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Police Use of Forensic Genealogy Tech Raises Privacy Concerns

Across the country, the emerging field of investigative genetic genealogy — using direct-to-consumer DNA databases to identify victims and perpetrators of crimes — is being adopted by law enforcement agencies.

(TNS) — The bound and gagged body of Marise Ann Chiverella was still warm to the touch when police arrived at the refuse-strewn stripping hole in Hazle Twp. on the afternoon of March 18, 1964.

It had only been a few hours since the 9-year-old third-grader from Hazleton had been beaten, raped and strangled with her own shoelaces, and the killer had carelessly left behind two pieces of irrefutable evidence — a pubic hair and a semen stain on Chiverella's blouse.

Yet decades would pass before the technology needed to unmask the brutal murderer was finally invented.

Last month, Pennsylvania State Police identified him as James Paul Forte, a bartender who died suddenly at work at the age of 38 on May 16, 1980.

The reveal was too late to bring Forte to justice, but it made headlines across the country and created a local wave of excitement about clearing cold cases. Within days, troopers began a crowdfunding effort to work another cold case, the Luzerne Foundation launched a cold-case fund and some lawmakers began calling for additional state funding to help clear unsolved murders.

Across the country, the emerging field of investigative genetic genealogy — the practice of using direct-to-consumer DNA databases to identify victims and perpetrators of violent crimes — is quickly being adopted by law enforcement agencies that have been long stymied by cold-case investigations. And as DNA testing techniques have grown

more advanced, degraded and contaminated forensic evidence once thought to be lost to time can now be enriched and analyzed, opening the door to solving decades-old cases like the Chiverella murder.

"It's a great time to be an investigator right now — as long as they have the resources to use it," Luzerne County District Attorney Sam Sanguedolce said. "I could very easily see law enforcement agencies — at least the bigger ones — in the near future employing genealogists ... (to) narrow down the universe of population from everybody on earth or in the country or in the state to, now, maybe only 200 people."

But while law enforcement has seized on the technique, the practice remains controversial and has raised privacy concerns along with calls for increased regulation.

"It's kind of like the Wild West," said Kyle L. Kreider, professor of political science at Wilkes University. "Certainly, people want the police to solve cold cases, so there is an interest in having the state able to do that. But we might need to slow down here a little bit."

New techniques

Investigative genetic genealogy isn't exactly a new science in and of itself. It's simply a new technique for putting crime-scene DNA to work.

Police investigating crimes like murder or rape generally enter genetic profiles obtained from crime scenes to the FBI-maintained Combined DNA Index System — which contains more than 19 million profiles of convicted criminals and arrestees as well as forensic profiles — in an effort to identify offenders.

But if the trail goes cold via that route, forensic genealogy can give investigators another avenue to pursue.

By entering a genetic profile to commercial websites like GEDmatch or FamilyTreeDNA, investigators can seek out imperfect matches and identify an offender's relatives who have voluntarily submitted their genetic material for genealogical purposes.

The police can then zero in on the offender by studying the family tree and requesting exclusionary DNA samples from willing members.

The technique received widespread attention in April 2018, when authorities in California solved the Golden State Killer case and charged Joseph James DeAngelo Jr. with murdering 13 people and committing nearly 50 rapes.

Troopers used the same procedure and the same service — GEDmatch — to identify Forte as Chiverella's killer earlier this year.

The controversy comes into play because there are few laws regulating privacy on the commercial databases and many of the genetic testing sites have varying policies about data sharing.

"There are very legitimate privacy concerns here," Kreider said. "I think the vast majority of people who submit their data to these consumer databases are not thinking about it. They're not reading the fine print. They're just looking for some private information about their family."

Some of the largest commercial DNA testing sites do require police to get a warrant to search their databases. says it "insist(s) on a court order or search warrant as the minimum level of due process before we will review our ability to comply" with a law enforcement request for access. The site 23andMe similarly requires a valid court order, subpoena or search warrant to allow access and furthermore vows to notify affected users so that they can try to quash a subpoena.

But other sites, such as FamilyTreeDNA, allow police access in certain cases, such as to identify human remains or the perpetrator of a murder, sex assault or kidnapping. GEDmatch is open to investigators of violent crimes but also allows users to "opt-out" of having their DNA compared to profiles the police enter in their hunt for violent criminals.

"The one thing that concerns me is that even these companies that say they're protecting data, it's usually an 'opt-out,' meaning the default is when you submit your data to those companies you're waiving your rights and they can share that with the police," Kreider said.

Privacy watchdogs note that while the Constitution contains protections against unreasonable searches and seizures, genetic databases potentially give the government access to data containing information about everything from race and eye color to familial connections and the chances of developing certain illnesses.

"There are reasons why we don't allow the police to search every single home," Kreider said. "We require that the government has some sort of individualized suspicion. When you're uploading a genetic profile into a database of 12 million or 15 million, it's like a fishing expedition. The concern is, how much power do we want to give the government? What's the next step?"

Split opinions

Public opinion on the issue appears split.

In a February 2020 survey conducted by the Pew Research Center, 48% of respondents said it was acceptable for DNA companies to share genetic data with law enforcement to help solve crimes. Another 33% said it was unacceptable and 18% said they were unsure.

Most consumers also appear to be concerned about the privacy involved in genetic testing. A survey by Consumer Reports published in October 2020 showed that 44% of respondents were either moderately or extremely concerned about how genetic testing companies protect privacy, while another 38% were either somewhat or slightly concerned.

But many of the respondents also had a flawed understanding of the laws regarding privacy. For instance, more than half incorrectly said they believed the results of commercial genetic tests were protected by the Health Insurance Portability and Accountability Act, which applies only to health care providers and health insurance companies. A full 60% incorrectly said they thought their genetic information could not legally be shared with other companies.

In fact, there is no federal law prohibiting companies from sharing genetic information with third parties, according to the National Human Genome Research Institute.

However, some states have taken steps to regulate the industry. Maryland enacted what the Innocence Project termed a "historic law" last year that requires law enforcement to get judicial approval prior to employing genetic genealogy.

Also last year, California, Utah and Arizona all enacted legislation requiring consumers' express consent for disclosure of their genetic data as well as requiring companies to delete DNA profiles from the databases upon request.

The issue has also arisen in Pennsylvania. In January, state Rep. Emily Kinkead, D-20, Allegheny, introduced the Genetic Materials Privacy and Compensation Act, which would require companies to compensate people whose genetic data is used for profit. In addition to codifying that individuals have "inherent ownership rights" in their genetic material, the act would require DNA testing companies to prominently disclose what data is being collected, for what purpose and with whom it will be shared.

The legislation would require genetic testing companies to destroy genetic material at users' request and would also bar them from providing DNA data to law enforcement "without a warrant or the explicit, affirmative permission of the individual providing the genetic material."

Kinkead said the legislation "is just keeping the laws in line with the Constitution" as technology evolves and that it ensures people's Fourth Amendment rights are protected.

"I think it's fantastic that police were able to solve the Golden State Killer case. I think it's great that the (Chiverella) case was able to be solved after how many decades," Kinkead said. "But at the same time, we have a Bill of Rights. We have constitutional rights against unreasonable search and seizure, and just because companies are doing these kinds of tests does not mean that that's a way the police get to go around people's privacy rights."

The bill, which has 17 co-sponsors, has been referred to the House Consumer Affairs Committee.

Sanguedolce said he doesn't expect such a law to have a major impact on working cold cases in Luzerne County because investigators here already get search warrants or consent when collecting DNA samples.

"We always take the more careful course in getting a search warrant unless we have that express consent, because the last thing you want to do is come up with the answer and then find out approaching trial that you're not going to be able to use the evidence," he said. "When in doubt, we always get one."

Saying he has "no sympathy" for killers who are identified by police with probable cause who search commercial databases, Sanguedolce also said he supports requiring police to get search warrants when conducting such investigations.

"Even though I — technically, in my role as district attorney — am the government that's trying to get into people's privacy, I believe that people's privacy should be protected," Sanguedolce said. "I think (the police) should have access to solve a crime, but not just generally to review whatever they want."

State police spokesman Cpl. Brent Miller said the organization had not reviewed and could not comment on Kinkead's bill, but he noted troopers have "successfully solved crimes in the past using this type of technology," including a 1987 homicide in Adams County that was cleared last summer.

Funding cases

As the debate over privacy continues, police across the country are moving forward with investigative genetic genealogy, which the Journal of Law and the Biosciences reported has already led to the identification of more than 150 suspects.

Shortly after state police announced the Chiverella case had been solved, troopers cited the high cost of cold-case DNA work and started a crowdfunding effort to raise money for testing of the remains of "Baby Boy John Doe," an infant whose body was found in the West Side Landfill in Larksville on Aug. 6, 1980. Two days later, state police announced they had raised the $5,000 needed to retain Texas-based Othram Inc., a laboratory specializing in recovering and analyzing trace amounts of DNA.

On the heels of that success, the Luzerne Foundation launched a permanent "Closing Cases" fund to help solve other cold cases, including the death of a "Jane Doe" found on Alden Mountain in Newport Twp. on Nov. 17, 2012.

David Pedri, the foundation's president and chief executive, said the fund is "performing well" and that he expects the foundation will soon be able to fully fund the genetic testing.

"We just saw a need in the community so we offered to step up," said Pedri, a former prosecutor. "It takes an incredible amount of time and effort and some clear understanding of science and its principles by incredibly well-trained scientists and lab technicians. That's why I applaud state police and the DA's office for taking the necessary steps to closing these cases out, even though it's a long road and it could be expensive."

State Sen. Lisa Baker, R-20, Lehman Twp., said she is advocating for increased funding to allow Pennsylvania State Police to work more cold cases.

"While I think it was really fabulous that everybody donated and supported the effort on that little baby boy, it's a core function of state government for us to do criminal investigations and I don't think we should be relying on philanthropy or the public to fund those investigations. It should be included in our state budget," said Baker, who in January voted in favor of legislation to allow police to collect and submit DNA samples of missing or unidentified people and share them via a secure database with the National Missing and Unidentified Persons System.

Gov. Tom Wolf signed that bill into law on Feb. 3.

"We do have a significant backlog of cold cases," Baker said. "I think we owe it to the families — we owe it to law enforcement — to support their ability to investigate and put missing persons at the top of their priority list."

© 2022 The Citizens' Voice (Wilkes-Barre, Pa.). Distributed by Tribune Content Agency, LLC.