A search of a public DNA genealogical site that led to the arrest this week of the alleged Golden State Killer has not been performed in Virginia.
Police found Joseph James DeAngelo by running a crime-scene DNA profile — believed to belong to the serial rapist and murderer responsible for a string of crimes in California — through a database of genetic profiles shared publicly on a genealogy website in an effort to find his relatives.
That search led authorities to identify DeAngelo, who lived near the scenes of the attacks and was of roughly the right age, as a suspect. His DNA profile was obtained from an item he discarded and it matched the crime scene DNA profile.
The Virginia Department of Forensic Science has been permitted to conduct a limited number of so-called familial DNA searches of state and federal DNA databases since 2012. Searches of non-government databases, such as the one used to nab DeAngelo, are not restricted and no warrant is needed. But Katya Herndon, chief deputy director of the Virginia Department of Forensic Science, said Friday that the department has never done a search involving a genealogical website and has not looked into the feasibility of performing one.
DeAngelo, 72, arrested earlier this week, is a suspect in around 50 rapes and 13 murders in California.
“Are we glad the guy got caught? Absolutely,” said Claire G. Gastañaga, executive director of the American Civil Liberties Union of Virginia. But she added, “There are layers of this that should give everybody some concern. ... How much of your privacy and liberty are you willing to give up?”
Betty Layne DesPortes, a Richmond-area criminal defense lawyer and the immediate past president of the American Academy of Forensic Sciences, said she was not aware of online genealogy databases being used in searches before.
“But it is also something that you would not hear about unless law enforcement admits it,” she said. “This is just the first case we have heard of, or the first time it actually led to an arrest.”
Like familial DNA searching, where state or national DNA databanks are searched for relatives of a suspect, a genealogical database search is an investigative technique that is not admitted at trial. Unlike in familial DNA searches of government databases, the genealogy database is not government property and does not have government restrictions on its use.
“It is open to the public,” DesPortes said. “Once you post the DNA profile, you cede any privacy interest in it. You abandoned it. Law enforcement is not taking it from you, so the Fourth Amendment does not protect you from the government’s use of the information.”
At trial, authorities rely on the DNA collected directly from the suspect via a search warrant based on probable cause to use as evidence. How the police were led to the suspect need not come out at trial, she said.
“That has been done many times and has been upheld by the courts. Why the officers were following him could be based on a hunch, anonymous tip, or any other information,” as long as it is not obtained in violation of constitutional rights, DesPortes said.
“The ACLU may get upset, but people freely uploaded their DNA profiles to the online genealogy sites, making them available for searching, and the courts have held that the Fourth Amendment is not implicated by law enforcement using publicly available information,” she said.
GEDmatch, the website searched by authorities in California, released a statement:
“Although we were not approached by law enforcement or anyone else about this case or about the DNA, it has always been GEDmatch’s policy to inform users that the database could be used for other uses, as set forth in the Site Policy. ... While the database was created for genealogical research, it is important that GEDmatch participants understand the possible uses of their DNA, including identification of relatives that have committed crimes or were victims of crimes. If you are concerned about non-genealogical uses of your DNA, you should not upload your DNA to the database and/or you should remove DNA that has already been uploaded. To delete your registration contact gedmatch@gmail.com.”
Gastañaga cautioned, “There is a buyer-beware piece here. When you’re giving your DNA away to a vendor, what are they telling you about what they’re going to do with it and who they’re going to give it to? Are they going to stand up against the government when the government shows up without a warrant?”
Gastañaga said early Friday that she also was concerned police may have created a false persona to submit the suspect DNA as if it were a sample from someone trying to find a relation. Late Friday, The New York Times was reporting that was exactly what happened.
She said she also believes that Fourth Amendment issues are raised.
“It shouldn’t be the case ... that just making a decision to engage with the digital world means you essentially give the government access to everything about you,” she said.
“They should have to have a warrant to go and get information from Facebook or Google or Ancestry.com, or the license plate reader vendors who are now collecting millions and millions of pictures of people’s license plates when they travel,” Gastañaga said. “I share everyone’s joy that this guy is behind bars, but I think it’s important for the public to understand what they’re giving away in order for this to happen.”
(804) 649-6340
