Do the claims of public safety trump concerns for personal privacy in mandating national and/or international DNA databanks?

1
Do the claims of public safety trump concerns for
personal privacy in mandating national and/or
international DNA databanks?

• Presented by Chris Overall Michael Walsh
• BINF 705 Research Ethics
• 4/17/2007

2
Genetic Profiles

• Although the genome of most humans is 98 similar
  (evolutionary conservation), the non-coding
  regions can be highly variable at various loci
  (less selective pressure).
• Short Tandem Repeats (STRs) are genetic loci
  characterized by contiguous, repeated patterns of
  two or more nucleotides and are typically found
  in the non-coding regions of the genome.
• STRs are heritable units and multiple alleles
  occur naturally in a given population the
  alleles are differentiated by the number of times
  that DNA pattern repeats (length). Everyone has
  these alleles.

3
Genetic Profiles (Cont'd)

• PCR primers can be designed to amplify the STRs
• The amplified STRs can then be separated by a
  technique such as gel electrophoresis to
  determine the number of repeats at the particular
  locus.
• The number of repeats at several STR loci serves
  as a unique identifier (genetic fingerprint) for
  an individual.
• It has been estimated that if 10 STR sites (or
  loci) are tested, the chance of a random match
  between two people is one in a billion.
  (Williamson and Duncan, 2002)
• When DNA is typed, a computer-generated output
  graph displays a series of peaks corresponding to
  the STR alleles. The computer labels the alleles
  based on their length. (Simoncelli and
  Steinhardt, 2006)

4
Genetic Profiles (Cont'd)
http//en.wikipedia.org/wiki/ImageStr_profile.jpg
5
DNA DatabanksDefinitions

• DNA Databank A repository containing the
  personal information, genetic profile, and/or DNA
  sample of individuals typically used for
  forensic analysis, including identification, and
  medical research.
• Criminal DNA Databank A DNA databank of
  criminals used for forensic analysis and
  identification purposes.
• National DNA Databank A DNA databank of various
  citizens of a country can be used for forensic
  or medical purposes these do not necessarily
  include all citizens.
• Universal DNA Databank Same as a national DNA
  databank, but inclusion in the databank is
  mandatory for every citizen.

6
DNA DatabanksSample Collection

• Direct Methods A biological sample is collected
  for profiling from an individual, voluntarily or
  via legal coercion.
• DNA Dragnets A group of individuals matching a
  particular description are invited to submit a
  DNA sample for profiling.
• Indirect Methods Indirect methods of suspect
  sample collection through family members, without
  consent or probable cause, can be used e.g. hair
  from a brush, discarded tissue, etc.

7
National DNA DatabanksUnited Kingdom - NDNAD

• United Kingdom National DNA Database (NDNAD).
  Also known as the UK National Criminal
  Intelligence Database.
• Established in 1995 and is the oldest and largest
  national DNA database in the world.
• Run by the Forensic Science Service (FSS).
• Uses 10 STR loci to uniquely identify
  individuals.
• Although inclusion in the original database was
  limited to convicted criminals and those on
  trial, the criteria have since changed. Now, even
  those who have been arrested are permanently
  included in the database.

8
National DNA DatabanksUnited States CODIS

• The DNA Identification Act (1994) authorized
  the FBI to create and maintain a centralized,
  national DNA databank and software system whereby
  genetic profiles could be easily shared at the
  local, state, and federal levels. Also, to set
  standards for sample collection and profile
  generation.
• The Combined DNA Index System (CODIS) was the
  result of their effort.
• The national database is known as the National
  DNA Index System.

9
National DNA DatabanksUnited States CODIS
(Contd)

• Uses 13 STR loci to uniquely identify
  individuals.
• All 50 state databases are currently connected to
  CODIS.

http//en.wikipedia.org/wiki/ImageCodis_profile.j
pg
10
National DNA DatabanksOthers

• Most European countries
• Iceland and Estonia (research purposes)
• Portugal announced in 2005 that it has plans to
  create a mandatory, population-wide database.

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Abridged History of DNA Databanks

• Early 1990's Earliest statutes passed by U.S.
  states to create DNA Databanks.
• 1994 Congress creates DNA Identification Act,
  authorizing FBI to develop a centralized DNA DB
• 1995 - FSS starts UK DNA database
• 1998 - FBI launches CODIS database
• 1998 All 50 US States have criminal DNA
  databases
• 2004 California passes Proposition 69, The DNA
  Fingerprint, Unsolved Crime, and Innocent
  Protection Act
• 2004 All states connected to CODIS
• 2004 U.S. enacted the Justice For All Act

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Expanding Scope of U.S. State DNA Databanks

• Original databanks were intended to only store
  genetic profiles/samples for convicted sexual
  offenders because of high rate of recidivism and
  because they leave biological evidence.
• Currently, 34 states collect DNA samples from all
  felons, 28 from juvenile offenders, 30 from
  misdemeanors.
• California, Virginia, Texas and Louisiana, to
  varying degrees, require collection of samples
  from suspects/arrestees.

13
California's Proposition 69

• All persons, including juveniles, convicted of
  any felony offense
• All persons, including juveniles, convicted of
  any sex offense, including misdemeanors
• All persons, including juveniles, who are in
  prison, or on probation or parole with a record
  of a past or present conviction of any qualifying
  offense
• All adults arrested for murder or rape
• All adults arrested for any felony offense
  (2009).

14
Expanding Scope of U.S. National DNA Databank

• Originally, the national CODIS database only
  stored the genetic profiles of persons convicted
  of violent crimes and sex offenses.
• States could not upload any profiles to the
  national database that did not meet these
  criteria.
• The Justice For All Act of 2004 greatly
  expanded the amount of profiles that can be
  stored in the national database.
• Changed the definition of federal qualifying
  offense to include any felony. (Simoncelli and
  Steinhardt, 2006)

15
Expanding Scope of U.S. National DNA Databank
(Cont'd)

• Allowed states to begin uploading to CODIS DNA
  profiles from any of the following
• Persons convicted of crimes
• Persons who have been charged in an indictment or
  information with a crime and
• Other persons whose DNA samples are collected
  under applicable legal authorities, provided that
  DNA profiles from arrestees who have not been
  charged in an indictment or information with a
  crime, and DNA samples that are voluntarily
  submitted solely for elimination purposes shall
  not be included in the National DNA Index system.
  (Simoncelli and Steinhardt, 2006)

16
Current Uses of DNA Databanks

• Direct Matching Direct comparison of all loci
  between two genetic profiles
• Matching of a suspect genetic profile with an
  unknown crime scene genetic profile
• Matching of two or more crime scene samples
• Low Stringency Searches Comparison of two
  genetic profiles, using less loci, to identify
  familial relationships.

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Current Uses of DNA Databanks (Cont'd)

• Surname Searches Compare the Y chromosome
  profiles of a suspect sample and a crime scene
  sample. Those individuals having the surname of
  the match are then investigated.
• Health Care Biobank Searches Samples are
  attained from a health care provider, profiled,
  and then searched against one or more crime scene
  sample profiles.

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Current Uses of DNA Databanks (Cont'd)

• DNA Forensic Profiling In addition to a
  fingerprint, the crime scene sample is examined
  for phenotypic traits that are then used to build
  a physical profile.
• Humanitarian
• Identification of unknown remains e.g. soldiers
• Identification of missing persons e.g. babies and
  amnesiacs

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Sources of Error in DNA Databanks

• Genetic profiles are subject to human error,
  although very accurate when done correctly
• Sampling Errors errors in the collection,
  handling and storage of DNA samples
• Analysis Errors Errors associated with the DNA
  analysis itself. Significant ambiguities can
  arise in interpreting the computer-generated
  graph displays produced in DNA testing.

Simoncelli and Steinhardt, 2006
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Sources of Error in DNA Databanks (Cont'd)

• Phenomena that can produce analysis errors
• There is a mixture of two or more DNA sources.
  Which alleles correspond to each sample?
• Unequal amounts of DNA from multiple sources. Is
  one sample masking another?
• Degradation can make a source go undetected.
• Air bubbles and other sources of noise can add
  spurious peaks.
• Reporting Errors Failure to report results of
  DNA tests in their entirety and the reporting of
  misleading or inaccurate statistical information.

Simoncelli and Steinhardt, 2006
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Sources of Error in DNA DatabanksExamples

• In 2002, it was discovered that 26-year-old
  Lazaro Soto Lusson was mistakenly charged with
  multiple felonies because the Las Vegas police
  crime lab switched the labels on two DNA samples.
  (Sampling Error)
• Misinterpretation of DNA test led to the false
  conviction of Timothy Durham in Tulsa, Oklahoma.
  Durham was convicted of raping an 11-year-old
  girl and sentenced to 3,000 years in prison,
  despite having produced eleven alibi witnesses
  who placed him in another state at the time of
  the crime. The misinterpretation resulted from
  the difficulty of separating mixed samples.
  (Analysis Error)

Simoncelli and Steinhardt, 2006
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Sources of Error in DNA DatabanksExamples
(Contd)

• Example of a Reporting Error
• Josiah Sutton was wrongly convicted of rape and
  spent five years in jail before he was
  exonerated.
• Sutton's conviction rested almost entirely on the
  basis of DNA tests performed by Houston Police
  Crime Laboratory.
• Re-analysis of the lab report showed that the lab
  technician had mistakenly reported that Sutton's
  DNA profile was included in the profile of a
  semen sample taken from the back of the car,
  where the rape was committed, when it was not.
• In addition, she presented the DNA data to the
  jury in a misleading way that overstated its
  value, and failed to provide statistical
  estimates that would have demonstrated that
  Sutton's DNA profile was but one of many that
  could have been included in the mixed evidentiary
  samples in the case, including a vaginal sample.

Simoncelli and Steinhardt, 2006
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Working Definition of a Universal DNA Databank

• A government-initiated national DNA databank.
• Population-wide and mandatory inclusion in the
  databank.
• The genetic profile is stored indefinitely. The
  original sample might also be maintained
  indefinitely.

24
Ethical Considerations for Creating Universal DNA
DBsPro Arguments

• Help to solve crimes that would otherwise have
  been unsolvable.
• Deterrent to future crimes.
• Will help to exonerate the innocent who have been
  falsely convicted.
• If universal, would eliminate any biases that may
  exist in the current system e.g. racial biases.
• ID cards based upon these databanks will help to
  prevent illegal entry into a country e.g. by
  terrorists or other foreign nationals.
• Facilitate identification of unknown remains and
  missing children.

25
Ethical Considerations for Creating Universal DNA
DBsCon Arguments

• Intrusion of government into private information.
• May lead to unfettered police powers.
• Retention of biological samples is problematic
  cannot guarantee that genetic information will
  not be used by a government for anything other
  than identification.
• Violates presumptive innocence keep the
  profile and samples in case you commit a crime
  in the future.
• The databases are not error-free. The sheer
  volume of samples tested and put into the
  databases will increase the amount of errors, and
  thus, false positives.

26
Ethical Considerations for Creating Universal DNA
DBsCon Arguments (Contd)

• Very high cost with often unquantifiable or
  undetermined gains.
• Often defendants in the U.S. do not have access
  to the same forensic profiling services as does
  the prosecution negates the exoneration
  benefit.
• An over-reliance on DNA methods might hamper or
  corrupt investigations DNA testing is not
  foolproof, and just as a fingerprint, does not
  indicate guilt by itself.
• Use of these databanks will most likely lead to
  some type of unforeseen discrimination or
  persecution of certain individuals or groups
  based upon their genetic makeup.

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DNA DB's and the 4th AmendmentFourth Amendment

• 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, but upon
  probable cause, supported by Oath or affirmation,
  and particularly describing the place to be
  searched, and the persons or things to be
  seized.

28
DNA DB's and the 4th AmendmentDBs Are Legal

• Legal def of privacy is based on precedent not
  public perception.
• An invasion is not unreasonable if something
  similar to it was considered reasonable in the
  past.
• In order for something to constitute a search
  under the 4th amendment either the info or the
  method of obtaining the info must be
  unreasonable.

29
DNA DB's and the 4th AmendmentDBs Are Legal
(Contd)

• Info Katz v US
• If you expose it to the public its not private
• Face recognition, fingerprints, ... DNA?
• Method
• Sampling techniques are not invasive
• Cheek swab
• Even if the DNA extraction is ruled to be a
  search the gov. can argue that it has a special
  need (natl sec etc.) for the info that outweighs
  the violation of privacy
• i.e. the search is reasonable because the need
  for the info is great

30
DNA DB's and the 4th AmendmentDBs Are Not Legal

• DNA contains a lot more info than a fingerprint
• The search is not like others that have been
  allowed in the past
• DNA sample can be reanalyzed in the future
• Most people would consider this unreasonable
• Info may be given to other governments
• Those gov's may have different laws or concepts
  of privacy

31
Ethical Approaches to Analyzing and Resolving the
DilemmaUtilitarianism

• The ethical doctrine that the moral worth of an
  action is solely determined by its contribution
  to overall utility (consequentialism), where
  utility is often defined as happiness or
  pleasure. (http//en.wikipedia.org/wiki/Utilitaria
  nism)
• Inviolable human rights is a non-issue these are
  typically subservient to the public good.
• Do the benefits to the public good outweigh any
  negative consequences?
• Which policies will produce the greatest
  happiness, on balance, of all of the individuals
  in society? (Arras and Steinbock, 1999)
• Claims to privacy rights are irrelevant. Since
  universal DNA databanks promise an increase in
  crime deterrence and increases the likelihood of
  solving crimes, they are ethical and should be
  allowed.

32
Ethical Approaches to Analyzing and Resolving the
DilemmaDeontological

• A theory of duty or moral obligation, in which
  the intent and method of achieving a goal is
  often more important than achieving the goal
  itself.
• Kant put forth the most famous deontological
  philosophy.
• Must ask the question, Can I, as a rational
  agent, consistently will that everyone in a
  similar situation should act this way?
• Categorical imperative Act always on that maxim
  (or principle) that you can consistently will as
  a principle of action for everyone similarly
  situated.
• Since everyone is included, and if everyone
  agrees to it, then universal DNA databanks are
  ethical and should be allowed.

33
Ethical Approaches to Analyzing and Resolving the
DilemmaRights-Based

• The philosophy that human beings have natural
  rights that are inviolable by any government,
  unless the individual gives explicit consent to
  the contrary.
• Given a set of natural rights, which policies
  will non-consensually violate these rights?
• If privacy is a human right, then mandatory
  inclusion in a universal DNA databank is
  unethical and should not be allowed.

34
Ethical Approaches to Analyzing and Resolving the
DilemmaCommunitarian

• An ideology which emphasizes the responsibility
  of the individual to the community and the social
  importance of the family. (Oxford English
  Dictionary)
• Maintains that society should articulate what is
  good, and asserts that such articulations are
  both necessary and legitimate. (Etzioni, 2006)
• Which policies will promote the kind of community
  in which we want to live? (Arras and Steinbock,
  1999)
• This is a bit vague, since it will vary from
  community to community. But one might argue that
  if the databank only included the profile
  (identification) and not the biological sample,
  then it would be less prone to unknown government
  intrusions. In this case, a community might
  determine it to be ethical because it would
  maintain the type of community a person currently
  lives in while improving the community from a
  crime prevention standpoint. However, the
  ultimate decision needs to be determined by a
  community dialogue.

35
Proposed Solution to the Ethical and Legal
DilemmasTest Everyone or No One

• The following solution was proposed by Williamson
  et al.
• Scenario 1 Take samples only from those
  individual who are involved in criminal
  proceedings
• Implies that genetic profiling is a punishment.
• Rules of consent and privacy rights become
  unclear.
• Biases inherent in the criminal justice system
  e.g. racial can become exacerbated.
• Limited benefit to criminal investigations where
  a biological sample is present.
• Authors argue that this is not a viable option
  because many ambiguities, inefficiencies and
  imbalances emerge. It is only reasonable, fair,
  and effective to test everyone or no one.

36
Proposed Solution to the Ethical and Legal
DilemmasTest Everyone or No One (Contd)

• Scenario 2 Take samples from everyone at birth
• Becomes the norm and would be seen only as a
  method of deterrence, rather than as a
  punishment.
• Rules of consent and privacy rights are crystal
  clear (there are none).
• Removes any inherent biases e.g. racial inherent
  in our criminal justice system.
• Huge benefit to criminal investigations where a
  biological sample is present.

37
Proposed Solution to the Ethical and Legal
DilemmasTest Everyone or No One (Contd)

• Scenario 3 Test no one
• Role as punishment or deterrence is a moot point.
• Rules of consent and privacy rights are crystal
  clear (complete privacy and no consent required).
• There are not any inherent biases.
• Huge roadblock to criminal investigations where a
  biological sample is present.

38
Proposed Solution to the Ethical and Legal
DilemmasTest Everyone or No One (Contd)

• The authors argue that testing everyone is the
  best option because it is reasonable, fair, and
  the benefits to society are substantial.
• However, proper safeguards and checks and
  balances must be instituted to preserve privacy
  and unintended used of a person's genetic
  material.
• As long as the appropriate regulatory measures
  are in place and the database is guaranteed to
  only be used for identification purposes, the
  slippery slope/misuse concerns are alleviated
  or minimized.
• To that end, the authors propose five measures
  that they believe will act as safeguards for
  forensic DNA databases, regardless of whether or
  not they are mandated for everyone.

39
Proposed Solution to the Ethical and Legal
DilemmasTest Everyone or No One (Contd)

1. Forensic laboratories responsible for DNA
   analysis should be independent of the police, and
   should be fully accredited using a national
   scheme, including definition of acceptable staff
   qualifications, periodic assessment and an
   enforceable code of conduct.
2. Any DNA sample taken from a crime scene should be
   sent directly to the laboratory for storage and
   testing. Where possible, it should be divided,
   and one portion should be reserved for the
   defense. Samples should always be kept in
   tamper-evident packaging.

Williamson and Duncan, 2002
40
Proposed Solution to the Ethical and Legal
DilemmasTest Everyone or No One (Contd)

1. Blood, cheek swabs or other samples from
   suspects, convicted offenders or volunteers
   should be sent directly to the laboratory for
   testing, and not be placed in police custody.
   These samples should be destroyed after analysis
   has taken place and DNA profiles entered as data.
2. All DNA profiles should be computerized and held
   on a national or international DNA database that
   is independent of police. The database needs to
   be accessible by police for effective use, but it
   is critical that police cannot enter or alter any
   data.

Williamson and Duncan, 2002
41
Proposed Solution to the Ethical and Legal
DilemmasTest Everyone or No One (Contd)

• Any data accessed from a DNA database
  outside this accredited, independent process
  should not be admissible as evidence.

Williamson and Duncan, 2002
42
References

• Arras, JD, Steinbock, B, London, AJ.
  Introduction Moral Reasoning in the Medical
  Context. Ethical Issues in Modern Medicine. Ed.
  JD Arras and B Steinbock. Mountain View Mayfield
  Publishing Company, 1999. 1-40.
• Bieber, FR, Brenner, CH, Lazer, D. Finding
  Criminals Through DNA of Their Relatives.
  Science. 312, 1315-16 (2006).
• Cho, MK and Sankar, P. Forensic genetics and
  ethical, legal and social implications beyond the
  clinic. Nature Genetics. 36(11), S8-11 (2004).
• Etzioni, A. A Communitarian Approach A Viewpoint
  on the Study of the Legal, Ethical and Policy
  Considerations Raised by DNA Tests and Databases.
  The Journal of Law, Medicine, Ethics. 34(2),
  214-21 (2006).
• Rothstein, MA and Talbott, MK. The Expanding Use
  of DNA in Law Enforcement What Role for Privacy?
  The Journal of Law, Medicine, Ethics. 34(2),
  153-64 (2006).
• Simoncelli, T and Steinhardt, B. California's
  Proposition 69 A Dangerous Precedent for
  Criminal DNA Databases. The Journal of Law,
  Medicine, Ethics. 34(2), 199-213 (2006).
• Williamson, R and Duncan, R. DNA testing for all.
  Nature. 418, 585-6 (2002).