July 2021

New Law Protects Genetic Privacy and Promotes Public Safety

Privacy is a hot commodity in a world increasingly integrated with technology. What’s more, it can be difficult to know what happens to the data we share with companies every day. We often share our emails, phone numbers, and family names without thinking twice. But what happens when genetic data becomes part of the equation? What happens when the genetic data we share becomes part of a police investigation?

Natalie Ram, JD

Greenwall Faculty Scholar Alum, Natalie Ram, JD, dedicated her Scholar project to investigating law enforcement use of genetic biobanks. Her inquiry into potential privacy protection gaps coincided with the infamous arrest of the Golden State Killer, who was found using investigative genetic genealogy. The technique, which has been used to close cold cases, pairs crime scene DNA with genetic matches using databases outside of the law enforcement database, Combined DNA Index System (CODIS). When law enforcement uses investigative genetic genealogy, they search other databases to mine genetic data of non-suspects potentially related to people of interest – data that was initially shared, for example, for consumer purposes.  

Prof. Ram’s careful theoretical, analytical, and empirical analysis of investigative genetic genealogy landed one of her articles on the desk of a Maryland lawmaker, who became engaged on this issue and ultimately convened a working group to advise lawmakers about how to safeguard both privacy and public safety with a new law. The Greenwall Foundation recently caught up with Prof. Ram to find out how her article helped shape Maryland law.

Tell me about your bioethics work on law enforcement use of genetic databases. 

For the past 13 years, I’ve been thinking about law enforcement use of genetic data, often in a familial context. Law enforcement hadn’t yet made routine use of DNA repositories or DNA databases outside of CODIS, but I was curious about the kinds of protections in place for familial data if law enforcement comes asking for access. When I applied for the Faculty Scholars Program, I asked, “Where are other large repositories of genetic data that law enforcement might want to access? What would the legal framework look like for mediating—or preventing—that kind of access?” The issue of consumer data got cracked wide open when the Golden State Killer was arrested, and all of a sudden what seemed like an abstract risk became a real phenomenon.

How did your work catch the attention of Maryland lawmakers? 

After the Golden State Killer case made headlines, I was invited by the Maryland Bar Journal to write an article discussing where we go from here. In the article, I identified Maryland as one of two jurisdictions that prohibited the use of the state’s component of CODIS for familial searches. I recognized that Maryland had already prohibited the identification of family members as investigative targets using that database, but there was no law surrounding investigative genetic genealogy. The technique, which also identifies family members as targets of investigation but uses a different database, was functionally an end run around Maryland’s prohibition of familial searches. I argued that if Maryland wants to prohibit familial searches, it should prohibit investigative genetic genealogy. Imagine my surprise (and excitement) when I received an email a couple months later from a member of the House of Delegates saying, basically, “I read your article. I agree, we ought to have a law. I’m going to propose a law, here’s the draft.” 

How did your work impact Maryland’s new law on forensic genealogy? 

Less than a year after the Golden State Killer was arrested, the Maryland House of Delegates Judiciary Committee had a hearing on a bill that would have prohibited investigative genetic genealogy. That bill didn’t make it out of committee, but then-delegate, now Senator Charles Sydnor III said it was the beginning of a conversation. We kept talking, and he kept talking with his colleagues. The legislature passed a bill into law on its third iteration of legislation.

Senator Sydnor has often said that his interest in this subject started with my article, but the version that was introduced this year wasn’t the product of my article. It was the result of a working group of subject matter experts across the criminal justice system, and I was fortunate to be a part of that group. To reach consensus, Senator Sydnor and his colleague in the house, Delegate Emily Shetty, convened a working group that helped advise on the creation of a comprehensive piece of legislation. Senator Sydnor and Delegate Shetty had the vision, once the first iteration of the bill failed, to find a more successful way forward.

What does the law do?

The final version of the bill puts investigative genetic genealogy under judicial supervision and limits its use to the most worthy cases. It requires that law enforcement get informed consent if they want DNA samples from non-suspect family members of a putative perpetrator to help fill out a family tree. Among other things, it creates rights for defense and post-conviction counsel to access and use the same technique and data as law enforcement. It also creates a reporting requirement that law enforcement inform the state legislature and an expert panel of when and how investigative genetic genealogy is used.

If the state of Maryland is going to embrace investigative genetic genealogy at all, this is the right way to do it. This is a robust and comprehensive regulatory framework that achieves a balance between privacy and public safety.

What do you hope the effect of this law will be outside of Maryland? 

This is a first in the nation bill that ensures rights of access for defense counsel and certain disclosure requirements, so that “We the People” know what’s being done in our name. I hope to reach out to legislators in other states to see if there is interest in duplicating our success.

What impact has  the  Greenwall Faculty Scholars  Program  had on your work? 

The Greenwall grant offered the opportunity to dive into a bigger, more amorphous type of project with a lot of support, both financially and in the community of Greenwall Scholars. The Golden State Killer case was making headlines for investigative genetic genealogy at the beginning of my project, and I collaborated with Amy McGuire, a central member of the Greenwall Faculty Scholar family, on a lot of my initial work. Greenwall helped me gain authority within my field, a robust scholarly agenda to develop, and a community of friends and colleagues with whom to collaborate. I am tremendously fortunate to be a part of the Greenwall family.