Fourth Amendment Meets 23andMe (and other Genetic Genealogy sites)

 Is your DNA safe in the hands of 23andMe?

Is your DNA safe in the hands of 23andMe?

If you have been exposed to advertisements in any form over the last year you likely have heard of the company 23andMe. 23andMe collects individuals’ DNA for testing in order to provide genealogy and genetic health information. In light of their success, most ancestry companies now provide similar services (including Ancestry.com, MyHeritage.com, and Family Tree DNA).

These companies now have large databases of DNA that can be used to fill in the holes in criminal DNA databases. Earlier this year, a famous serial killer and rapist was arrested after his identity was discovered through tracking his genealogy. A detective who had been working the case for over 20 years reached out to GEDmatch, a company founded to help amateur and professional genealogists. GEDmatch has a database of over 1 million profiles to search for possible family connections. The detective submitted DNA from the serial killer to GEDmatch and was able to identify several relatives of the killer. From there the detective was able to map out a family tree and determine possible suspects. If you are interested in exactly how this all played out, there was a 60 Minutes special. The focus of this post is the implications this has on individuals’ rights against unlawful searches.

As I’ve written about previously, the US Supreme Court recently ruled that law enforcement officials need a warrant before obtaining cell phone GPS data from third-party providers. In the case of genetic genealogy sites, the DNA is being given voluntarily by citizens who agree to the Terms of Service of those companies. 23andMe for example includes in their terms of service the following caveat: “[Y]ou acknowledge and agree that 23andMe is free to preserve and disclose any and all Personal Information to law enforcement agencies or others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary . . . .” However, is that any different than cell phone GPS data? The data that cell phone providers collect from your cell phone is theoretically given voluntarily through a terms of service agreement.

Do law enforcement agencies need a search warrant to get your DNA evidence from a genealogy website? Without any cases on point currently, the answer to that question depends on the company’s policy. For example, Ancestry.com has reported that it provided a customer’s DNA sample to police in 2014, in compliance with a search warrant. On the other hand, 23andMe has a transparency report that indicates it has not turned over any of its users data despite receiving five such requests from law enforcement. Moreover, 23andMe has gone as far as stating “we use all practical legal and administrative resources to resist such requests.”

Ultimately, the decision to turn over DNA samples to law enforcement officials is one that each company will decide for themselves. Some companies will fight requests, even those supported by search warrants, subpoenas, or court orders, and others may be willing to turn the information over with little more than a formal request. For that reason, it is important to read the “terms of service.”

If the Supreme Court is ever asked to weigh in on the constitutionality of this issue, it likely would not require a search warrant. Although acquiring someone’s DNA is most definitely an issue of privacy, the DNA is provided freely and voluntarily. Furthermore, unlike a cell phone, a genealogy test has not yet become the “pervasive and insistent part of daily life” that the Supreme Court described when analyzing this issue US v. Carpenter.

Serial Podcast Season 3 - A Look Inside the Criminal Justice System

Serial Podcast

If a picture is worth a thousand words, maybe a podcast is worth a few hundred words. When an asked about what I do on a daily basis it can sometimes be hard to explain to someone who is not familiar with the criminal justice system. Well, now I can point people in the direction of a podcast for a few insights in what a day-in-the-life of a criminal defense attorney might be like.

The extremely popular, and award winning, “Serial” podcast, an investigative journalism podcast hosted by Sarah Koenig, is turning its sights on the inner-workings of the criminal justice system. Season 3 is described as a year inside a typical American courthouse.

Only four episodes have aired thus far, but the reception has been resoundingly positive. From the perspective of a criminal defense attorney, the first episode fairly encapsulates what many criminal defense attorneys experience on a day-today basis. The show takes place inside a courthouse in Cleveland, Ohio. However, from what has taken place thus far, it could be any courthouse in America.

For anyone interested in what it is like to practice criminal law, I recommend listening to Season 3 of the Serial podcast.

Tennessee's Lethal Injection Procedure on Trial

 The first drug used in lethal injections.

The first drug used in lethal injections.

A trial began last week in Tennessee that challenges whether the drugs used during executions are an unconstitutional form of cruel and unusual punishment.  More than thirty death-row inmates have filed a lawsuit challenging the new three-drug lethal-injection protocol that was adopted in January.  

Tennessee used to use the drug pentobarbital to carry out executions.  However, the drug became extremely difficult to obtain after pharmaceutical companies began restricting its uses for lethal injections.  As a response to the shortage, Tennessee adopted a three-drug protocol in January that uses midazolam, vecuronium bromide, and potassium chloride.  The challenge to the new protocol focuses on the use of the first drug - midazolam.  

Midazolam is the first drug that inmates are given during the execution process.  The drug is supposed to minimize the pain that inmates feel during the execution.  The issue alleged by Tennessee death-row inmates is that the drug does not do the job it is intended to perform.  The inmates point to botched executions and prisoners writhing in pain during their executions as proof the drug does not work.  

This issue has been examined by the U.S. Supreme Court in Glossip v. Gross.  In Glossip, the Supreme Court found that the use of midazolam did not constitute cruel and unusual punishment because the prisoners had failed to prove its use demonstrated a risk of severe pain.  The Supreme Court also held that prisoners can only challenge their method of execution after providing a known and available alternative method.  In Tennessee, the inmates are suggesting pentobarbital.

How the trial will turn out remains to be seen, but if the Supreme Court ruling is an indication, I anticipate the judge will allow executions to go forward in Tennessee using midazolam.

Carpenter v. United States - Warrants for Cell Location Data

The Supreme Court of United States decided a case today that will now require police officers to obtain a warrant (except in exigent circumstances) before collecting cell phone location data from cell phone companies.  

Prior to this ruling, the government was allowed to collect cell phone data from companies like AT&T and Verizon with a simple request.  This data contained minute-by-minute GPS location data.  Officers then used this data as evidence to try to make a case against suspects.

Chief Justice Roberts wrote, "We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of [this information], its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment."

This ruling is a small victory in the defense of privacy and the 4th Amendment, but from a practical standpoint a search warrant is not a difficult hurdle to overcome.