Ontario’s privacy commissioner has issued a list of guidelines for police’s use of DNA to track down criminals using a method called investigative genetic genealogy.
The commissioner, Patricia Kosseim, said the tracking down of suspects through DNA and hereditary research raises privacy and human rights concerns. She has offered a list of 12 guidelines, called “guardrails,” that police forces can use to guide the process until legislation catches up.
Investigative genetic genealogy (IGG) is a method police forces use that involves collecting DNA from a crime scene and then using it to track down family members with the DNA, until they are able to narrow it down to the suspect. It’s a practice that is sometimes used when there are no DNA matches in the national DNA bank.
One practice includes using private sector DNA banks such as ancestry research organizations, some of which provide access to police without a warrant or subpoena.
Another practice, called the DNA surveillance tactic, is a way police gather DNA information from unsuspecting individuals by sampling drinking cups or chewing gum that have been discarded.
However, Kosseim said that provincial regulations and policies are needed to ensure the DNA information of innocent individuals is not misused and that there is a consistency of practice for IGG use in police investigations.
“It is important that when novel techniques are integrated into policing practice that the privacy and human rights implications are well understood and that the appropriate risk mitigations be identified and implemented up front,” she wrote in a 24-page report titled “Guardrails for Police Use of Investigative Genetic Genealogy in Ontario” released on June 24.
‘Guardrails’
In the report, Kosseim outlines 12 guardrails that police forces can use when conducting IGG investigations.They include requiring police to presume people have an expectation of privacy of their DNA, that IGG should only be used for serious crimes and when other investigative approaches have failed, and that police should conduct privacy impact analysis before using IGG. She also recommends developing a privacy training program for police who may use IGG in their work.
Kosseim also advises that agreements between law enforcement and third parties, such as overseas labs that analysis DNA, should have terms and conditions that stem from laws and best practices of Ontario police. These include privacy and security requirements, guidelines for collection, use, and retention of personal information, and destruction requirements.
The commissioner also recommends not using IGG when other “less intrusive” methods are available. In her report, she also says caution needs to be taken to minimize the use of DNA information, advising that law enforcement not use DNA information to determine medical conditions of a suspect or related information that is outside of the “lawful authority” of police.
There was also a concern that DNA and related information was being collected and kept by police forces, and Kosseim said there needed to be policies that DNA and related information are not kept for longer than is required for an investigation or court case.
The report also recommended that safeguards are put in place for the “security, integrity, and confidentiality of records.”
Kosseim also advises limiting the use of surreptitious DNA collection, requiring that police should limit the use of DNA collection through surreptitious methods unless they have “reasonable grounds” to suspect the individual they are collecting from is connected to a serious criminal offence under investigation. She also said that DNA collected in this way should be destroyed “without delay” if forensic analysis finds the DNA crime scene sample is not from the individual who had DNA samples collected secretly during the investigation.
“Any electronic access to the DNA results of those eliminated from the focus of the investigation should also be permanently removed,” Kosseim wrote.
She also suggests that police be “open and transparent” with the public about the use of IGG, including how the information is collected and kept, and when they destroy it. Law enforcement can do this by making policies and practices available on police force websites.
She also suggests law enforcement release statistics about police use of IGG, such as how many cases were considered for the practice, how many investigations used IGG, and the number of people who had DNA collected.
Police must also put a process in place to allow members of the public to access their personal DNA records and make correction requests for any incorrect information. There also needs to be a process to address privacy complaints, she wrote.
Law enforcement agencies should also include an element of public consultation in IGG use, Kosseim said in the report.
“Police and their supervisory authorities should conduct meaningful public consultations with affected communities, equity-seeking groups, and interested parties before launching an IGG pilot project or program, and anytime significant changes are made to the program.”
A final concern listed in the report is that police need to have guidelines when communicating with relatives who become drawn into the investigation through DNA collection so that “sensitive personal information about a family member” is not disclosed.
The commissioner also recommended three additional measures for police to consider, including the development of a province-wide, independent advisory committee for IGG use, a requirement to use Ontario-based labs for analysis, and that law enforcement hold transparent meetings with indigenous groups and other “equity-seeking” groups to discuss privacy and human rights issues from different perspectives.
