23andEveryone: Privacy Concerns with Law Enforcement’s Use of Genealogy Databases to Implicate Relatives in Criminal Investigations

The discovery of DNA typing in the 1980s transformed law enforcement’s ability to exonerate innocent suspects, while implicating those who are guilty, with “the power of a silent biological witness at the crime scene.” This transformation, coupled with the new trend of law enforcement’s use of genealogy databases, has created legal issues that police officers, prosecutors, genealogy companies, and policy makers are all currently trying to navigate. The technological advancement comes with serious ethical and privacy concerns, including fear of the establishment of a “genetic panopticon.” General concern exists that if a “genetic panopticon” comes to fruition, the government can subject any arrestee and future generations of his or her family to permanent control through genetic surveillance. Those who voluntarily upload their DNA to open-access genealogy websites, as well as their relatives, currently suffer encroachments to their reasonable expectations of privacy under the Fourth Amendment when investigative genealogy searches are conducted. Consequently, a statutory framework is necessary to regulate law enforcement’s use of genealogy websites to conduct investigative searches. This framework must strike the proper balance between law enforcement’s use of this new technique to solve serious crimes and people’s constitutionally safeguarded privacy rights. This note therefore proposes that Congress regulate such searches by defining conditions that must be met and procedures that must be followed—similar to those enumerated in New York and Colorado’s regulations for CODIS-based familial searches—before an investigative genealogy search may be run by law enforcement