Michael Seringhaus, a student at Yale Law School, had an op-ed in the New York Times that bugged the heck out of me. He advocates for a national DNA database, as President Obama appeared to support during his appearance on John Walsh’s America’s Most Wanted television gameshow.
In truth, however, this is an issue where both sides are partly right. The president was correct in saying that we need a more robust DNA database, available to law enforcement in every state, to “continue to tighten the grip around folks who have perpetrated these crimes.” But critics have a point that genetic police work, like the sampling of arrestees, is fraught with bias. A better solution: to keep every American’s DNA profile on file.
Like many others, I have my laundry list of reasons why this is a bad idea at the ready. But Seringhaus didn’t come unprepared.
Your sensitive genetic information would be safe. A DNA profile distills a person’s complex genomic information down to a set of 26 numerical values, each characterizing the length of a certain repeated sequence of “junk” DNA that differs from person to person. Although these genetic differences are biologically meaningless — they don’t correlate with any observable characteristics — tabulating the number of repeats creates a unique identifier, a DNA “fingerprint.”
The genetic privacy risk from such profiling is virtually nil, because these records include none of the health and biological data present in one’s genome as a whole. Aside from the ability in some cases to determine whether two individuals are closely related, DNA profiles have nothing sensitive to disclose.
Is this true? If the DNA database was limited to genetic profiles, would it eliminate all personal information risks and limit the information to which the government has access to matching the identity of a person? Seriously, I don’t know.
My problem is that if Seringhaus is correct, then my arguments against the creation of a nationwide DNA database fail. Sure, there’s the genetic Big Brother position, but we’ve already lost that battle with social security numbers and the wealth of other information we regularly provide the government about ourselves in order to keep the monster well fed and happy.
There is no right to commit a crime and demand that the government not be able to identify the criminal. We leave our DNA all over the place, so it’s not like we’re giving up some deep, dark, personal secret. If the information in the government’s hands does no more than provide a basis for personal identification, without giving up the private aspects of our being contained in our DNA, then I’m having some difficulty in finding a decent argument against this. It’s not that I’m for it, but in arguing against it, am I shooting blanks?
This doesn’t alter the flaws that otherwise exist with DNA identification, from partial or decayed DNA to the grossly exaggerated claims of one in a trillion chance of it being wrong when the real number is more like one in twelve. But these, as courts love to say, go to weight and sufficiency.
What am I missing here? If there’s a flaw, I’m not seeing it. And I want to.
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The most obvious, paranoid argument is how to be sure that the DNA sample is “limited to generating a DNA profile only, and afterward the sample would be destroyed.” and that “Access to the DNA database would remain limited to law enforcement officers investigating serious crimes.”
At what point does my personal being stop becoming part of a database? As an American citizen, do I have the right to say no to inclusion in this database? If I have committed no crime, then why should I be included? Not everyone in this country has fingerprints on file somewhere. At some point, major privacy issues are involved that will need to be resolved. Remember those scary words? “i’m from the government and I’m here to help.
Perhaps I’m blase about this because I was first fingerprinted in 2nd grade, when a rash of child abductions swept through Detroit.
Or perhaps because my career was one in which the government’s collecting my DNA was in order to facilitate identifying the body fragments that would result from my office’s being bombed by terrorists (not a trivial threat considering that my offices were in the Middle East for the most part).
But keeping a pure profile (not the complete sequencing) does strike me as fairly innocuous. As pointed out in a comment above, I’m leaving my DNA around, ubiquitously and all the time.
It is true that the bits of DNA used in DNA Fingerprinting have no known biological relevance but there’s still plenty of reason to oppose a national database.
For one, a fairly shocking percentage of children are not the child of the father they think they are. It’s debatable whether lives would be improved if this information began leaking out.
Additionally, DNA is most useful for confirmation when police have already developed a list of suspects. It’s unintuitive, but with a national database, the odds of a sample randomly matching are quite high. See: http://en.wikipedia.org/wiki/Prosecutor's_fallacy
The Context Effect and various other DNA sampling issues have been the subject of numerous posts here. But these go to weight, not harm cause by maintaining a database.
Well, there’s always a slippery slope argument- if 26 points provide good evidence, wouldn’t 27 be even better?
Eventually, and quicker thanks to Moore’s Law, you might as well keep the whole genome just in case you need it.
There’s a question in my mind of what you would do if future genetics research discovers that one of the 26 data points they’re using as evidence actually determines your sexual preferences or something. Murphy’s Law suggests this is more likely than not.
That goes to the standard “the government can’t be trusted” argument.
Sir, possible flaws or side effects in the Seringhaus plan is the future false arrests attributed to ‘throw down’ dna and the subsequent exonerations of the wrongfully convicted. Followed by the Immigration Status Hold of today becoming the DNA Status Hold of forever. This is a true double edge sword with catch-22 engraved.
If rogue cops & the roguest ADAs had access to everyone’s DNA, all they would have to do is tell the Grand Juries “it’s a match” and if you’re on probation and/or not wealthy, then it is off to plea bargainsville.
*Chances are good that they probably already are implementing this in the guise of breath & blood samples. Thanks.
Excellent thought, throw down DNA. As for the rogue perspective, they could do the same today, claiming a match when it was untrue, and it would only be revealed upon defense testing. But the throwdown DNA is quite an interesting concept.
Good call on the presumption of “defense testing. Currently, only those with money can afford the services of a good defense that includes: re-testing, looking at the actual evidence, & reading police reports.
The De-Bunking of test results could be a boom for the CDL & Testing Industries. Unemployed attorneys of the future could intern or contract out as entry-level Exhibit/Evidence Re-Testers. This service alone could sustain a business while teaching & certifying these EERT’s could be very profitable. The truly not guilty defendants will gladly pay especially when the competition forces the cost down. Maybe aggressive re-testing would deter the bad boys.
I should have no problem moving my line of (Leave No DNA Behind) accessories & (Where I Was On________) certificates. Thanks for the idea.
(Bearing in mind I’m a Scot) Would the fifth amendment beat a DNA database?
As everyone knows, one advantage of extensive DNA sampling (and increased use of DNA sampling at crime scenes) is that it has resulted in the exoneration of numerous innocent people, sometimes many years after the conviction. As I prosecutor, I once had the joy of signing a stipulation to factual innocence of one defendant several years after he was convicted. It was personally rewarding for a number of reasons, not the least of which is that I was one of the few people in my office while the case was pending who felt there was insufficient evidence to proceed.
The media portrays this as a benefit of DNA testing in the narrow sense – i.e., a benefit to the inmate exonerated. But the broader benefit of these exonerations is that it is causing the public (including some members of law enforcement) to question the reliability of eyewitness identification. Additionally, in a broad sense, frequent mention of DNA cases in the media causes may cause jurors to demand a greater degree of certainty than prosecutors are used to presenting. (“Ladies and gentlemen, the prosecutor wants you to believe my client knew about the baggie of cocaine under the seat in the car he was renting? Then why didn’t they do a simple DNA test to prove it to you?”)
I’m not so naive as to think the increased DNA testing will solve the problem of unjust convictions, but it has already done so more than anything else in my lifetime.
No self incrimination, especially if gathered before the crime.
And, as is my wont, the negative side: While this goes to the general validity of DNA rather than the particular problem with a national database, the credence given magic evidence like DNA for matching offsets the benefit for excluding, probably by a good ways. The more ubiquitous DNA use becomes, the harder it will be to fight an erroneous charge, since everyone knows DNA is perfect, wonderful, can never be wrong and take all the pain out of being a juror.
It seems to me that the flaw is in the sample. Unless I’m mistaken, the only way to get the junk DNA to make the profile is to have the full DNA sample, which would include all the private genetic information. So at the time of sampling, the government has completely violated your genetic privacy.
Seringhaus implies that the full genome would be discarded, and only the profile maintained. Which would be bad enough, but it also seems to me that the full sample would be maintained for further sampling and certainty. The database would just be organized according to the profile. Which means that in the event of a breach of some kind, you might not be able to search the hypothetical DNA database for all members of members with a certain gene, but you could select a person and have access to everything about them.
There’s a huge flaw in the eager beaver law student’s assumption: that so called “junk” DNA is meaningless.
(Google “New Findings Challenge Established Views on Human Genome”)
So you set up a National DNA database that has thousands of users and points of access. It’s compromised, and the information is leaked. What if the “junk” DNA codes for proclivity for violence? Proclivity to commit a sex offense?
Furthermore, I don’t quite buy rationale that, because we leave DNA everywhere, it is okay for the government to demand a sample. I would personally find this analogous to garbage: while the government is welcome to search your abandoned garbage, without a proper warrant, they could not demand that I gather up all the garbage in my house and present it to them for inspection. Furthermore, if I wanted to dispose of my garbage in a legal manner that dissolved all identifying characteristics, there is nothing they could do to stop me. Similarly, I invite the government to vacuum the outside of my car for skin flakes, but would hope I would be free from compulsion to provide them a sample.
I think you may be on to something with your doubts as to whether junk is “junk”. We remain at the relative infancy of DNA comprehension, and today’s DNA junk, a mere DNA profile, may well prove to contain substantial amounts of personal information, whether proclivity to be antisocial or to get cancer. I don’t know, but I doubt science is sufficiently certain to preclude that possibility either.
Aside from trusting the government, which few around here are inclined to do, and aside from placing a low priority on helping law enforcement to “get” people, particularly at the expense of personal freedoms and privacy, this is the sort of idea that provides a harder reason to challenge the idea. I don’t know enough about DNA to say, but does our “eager beaver?”
I just completed drafting a statute for an assembly man in NY regarding the planting of DNA evidence. I am told it is currently being looked at in Albany.
I tried to make the same point – though perhaps less artfully, and certainly with less actual information. But to repeat it here, even if the tested loci are, based on what we know today, purely meaningless junk loci, it’s far from clear that we won’t discover in the future that they really do tell us significant things about the person.
The hubris in the assumption that our current understanding is complete is breathtaking, but no more so than the naivete that allows Seringhaus to assert with perfect good faith (and perhaps flawlessly blow-dried hair) that the Government can be trusted to successfully destroy every one of 300 million plus DNA samples because it said it would.
“I don’t know enough about DNA to say, but does our “eager beaver?””
Generally, yes. I did my PhD and a short post-doc in a biochemistry & genomics laboratory, and moreover have presented on the technical aspects of the DNA profiles to a good number of people in the field, including my old lab. Scientists truly disfavor the term “junk DNA” and it pains me to roll it out again — since there really is no such thing — but at a point it’s the only way to convey to the public the reality that of themselves, tallying up these STR repeats is biologically meaningless. Note, STR counts may one day — especially in large enough number — be found to CORRELATE with other traits, but that’s a data mining inquiry, and I’m talking specifically about the profiled information itself. I maintain, with what I feel to be solid support, that STR counts BY THEMSELVES have nothing sensitive to disclose.
Regarding the database, the larger point here is that when you can’t control access (we leave samples everywhere) we should instead regulate USE, and this means in part identifying certain acceptable uses with which we are satisfied, and prohibiting others. Forensic DNA profiling, to me, is acceptable if properly restricted. Others will disagree. Hence the excitement of the op-ed page.
You may find it interesting to note that in researching and writing the longer academic article of which this op-ed is a very short snapshot, I began with the same approach that SHG manifests above — namely, the assumption that this solution couldn’t possibly be correct. But upon longer thinking, I was able to find no truly convincing reason why not, and from that point proceeded to think about it a little differently. The exercise is more to get me (and anyone who reads it) to challenge traditional offender-only databasing, and also to think seriously about how we should deal with the realities of genomic privacy in the near future.
Thanks all for your interesting comments here. And I do not blow-dry my hair. If I did, of course, Mr. Gamso is right in noting that it must surely impede my argument and credibility. No doubt at all.
I suspected you did, and hence my original question. This is one of the reasons why the background of the source of information matters, since “law student” really doesn’t do much.
The question about whether subsequent discovery reveals that the STR counts provide more significant information is a real one, and I would hestitate to slough it off as mere data mining later. When the government has a particular individual in mind, finds a match and then uses it to attribute either characteristic or other information (based on whatever science later determines them to provide), we’re very much back to the issue of privacy.
Whether science can assure that STR counts can never invade privacy, or can assure that the government database will be limited only to STR counts when they’ve got the whole magillah on hand (they hate to throw stuff out when it might prove useful later) remain to be seen, but I found your op-ed very provocative and raised a very interesting possibility. Well done.
Thanks. Your concern over data mining is, I think, entirely justified. But the big area of concern there for me right now is government “fusion centers” (currently in operation!), the massive centralized data aggregators and integrators that churn online/personal data for predictive purposes. Now that to me seems much more shady, and it’s happening now.
With DNA, the government (or law enforcement, to use the terms interchangeably for a moment) has been surprisingly restrained in my opinion. As a scientist I was actually shocked to learn how much of the genome they do NOT use, given that it is conceptually possible (based on a crime scene sample) to work up a basic phenotypic profile containing (now or soon) such info as height, eye color, race, and so forth. Crime labs emphatically do not do this, and use the sample ONLY for this very basic use of identifying exact individual-to-individual matches in a database. In so doing they ignore the true power of the genome, but this is a good thing. Perhaps it’s for this reason that I’m more ready to believe that they will not glean other DNA information from the sample — they already don’t. I also found the folks at the state crime lab to be conscientious and sensible scientists, for what it’s worth — certainly not greedy Orwellian types. But I do agree that they shouldn’t use full genomic DNA in law enforcement, hence my note about sample destruction — wishful thinking as it may be.
You ask: “If the DNA database was limited to genetic profiles, would it eliminate all personal information risks and limit the information to which the government has access to matching the identity of a person?” [Warning this is a long post split in two]
I’ll try and answer this question. Firstly, though, may I express some surprise (or even shock) at your lack of knowledge in this area. I would have thought that any serious criminal defense lawyer would need to have a basic (that is university 101-course level) of understanding of: the scientific method, genetics, probability and statistics – if only to be able to spot a fallacious argument made by the prosecuting attorney. (In the UK there was the famous case of Sally Clarke who was convicted of murdering her two sons after the prosecutor argued that there was a 1 in 73 million chance of both of them dying of cot death – an argument that could have been demolished by anyone who had done advanced level probability and statistics at high school.) To help close this gap in your knowledge I can thoroughly recommend the MIT Open Courseware “Introduction to Biology” course at: http://ocw.mit.edu/OcwWeb/Biology/7-012Fall-2004/CourseHome/ (The 2004 version of this course is probably the best version of this course). The course is interesting, enjoyable and reasonably accessible to a non-scientist. If time is short then I recommend that, at the very least, you watch the video lectures for Genetics 1-3 and Human Genetics. OK – admonishment over. (I also apologise if the above seems rude, but it is intended in the spirit of constructive criticism.)
Back to the question. Does the use of “junk DNA” mean that personal information is eliminated?” To answer this, some elementary genetics is required. Firstly, the term “junk DNA” is outdated – the term was invented in the 1970s when we had a much lesser understanding of genetics and molecular biology. The term “junk DNA” is now only used by the ignorant or those making an emotive argument. Since we are neither of those things here, let’s use the correct term: “non-coding DNA”. So what does this mean? [Note: my explanations below are somewhat simplified, so are not strictly correct, but they do explain the essence of what is going on]
Genes are expressed by transcription and translation: DNA is transcribed into RNA and then RNA is translated to produce a protein. A gene is a section of DNA that produces a protein. So our genes form the “coding” portion of our DNA, that is the portion of our DNA that gets expressed as proteins. So what does the non-coding DNA do? Initially it was thought that it was useless – evolutionary debris that no longer had any function – hence the term “junk DNA”. However we know know better. Non coding DNA is involved in gene regulation (switching genes on and off) and priming the cell for the production of proteins (so although it doesn’t code for proteins it does effect the quantities of proteins produce). [continued in next post]
I’m deeply saddened to say that I went to college in the dark ages of the ’70s, Martin. The Human Genome Project was not yet a twinkle in Jim Watson’s eye. I know because I asked him.
And now for a secret I’m going to share with you. Regardless of my knowledge of DNA, it’s foolish for a lawyer to pretend to be overly knowledgeable in areas outside his field of expertise. Sure, it’s fun to show off, and that’s why children do it regularly, but one never learns from more knowledgeable people that way. What lawyers do best is to ask a good question to get a good answer. That’s a more important skill for lawyers to possess than being a pretend scientist. And that’s why there are people with real knowledge out there who might be capable of providing a truly good answer, from which we can learn something.
Just to foreclose the gush of scientific revelation here: Of course non-coding DNA has meaning. Plenty of it. But we’re talking here about counting numbers of repeats of STRs at 13 discrete sites. Beyond data mining for broad inheritance-based correlations (probably at very high numbers of profiled STRs, much higher than 13) I don’t see how much can be disclosed from these.
For more information, see this for what STRs are, and how they are distinguished from other non-coding sequence.
In the spirit of completeness, I should also mention that your definition of a gene (“a section of DNA that produces a protein”) is rather unfashionable today as well. See, e.g., my article on the topic in the Nov/Dec 2008 issue of American Scientist, as well as this from CSHLP.
Just as “junk DNA” has fallen into disfavor, the one-gene, one-enzyme hypothesis is showing serious wear.
I’m not suggesting lawyers play scientist (and I’m painfully aware that I’m on thin ice when I venture into the legal realm). What I am suggesting is that, in the modern world, defense lawyers need to know enough of the basics to know when to question an assertion made by the prosecution, or when to go an get expert advice.
[continued from last post] We’ve discovered that the RNA produced by non-coding DNA can take on some of the structural and catalytic functions of proteins (although this is more common in lower animals). Even for those bits of non-coding DNA that have no function, they can be correlated to genetic effects, by virtue of their proximity to genes in the genome.
The fact that a DNA profile is obtained from non-coding DNA is not sufficient to say that it is “biologically meaningless”, or that “it does not correlate with any observable characteristics”.
However, having said all that, a DNA profile is obtained from a particular type of non-coding DNA, a form know as “short tandem repeats” (STRs). There are good theoretical reasons to believe that STRs do not correlate with observable characteristics. (Although, as with any scientific belief, there is the possibility of new discoveries overturning this belief). For the purposes of the argument about a national DNA database, I’m willing to concede that there is no correlation between STRs and physical characteristics.
But just because STRs have no correlation with physical characteristics, that does not mean that there are no privacy implications.
A person’s STR profile can be used to establish their relationships with other individuals. In particular the profile can be used to establish paternity. So a national DNA database could be used to do paternity tests. Now, I’m not a lawyer, but I presume that currently a warrant is required to do a paternity test and that using the DNA database to do a paternity test would constitute an illegal search.
A national DNA database could be trawled in a way that grossly violated privacy. For example it could be trawled to search for women who have had children by men other than their husband. It could be trawled for children who are the progeny of incestuous relationships.
So to answer your question, a national DNA database, by it’s very nature, cannot “limit the information to which the government has access to matching the identity of a person”. By its very nature it contains information about the familial relationships of that person.
As I’ve said, I’m not a lawyer, so I’ll throw the ball back in your court. Can this issue be addressed by adding safeguards to a national DNA database, or is it a fundamental argument against such a database?
MRS – thanks for your comments. Unfortunately the second half of my comment is stuck in moderation. The first part is groundwork for the points made in the second half (the post was split in two to get around the 3000 character limit). When it has been moderated I’d appreciate your further comments.
I’m aware of what STRs are and indeed in the second half of my comment I state “There are good theoretical reasons to believe that STRs do not correlate with observable characteristics.”
I’m also aware that defining a gene as a section of DNA that produces a protein is an oversimplification. I did state in my post that: “my explanations below are somewhat simplified, so are not strictly correct”.
[Ed. Note: Feel free to use up all my bandwidth with your comments. Don’t worry, we’ll make more. ;-)]