Unraveling A podcast about science, technology, and criminal justice

By: Emma Peaslee

1 Table of Contents:

TABLE OF CONTENTS: ...... 2 INTRODUCTION ...... 3 LITERATURE REVIEW ...... 5

THE HISTORY OF DNA AND CRIME ...... 5 THE BUSINESS OF ...... 8 CRIMINAL JUSTICE AND GENETIC GENEALOGY ...... 10 PRIVACY CONCERNS ...... 14 METHODOLOGY ...... 19

LIMITATIONS ...... 21

2 Introduction

In Edmonds, Wash., a young woman went on a bike ride and never came home. Her body was eventually found in the woods. She had been shot in the head.

A young boy was believed to be in South Korea with his mother. His body was discovered beneath a billboard in North Carolina. He had been strangled.

In La Jolla, Calif., a woman was found stabbed in her home. The detectives found blood in multiple rooms.

These crimes took place decades ago, scattered across the country, but they were all solved within the last year. They were not committed by the same mysterious killer, but they were all solved by the same mysterious technology.

What started as a way to research family history and discover distant relatives has created a breakthrough in criminal investigations. Over the past decade, websites like 23andMe and Ancestry have popularized a business known as genetic genealogy. Genetic genealogy involves profiling DNA in combination with traditional genealogical methods to infer familial relationships. But this new DNA technology has recently been used to do more than just find great-grandparents.1

In April 2018, police announced the arrest of the “Golden State Killer” due largely to an

“innovation in DNA technology” otherwise known as genetic genealogy.2 A serial rapist and murderer, the suspect was responsible for dozens of attacks throughout the state of California in the ’70s and ’80s. The case had largely come to dead end despite years of work by law enforcement and FBI. The April arrest marked the first time this technology caught the attention of both the public and investigators across the country, and it signaled a shift in the future of criminal investigation.

1 Heather Murphy, “Sooner or Later Your Cousin’s DNA is Going to Solve a ,” The New York Times, April 25, 2019, https://www.nytimes.com/2019/04/25/us/golden-state-killer-dna.html, (accessed October 4, 2019). 2 Murphy, “Sooner or Later Your Cousin’s DNA is Going to Solve a Murder,” The New York Times.

3 The police worked with a genetic genealogist to convert and upload the anonymous killer’s DNA to a public genealogy website. These websites provide different information than traditional police DNA databases because they allow access to the genetic information of everyday people, not just criminals. They also don’t require a direct match. Investigators can find potential suspects even when the suspect’s genetic information is not on the site. The matches are often based on a distant relative, and investigators work backward to build a family tree for their suspect from that data. This information acts as a tip that points police in the right direction. The closer the match the easier it is for investigators to track down potential suspects.

Less than two years after the Golden State Killer arrest, genetic genealogy is being used in police departments across the country to solve cold-cases, identify remains, and even overturn a conviction. The new technology has implications for thousands of unsolved cold- cases and unidentified bodies still out there. However, some of the larger companies have already become wary of police searches and have created specific guidelines to prevent the sharing of DNA without customers’ knowledge. Privacy advocates say this fear is warranted because while traditional police DNA databases only provide a genetic fingerprint, genetic genealogy databases can provide information about a person’s appearance, medical conditions, and even potential predispositions to mental health problems.3 The steps police are taking have led them to uncharted territory.

What happens when technology advances before the regulations? My project will be several audio stories featuring people who are for and against this new technology. Who is benefitting and who could be⎯ or already has been⎯ hurt by genetic genealogy? Privacy advocates believe there is a reason to be concerned with law enforcement's unfettered access to people’s genetic information. According to a recent study, 60% of Americans of Northern

3 Tina Hesman Saey, “Genealogy companies could struggle to keep clients’ data from police,” ScienceNews, June 10, 2019, https://www.sciencenews.org/article/forensic-genetic-genealogy-companies-police-privacy, (accessed September 28, 2019).

4 European descent, the primary users, can be identified through the databases whether or not they’ve submitted their genetic information.4 In two to three years, that number is expected to be closer to 90%. The future of privacy and genetic genealogy will have implications for the

American population whether they ever use the service.

Literature Review

The History of DNA and Crime

One of the first uses of deoxyribonucleic acid or DNA to solve a criminal investigation was in England in the 1980’s.5 A genetic professor at the University of Leicester, Alec Jeffreys, discovered that DNA could be used to tell people apart. Much like the origins of genetic genealogy, Jeffreys had mostly been using this new advancement for connecting family members. However, others saw the implications for criminal investigations after two local rape and murder cases perplexed police. Jeffreys was recruited and then able to link the two cases to the same killer and rule out a prime suspect with DNA analysis. The killer was eventually caught when the police put out a call for DNA samples and overheard a person saying they’d been paid to pose as someone else for the round-up. The police then tested the man who had attempted to evade them. When confronted with the DNA match, he confessed. The process

Jeffreys used to help catch the killer is what’s known as “DNA profiling.”6

4 Yaniv Erlich, Tal Shor, Itsik Pe’er, Shai Carmi, “Identify inferences of genomic data using long-range familial searches,” Science, Vol. 362, Issue 6415, pp. 690-694, November 9, 2018, https://science.sciencemag.org/content/362/6415/690. 5 Celia Henry Arnaud, “Thirty years of DNA forensics: How DNA has revolutionized criminal investigations,” Chemical & Engineering News 95, no. 37 (2017): 16-20, https://cen.acs.org/articles/95/i37/Thirty-years-DNA-forensics- DNA.html. 6 Lutz Roewer, “DNA fingerprinting in forensics: past, present, future,” Investigative Genetics 4, no. 22 (2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3831584/.

5 What followed that first breakthrough has been considered a “golden research age” for

DNA and criminal investigations.7 DNA is a genetic code containing four letters: A, T, G, and C.

These letters are the bases of DNA, and they are interpreted by the cells to make molecules and structures that allow the body to function.8 DNA contains areas where short sequences of bases are repeated several times, and they’re found in many different spots throughout the genome or an organism’s complete set of DNA.9 The exact number of repeats is different for each person so scientists can use this information to identify people.10 During those first criminal cases done by Jeffreys, the DNA profiling process took six to eight weeks.

In the 1990’s, the forensics community switched to shorter repeating sequences known as short tandem repeats (STRs). This update allowed the process to become faster and more automated. In addition to this development, a biochemist named Kary Mullis developed polymerase chain reaction (PCR). In PCR, enzymes “amplify” DNA samples by copying them.

This makes it easier to get DNA profiles from smaller samples.11 With these advancements, technicians can take a single strand of DNA and copy it a million times over in a couple of hours. This allows people like forensic scientists to get a lot of information from even very small

DNA samples.

Much like the police in Leicester discovered after Jeffreys joined the case, DNA evidence is not that effective unless you have more DNA to compare it against. One of the biggest advancements in DNA technology has been the creation of databases. CODIS or the

Combined DNA Index System was created by the Federal Bureau of Investigation in 1990 as a pilot program. 12 The acronym is often used as shorthand for the database, but it’s actually the

7 Roewer, “DNA fingerprinting in forensics: past, present, future.” 8 Mary May, “Next Generation Forensics: Changing the Role DNA plays in the justice system,” Harvard University Website, November 9, 2018, http://sitn.hms.harvard.edu/flash/2018/next-generation-forensics-changing-role-dna- plays-justice-system/. 9 Arnaud,16-20. 10 Ibid. 11 Ibid. 12 Sheldon Krimsky and Tania Simoncelli, “Genetic Justice: DNA Data Banks, Criminal Investigations and Civil Liberties,” (New York: Columbia University Press, 2011) 29.

6 software program that searches DNA at the national, state, and local level.13 The purpose of the program was to collect, analyze, and store the DNA of felons convicted of sex offenses and other violent crimes that might be likely to be repeat offenders.

In 1994, the pilot program became official through the DNA Identification Act, and databases at every level began to grow.14 By 1998, all 50 states had created databases. While there are requirements for certain convicted offenders, each state now has its own additional criteria for who can be included in the database. Those criteria include everything from felons convicted of white-collar crimes to juvenile offenders. The federal database contains 14 million people convicted of crimes, 3.7 million arrestees, and 973,000 samples gathered at crimes scenes as of September 2019.15

Typically, when law enforcement officials search a DNA database, they are looking for a

1:1 match. However, certain states also allow something called familial searches.16 The idea behind this technology is that close matches to a DNA profile likely indicate that the source of the DNA are close family members. The close matches are thus worthy of investigating because they may lead law enforcement to the suspect. However, they also create a lot of ethical questions. The practice expands the pool of law enforcement DNA databases to include millions of innocent people who just happen to be family members of convicted criminals. Only 12 states employ the practice, and Maryland and Washington D.C. have categorically banned its use.17

13 Erin Murphy, “Inside the Cell,” (New York: Nation Books, 2015) 14. 14 Krimsky and Simoncelli, Genetic Justice, 45. 15 Megan Molteni, “The WIRED Guide to Genetic Testing,” Wired, December 3, 2019, https://www.wired.com/story/what-is-genetic-testing/, (accessed December 5, 2019). 16 Krimsky and Simoncelli, Genetic Justice, 64-71. 17 James Rainey, “Familial DNA puts elusive killers behind bars. But only 12 states use it,” NBC News, April 28, 2018, https://www.nbcnews.com/news/us-news/familial-dna-puts-elusive-killers-behind-bars-only-12-states-n869711, (accessed January 4, 2020).

7

The Business of Genetic Genealogy

As DNA technology advanced, several companies sought to bring genetic testing to the masses. 23andMe leveraged the dropping costs of DNA testing to provide people with the ability to learn about potential dispositions for traits ranging from baldness to blindness from their own home.18 Customers receive a vial in the mail, spit into it, and send it back. The DNA is then copied multiple times, a process known as amplification, so that it is large enough to be genotyped.19 Genotyping involves spot checking different sections of the DNA to learn about which versions of a gene a person might carry.20 This information is compiled into a report that is shared with the customer, who also has the ability to get a digital copy of their DNA. This digital copy is a series of SNPs that can then be uploaded to another website for those users interested in more advanced genealogical searches or finding relatives not on the site they tested with. By 2009 the test, previously almost $1,000, was only $399 and continuing to drop. 21

By 2011, the company surpassed 100,000 customers. Today, 23andMe’s website boasts more than 10 million customers.22

The future of the DNA testing market wasn’t always so bright. When it first began,

23andMe initially circumvented FDA regulations by marketing itself as a fun, recreational product rather than a medical tool. But as the company began to expand its offerings, 23andMe found itself bumping up against the FDA. The regulating body demanded evidence the company

18 Anita Hamilton, “The Retail DNA Test,” TIME, October 29, 2008, http://content.time.com/time/specials/packages/article/0,28804,1852747_1854493,00.html (accessed October 17, 2019). 19 Jason Madara, “The extraction process: meet ’s Anne Wojcicki,” Wired, March 6, 2017, https://www.wired.co.uk/article/the-extraction-process (accessed October 20, 2019). 20 Biz Carson and Kathleen Chaykowski, “Live Long And Prosper: How Anne Wojcicki’s 23andMe Will Mine Its Giant DNA Database for Health and Wealth,” Forbes, June 6, 2019, https://www.forbes.com/sites/bizcarson/2019/06/06/23andme-dna-test-anne-wojcicki-prevention-plans-drug- development/#3263c0f6494d (accessed October 20, 2019). 21 Aaron Rowe, “Human Genetics is Now a Viable Hobby – 23andMe Cuts its Price to $399,” Wired, September 8, 2008, https://www.wired.com/2008/09/23andme-cuts-it/ (accessed October 18, 2019). 22 Erika Check Hayden, “The rise and fall and rise again of 23andMe,” Nature 550, no. 7675, (2017) 174-177, https://www.nature.com/news/the-rise-and-fall-and-rise-again-of-23andme-1.22801.

8 could provide the medical services it was advertising.23 The CEO, Anne Wojcicki, didn’t believe she needed to cooperate with the FDA, but the company was eventually sent a warning letter from the FDA that brought 23andMe to a screeching halt in 2013.24 Wojcicki was forced to rebuild the company, getting FDA approval every step of the way. This setback had huge implications for the future of genetic genealogy. During the FDA battle when the company could no longer provide medical testing, 23andMe switched its focus to ancestry.25 Around this same time, a competitor popped up.

What started as a genealogy publishing company known as Ancestry transformed into one of the biggest DNA databases in the world by capitalizing on the advent of the internet.

Ancestry began digitizing records that were previously difficult to access and combined this with a platform for people to build out their family trees. Familial searches that might have taken years can now take as little as two hours.26 Some of this information is free, but for an added price people can access even more records from across the nation and around the world.

However, the company had its sights set on connecting people with more than just records.

In 2012, Ancestry created AncestryDNA, a company that integrated DNA into family trees and genealogical searches.27 Ancestry tests DNA and tells people their ethnic makeup but also compares customers’ DNA against their database. From this, the company is able to identify potential family relationships, and it continues to test the DNA against the database as new users are added. As of 2019, the company has over 15 million people in their network.28

23 Ibid. 24 Adam Bluestein, “After a Comeback, 23andMe Faces Its Next Test,” Fast Company, August 9, 2017, https://www.fastcompany.com/40438376/after-a-comeback-23andme-faces-its-next-test (accessed October 20, 2019). 25 Peter Aldhous, “10 Years Ago, DNA Tests Were the Future of Medicine. Now They’re A Social Network – And A Data Privacy Mess,” Buzzfeed, December 11, 2019, (accessed December 20, 2019), https://www.buzzfeednews.com/article/peteraldhous/10-years-ago-dna-tests-were-the-future-of-medicine-now. 26 Mickey Meece, “Finding Family History Online,” The New York Times, May 18, 2011, https://www.nytimes.com/2011/05/19/technology/personaltech/19basics.html, (accessed October 21, 2019). 27 “About Us: Our Story,” Ancestry, https://www.ancestry.com/corporate/about-ancestry/our-story, (accessed October 20, 2019). 28 “Finding Biological Family,” AncestryDNA, https://support.ancestry.com/s/article/Finding-Biological-Family (accessed October 22, 2019).

9 23andMe and Ancestry might be two of the bigger players, but there are many companies in the field now. Some occupy more niche segments of the market like

AfricanAncestry.com which is an entirely black-owned company or MyHeritage that has a higher percentage of non-U.S. users and is considered especially good for finding matches in the

Jewish community.29 23andMe and Ancestry don’t let users upload DNA from other companies, which has spurred the creation of open source platforms like GEDmatch and Family Tree DNA.

These companies let users upload their DNA from other sites and compare it across platforms.

They also have less stringent privacy restrictions which plays an important role in the development of genetic genealogy and criminal investigations.

Overall, the DNA testing business seems to have rebounded. A recent study found almost 250 companies offering DNA testing.30 According to Nature, a science journal, direct-to- consumer genetic-testing is predicted to grow to a nearly $350-million market in the next couple of years. And that’s just a small fraction of the overall DNA testing market which is projected to reach $10 billion during the same time frame.31

Criminal Justice and Genetic Genealogy

Barbara Rae Venter was a retired patent lawyer before she became a genetic sleuth, but

Venter’s background prepared her for more than just finding long lost cousins. With a Ph.D. in biology and an ex-husband who was known for his work sequencing the human genome, Venter was an ideal candidate to bring about DNA’s biggest criminal breakthrough.32 Venter was

29 Elizabeth Weise, “These are the top companies offering genealogical DNA testing to learn about your family,” USA Today, December 2, 2018, https://www.usatoday.com/story/news/2018/12/02/genealogical-dna-testing-companies- ancestry-23-andme/2141344002 (accessed October 21, 2019). 30 Andelka M. Phillips, “Only a click away—DTC genetics for ancestry, health, love… and more: A view of the business and regulatory landscape,” Applied & Translational vol. 8 16-22. 2 Feb. 2016, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4796702/. 31 Hayden, “The rise and fall and rise again of 23andMe.” 32 Heather Murphy, “She Helped Crack the Golden State Killer Case. Here’s What She’s Going to Do Next,” The New York Times, August 29, 2018, https://www.nytimes.com/2018/08/29/science/barbara-rae-venter-gsk.html (accessed October 22, 2019).

10 previously helping adoptees find their birthparents when she was recruited to help on her first criminal case in 2015. A woman named Lisa had been kidnapped at birth and was in search of her real identity and family history. Venter was able to connect Lisa with a grandfather and find a full family tree. It signaled to law enforcement that genetic genealogy could be used to find someone even if all they had was DNA. This piqued the interest of Paul Holes, a district attorney in California, who had a slightly bigger project in mind. 33 Holes approached Venter about working on a case that she would eventually learn was the Golden State Killer.34

Around that time, a debate was going on in the genealogical community about whether to use this growing field to help law enforcement. Sites like 23andMe and Ancestry have strict privacy policies that don’t allow law enforcement access without a warrant. But some genealogists who regularly work adoption cases knew there was a workaround.35 GEDmatch is a public database that allows users from across companies to upload their genetic information, and more importantly, it has a looser customer service agreement. Investigators could, whether or not they were supposed to, upload crime scene DNA to GEDmatch.

GEDmatch is the ideal tool for investigators not only for its loose privacy restrictions, but also because it has advantages the FBI database doesn’t. The FBI database uses STRs that look at up to 20 locations in the human genome and offer little information about appearance or medical conditions. Even if investigators use familial searching in FBI databases, at best, the genetic information from these samples can only identify parents, siblings, or children of the suspect.36 The accuracy is also dependent on the quality of the DNA sample. Instead,

GEDmatch and databases like it use data from commercial companies that look for single-

33 Matthias Gafni, “A year after Golden State Killer arrest, genealogy pro keeps solving crimes,” San Francisco Chronicle, April 19, 2019, https://www.sfchronicle.com/bayarea/article/A-year-after-Golden-State-Killer-arrest- 13779124.php (accessed October 22, 2019). 34 Gina Kolata and Heather Murphy, “The Golden State Killer Is Tracked Through a Thicket of DNA and Experts Shudder,” The New York Times, April 27, 2018, https://www.nytimes.com/2018/04/27/health/dna-privacy-golden- state-killer-genealogy.html?action=click&module=RelatedLinks&pgtype=Article (accessed October 22, 2019). 35 Murphy, “She Helped Crack the Golden State Killer Case. Here’s What She’s Going to Do Next.” 36 Erin Murphy, “Law and policy oversight of familial searches in recreational genealogy databases,” Forensic Science International, 292 (2018) e5-e9.

11 nucleotide polymorphisms (SNPs) which contain information about almost 600,000 locations in the genome.37 They can also give information about appearance.

However, using a database like GEDmatch involves more than just uploading DNA to a site and finding the killer. In fact, the initial upload rarely results in a direct match because the available databases are so small. The sites produce a list of matches and predictions of the potential relationship or range of relationships based on the amount of DNA the two people share. Genealogists hope for close matches because relationships can be more accurately predicted up to about the second cousin level.38 After this, the accuracy of the relationship prediction varies based on the company. The process can then involve scientific skill. A genetic genealogist can do things like compare autosomal DNA profiles and know which branch of a tree to focus on or see how these pieces might fit together.39 They build out these family trees with tools like public records, social media, and newspaper clippings. They look for where the two sides of the family trees, the maternal and fraternal, overlap. The victim or suspect, depending on the type of case, is a descendant of that tree. Sometimes they ask law enforcement to contact the closest relative they can find to ask them to upload their DNA to help further the family tree.

In the case of the Golden State Killer, investigators found the great-great-great grandparents of the killer who were alive in 1800s.40 From there, the team created around 25 family trees. They used census data, old newspaper clippings, and a gravesite locator to identify deceased relatives on the trees. When it came to living relatives, the investigators used police

37 Sarah Zhang, “How a Tiny Website Became the Police’s Go-To Genealogy Database,” The Atlantic, June 1, 2018, https://www.theatlantic.com/science/archive/2018/06/gedmatch-police-genealogy-database/561695/ (accessed October 22, 2019). 38 Debbie Kennett, “Using genetic genealogy databases in missing persons cases and to develop suspect leads in violent crimes,” Forensic Science International, vol 301 107-117, August 2019. 39 Murphy, “She Helped Crack the Golden State Killer Case. Here’s What She’s Going to Do Next.” 40 Justin Jouvenal, “To Find Alleged Golden State Killer, investigators first found his great-great-great-grandparents,” The Washington Post, April 30, 2018, https://www.washingtonpost.com/local/public-safety/to-find-alleged-golden- state-killer-investigators-first-found-his-great-great-great-grandparents/2018/04/30/3c865fe7-dfcc-4a0e-b6b2- 0bec548d501f_story.html, (accessed January 10, 2020).

12 databases and sites like LexisNexis to identify people. After building out the trees, investigators then started looking for potential suspects. That is, men that are the killer’s age and have connections to the locations of the crimes.41 They found two. One was eventually eliminated by a DNA test from a close relative. The other was Joseph James DeAngelo, the Golden State

Killer. The whole process took months.

Since that first big case dozens of crimes across the country have been solved using genetic genealogy and two willing databases, GEDmatch and Family Tree. The process has not always gone smoothly. When detectives first uploaded DNA in the Golden State case they did so under a fake profile. In fact, the founder of GEDmatch, Curtis Rogers, only discovered after the fact that his website had been used by California police to catch the Golden State Killer.

Almost all of the commercial websites require that you upload your own DNA or someone whose consent you have. Rogers, was initially against the use of his site by law enforcement.

However, the case was so celebrated by the public that he changed his mind.42 He then updated GEDmatch’s Terms of Service to make clear “DNA obtained and authorized by law enforcement” can be uploaded to help catch criminals.43 But there was a caveat, DNA can only be uploaded to help identify a suspect from a violent crime. GEDmatch defined violent crime as a homicide or sexual assault. And while some users did delete their information after the update, Rogers, the owner of the site, said he also received “thank you’s.”44

At a recent conference for geneticists, one professor likened this new breakthrough to the “internet” for DNA.45 It’s even spawned new businesses like Parabon NanoLabs that team

41 Jouvenal, “To Find Alleged Golden State Killer, investigators first found his great-great-great-grandparents,” The Washington Post. 42 Michael Barbaro and Heather Murphu, “A New Way to Solve a Murder, Part 1: The Genetic Detectives,” The New York Times, The Daily, June 9, 2019, https://www.nytimes.com/2019/06/06/podcasts/the-daily/dna-genealogy- crime.html, (accessed January 10, 2020). 43 Zhang, “How a Tiny Website Became the Police’s Go-To Genealogy Database.” 44 Zhang, “How a Tiny Website Became the Police’s Go-To Genealogy Database.” 45 Heathy Murphy, “Playing Catch a Killer in a Room Full of Sleuths,” The New York Times, October 7, 2019, https://www.nytimes.com/2019/10/05/us/genetic-genealogy-guidelines-privacy.html, (accessed December 5, 2019).

13 up with genetic genealogists and contract with law enforcement.46 These advancements bring back into play DNA from any crime scene ever. For many, this is cause for celebration. All of these breakthroughs allow DNA technology the potential to be the most irrefutable evidence of a person’s connection to a crime scene, and in an ideal world, strengthen the credibility of the legal system.47

Privacy Concerns

It wasn’t long until Rogers and GEDmatch would hit another bump in the road. In the fall of 2018, an assailant broke into a Mormon church in Utah and put an older woman in a chokehold until she passed out.48 The local police department working with a DNA analysis company, Parabon NanoLabs, wanted to upload the crime scene DNA to GEDmatch. Parabon

NanoLabs refused because the assault didn’t fall under GEDmatch’s Terms of Service. It was not considered a violent crime under the company’s definition. The lead detective went right to the source and asked Rogers if they could use the database. The detective argued the criminal was likely to strike again, and Rogers agreed and allowed the police to search the database.

This time the public was not as receptive. People worried if the site would cave at the first request, what did it matter that the company had Terms of Service at all. Just days after

BuzzFeed broke the story about GEDmatch bending its rules, the website updated its privacy requirements again.49 They expanded the definition of violent crime, and most importantly, users must now explicitly opt in for their DNA to be used for police searches. The size of the database

46 Aldhous, “10 Years Ago, DNA Tests Were the Future of Medicine.” 47 Nigel McCrery, Silent Witnesses: The Often Gruesome But Always Fascinating History of Forensic Science (Chicago: Chicago Review Press, 2014), 30. 48 Peter Aldhous, “The Arrest Of A Teen On An Assault Charge Has Sparked New Privacy Fears About Genetic Sleuthing,” BuzzFeed News, May 14, 2019, https://www.buzzfeednews.com/article/peteraldhous/genetic-genealogy- parabon-gedmatch-assault (accessed October 23, 2019). 49 Peter Aldhous, “This Genealogy Database Helped Solved Dozens of Crimes. But Its New Privacy Rules Will Restrict Access By Cops,” BuzzFeed News, May 19, 2019, https://www.buzzfeednews.com/article/peteraldhous/this- genealogy-database-helped-solve-dozens-of-crimes-but (accessed October 23, 2019).

14 went from 1.2 million to effectively zero overnight, rendering it almost useless to police. While users are slowly opting in, it’s unlikely to reach the same size. For deceased users, those records and potential leads are lost forever.

At the end of December 2019, Rogers and the other co-founder bowed out of the crimefighting business when they sold GEDmatch to a company call Verogen that makes equipment to sequence DNA for crime scenes.50 This transaction formalizes GEDmatch’s transition from recreational genealogy site to a major player in criminal investigations. It also opens up a whole host of implications for genetic privacy.

GEDmatch is not the only site navigating this business. Family Tree has a similar site and model to GEDmatch. It also has a similar Terms of Service that the company updated after

BuzzFeed broke a story about how Family Tree had been quietly working with the FBI. The company requires the police to ask for permission, but the key difference is the default setting opts users in instead of out of police searches. So far, less than 2% have opted out.51 The company and its founders have leaned into their new role as crimefighters.52

While all these changes may give users more control over their genetic privacy, it doesn’t extend the same rights to their family members—many of whom can be identified without ever submitting their DNA to a website. The average person can be identified through a relative as far away as a third cousin and most of us have at least 800 relatives that fall into this category.53 Sometimes the police just reach out to these family members to help further their

50 Nila Bala, “We’re Entering a New Phase in Law Enforcement’s Use of Confumser Genetic Data,” Slate, December 19, 2019, https://slate.com/technology/2019/12/gedmatch-verogen-genetic-genealogy-law-enforcement.html, accessed January 4, 2020). 51 Sarah Zhang, “The Messy Consequences of the Golden State Killer Case,” The Atlantic, October 1, 2019, https://www.theatlantic.com/science/archive/2019/10/genetic-genealogy-dna-database-criminal- investigations/599005/ (accessed October 23, 2019). 52 Sarah Zhang, “A DNA Company Wants You to Help Catch Criminals,” The Atlantic, March 29, 2019, https://www.theatlantic.com/science/archive/2019/03/a-dna-company-wants-your-dna-to-catch-criminals/586120/, (accessed October 23, 2019). 53 Heather Murphy, “Most White Americans’ DNA Can Be Identified Through Genealogy Databases,” The New York Times, https://www.nytimes.com/2018/10/11/science/science-genetic-genealogy-study.html, (accessed January 5, 2020).

15 investigations, but other times they’re ensnared in the investigations themselves. This happened to Michael Ursy in 2015.54 His father uploaded DNA to a project through his Mormon church that was later purchased by Ancestry. Police searched the database and then under a court order

Ancestry provided the name of Ursy’s father who was a partial match with the killer. Ursy was questioned by police and then compelled to give a DNA sample to clear his name. He was only ever a suspect because his father uploaded his DNA to what he thought was just a recreational genealogy project.

For many, the sheer amount of data these tests provide raises red flags. Those concerned include the U.S. military. This winter, the Pentagon issued a memo discouraging members of the armed forces from taking at-home DNA tests.55 The memo said this was, in part, because the Food and Drug Administration doesn’t support the validity of all the health claims but also because of who the information might be shared with. There is concern the memo said, “that outside parties are exploiting the use of genetic materials for questionable purposes, including mass surveillance and the ability to track individuals without their authorization or awareness.”56

Even as the privacy fears begin to amplify in certain circles, the police seem determined to keep this new technology. After GEDmatch updated its Terms of Service, a detective in

Florida obtained a warrant to search all of GEDmatch including people who had opted out.57

Erin Murphy, a law professor at New York University called it a “game-changer,” and she said,

54 Brendan Koerner, “Your relatives DNA could turn you into a suspect,” Wired, October 13, 2015, https://www.wired.com/2015/10/familial-dna-evidence-turns-innocent-people-into-crime-suspects/, (accessed January 10, 2020). 55 Tim Stelloh and Pete Williams, “Pentagon tells military personnel not to use at-home DNA kits,” NBC News, December 23, 2019, https://www.nbcnews.com/news/military/pentagon-tells-military-personnel-not-use-home-dna- kits-n1106761?cid=sm_npd_nn_tw_ma, (accessed January 6, 2020). 56 Heather Murphy and Mihir Zaveri, “Pentagon Warns Military Personnel Against At-Home DNA Tests,” The New York Times, December 24, 2019, https://www.nytimes.com/2019/12/24/us/military-dna-tests.html, (accessed January 4, 2020). 57 Kashmir Hill and Heather Murphy, “Your DNA Profile is Private? A Florida Judge Said Otherwise,” The New York Times, November 5, 2019, https://www.nytimes.com/2019/11/05/business/dna-database-search-warrant.html (accessed November 5, 2019).

16 it’s a signal that no genetic information can be protected. This move also suggests that law enforcement have no plans to slow down and may eventually have their sights set on much bigger targets like 23andMe and Ancestry. 23andMe has explicitly stated that if a warrant were brought by police to search their site, they would fight it. In a blog post from the company, Kathy

Hibbs, 23andMe’s Chief Legal and Regulatory Officer, highlights that GEDmatch complied within 24 hours of the warrant. She wrote, it doesn’t appear that GEDmatch “exhausted all legal avenues.”58 Additionally, Hibbs argued that because 23andMe has always been private, she doesn’t believe this decision will affect their site. The original warrant was for a case that started before GEDmatch changed its Terms of Services to opt users out. It’s possible the fact that investigation was already underway when the Terms of Services were changed affected the success of the warrant.

In September of 2019, the federal government announced an interim policy to guide investigations that use genetic genealogy.59 Some of the guidelines include exhausting all other investigative options before using genetic genealogy and barring police from looking at the disease risks or psychological traits of a suspect. A final policy is scheduled to be issued in

2020, and the rules will only apply to the federal government and federally funded state and local agencies. As of now, there are no formal laws governing these types of databases or their use in criminal investigations.

In 2004, Judge Stephen Reinhardt wrote, “The power to assemble a permanent national

DNA database of all offenders who have committed any of the crimes listed has catastrophic potential.”60 This quote is from the dissent of United States v. Kincade at the Court of Appeals for the Ninth Circuit. In the ruling, the majority upheld the constitutionality of collecting and

58 Kathy Hibbs, “Our stance on protecting customers’ data,” 23andMe Blog, November 7, 2019, https://blog.23andme.com/news/our-stance-on-protecting-customers-data/. 59 Jocelyn Kaiser, “New federal rules limit police searches of family tree DNA databases,” Science, September 25, 2019, https://www.sciencemag.org/news/2019/09/new-federal-rules-limit-police-searches-family-tree-dna-databases, (accessed January 5, 2020). 60 Krimsky & Simocelli, Genetic Justice, 28.

17 retaining DNA from parolees. Judge Reinhardt is talking about a government run database subject to laws and regulations for people convicted of crimes. Imagine what he might write about these new, privately held databases, subject to the whims of CEO’s and containing thousands of DNA not from criminals, but everyday citizens and their unsuspecting family members.

So far, the backlash that many genealogists predicted would happen when police began using these sites for criminal searches hasn’t really materialized. Likely, in part, because it’s most often used in horrific crimes where police have reached a dead end. This is a problem that plagues those who seek to fight the potential overreach of this new technology. It can be hard to see the victim.

In a recent survey about genetic genealogy, 91% of people said police searches should be allowed for violent crimes.61 In interviews with relatives whose DNA helped put their distant family member away, the relatives seemed unfazed.62 This may be because it’s been difficult to understand the concerns around genetic genealogy. Up until recently, they have been purely theoretical. But as Reinhardt wrote in his dissent, “Privacy erodes first at the margins, but once eliminated, its protections are lost for good, and the resulting damage is rarely, if ever, undone.

Today, the court has opted for comprehensive DNA profiling of the least protected among us, and in so doing, has jeopardized us all."63

61 Christi J. Guerrini, Jill O. Robinson, Devan Petersen, Amy McGuire, “Should police have access to genetic genealogy databases? Capturing the Golden State Killer and other criminals using a controversial new forensic technique.” PLOS Biology 16, 10: (2018), https://doi.org/10.1371/journal.pbio.2006906. 62 Caleb Hutton, “My cousin, the killer: Her DNA cracked a 1987 double murder - Chelsea Rustad is skeptical of cops. But she's glad they used her genes to solve the Talbott murder case,” The Daily Herald, July 28, 2019, https://www.heraldnet.com/news/my-cousin-the-killer-her-dna-cracked-a-1987-double-murder/,(accessed January 5, 2020). 63 “United States v. Kincade,” Electronic Privacy Information Center, April 4, 2006, https://epic.org/privacy/kincade/.

18 Methodology

I created an episodic podcast with each episode around 10 minutes. I was the host and told the story through one criminal case. I wrote the scripts, voiced the piece, and edited it together. I worked with a sound designer to add music as well.

1. Introduction to genetic genealogy and criminal case

This episode sets up the story that will carry the podcast from piece to piece. It sets the tone and teases some ideas and characters that will be featured throughout the series. We meet Tim Horne, the main character, and hear about a cold case he solved. He’s a local retired detective in North Carolina. The episode gives a bit of an overview of how far criminal technology has progressed and what has changed. And then it begins to introduce the idea of genetic genealogy and how Tim Horne’s case intersects with my reporting.

Scenes/important moments -Audio from billboard -Meeting Tim Horne and his girlfriend at their house -Looking at photos from crime scene -Audio from different sources talking about the Golden State Killer -News clips about the Golden State Killer

2. What is a genetic genealogist?

This episode explains how Tim Horne got a lead in his case using genetic genealogy. Then we meet a genetic genealogist and hear her explain the intricacies of this work. She gives an overview from start to finish about how this genetic sleuthing is used in a criminal case. We then return to Horne to hear about what he does once he is given the name of a relative to his victim.

Scenes/important moments: -Tim Horne talking about meeting Barbara Rae Venter -Genealogists giving tour of home and talking about work

19 3. Legal implications

This episode starts with Tim Horne’s case again and explains the difficulties he faces in obtaining DNA. It then backs up to explain the larger challenges with DNA and privacy. Genetic genealogy has brought the issue of surreptitious sampling to the forefront. This episode explores that idea through various legal experts including two law professors and a defense attorney defending a criminal caught with genetic genealogy.

Scenes/important moments: -Tim Horne talking about meeting Russ Whitt for the first time -Natalie Ram, law professor at Maryland -Chris Leibig, defense attorney

4. The future of this technology

This episode begins with Tim Horne finally closing his case and explaining how this technology is the future of criminal investigations. We flash forward a year to see what has happened since Tim Horne solved his case. This episode features a scene from a fundraiser that also encouraged people to take at-home DNA kits. It features voices of victims who want to use this technology to help solve their loved ones’ case, but also people who are not so sure. It explains that there is a bit of a freak out now in the genetic genealogy world and raises questions about the certainty the future of this technology.

Scenes/important moments: -Tim Horne resolving the case -Project Cold Case fundraiser DNA testing -Victim testimonials -Unsure person -Ancestry CEO

20

Limitations

Audio and audio documentaries, in particular, require scenes and characters. This will be a general challenge to make sure I have compelling sources and authentic interactions or events to cover. The topic doesn’t lend itself easily to scenes, but so far, I have ideas for each of the sections. For the first one about recreational genealogy, I plan to have a scene with an amateur genealogist walking me through the technology. For the pivot to crime, I plan to attend the event in Jacksonville. The biggest challenge will likely be the privacy implications. I have some idea of either going to the restaurant where the suspect’s DNA was collected or considering all the different places and ways we leave our DNA around on a given day.

Another tension in this project is between writing and producing for a traditional news format and writing and producing for a narrative, longform podcast. In typical NPR-style radio there are clear norms around things like introducing speakers and using sound design.

However, a podcast must create a self-contained world that doesn’t simply rest on being newsy.

I’m not necessarily breaking news with my topic, so the project must be compelling enough to stand alone. Consider the difference between a classic New York Times article about an event and how the New Yorker might cover the same story. I spoke with Jason Moon, a reporter at

New Hampshire Public Radio who produced a podcast for the station about genetic genealogy.

He suggested being creative about the introduction of characters, not always having an explicit relationship between source and speaker (this is typically when you’ve already introduced a source before), and including music in the story. It’s important that this project be engaging for the audience, and I think walking the line between creativity and documentary ethics will be a necessary challenge.

21 Lastly, I want to be careful about the exploitation often found in true-crime stories. These narratives are frequently told on the backs of victims’ trauma and pain. My goal will be to steer clear of the potential for sensationalizing yet another story about crimes committed against women and instead focus on what genetic genealogy could mean for the population as a whole.

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