, 88 Criminal Law Reporter 320 (Bureau of Ntl. Affairs 2010).

Mira Shiva, p 37 1 http://www.i-sis.org.uk/MDSGBTC.php 2 http://www.thehindu.com/ opinion/columns/sainath/article995824.ece?homepage=true 3 http://articles.timesofindia.indiatimes. com/2010-02-06/india/28128712_1_btbrinjal-public-consultations-food-crop/2

GeneWatch 39

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