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Establishing Best Practice for Forensic DNA Databases

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Establishing Best Practice for Forensic DNA Databases Establishing best practice for forensic DNA databases September 2017 A report by the Forensic Genetics Policy Initiative: http://dnapolicyinitiative.org/report/ 1 The project This report was developed by the Forensic Genetics Policy Initiative (http://dnapolicyinitiative.org/ ) using an innovative consultative approach. The final report reflects input from civil society groups around the world from a human rights perspective. The project began as a result of civil society concerns about the lack of public input and debate regarding the development and expansion of forensic DNA databases around the world. The seven- year project has included extensive monitoring of press articles and legislation from 132 countries, visits to a number of countries with forensic DNA databases or developing new legislation (including UK, USA, China, India, Brazil, South Korea), and extensive discussion with civil society groups, policy makers, lawyers, forensic scientists and academics from many other countries. The project has taken the innovative and unique approach of developing best practice international standards by engaging civil society in extensive discussion and debate. As a result, this report is the most wide-ranging and definitive analysis of human rights safeguards for forensic DNA databases that is available worldwide. The final process of developing the report was led by a steering committee of twelve people from around the world, plus two observers acting as representatives of the United Nations Special Rapporteur on the right to privacy. Steering Committee members: Adeboye Adegoke (Nigeria) Professor Ghanim Al-Najjar (Kuwait) Tomaso Falchetta (UK/international). Privacy International. Elonnai Hickok (India). Centre for Internet and Society. Professor Sheldon Krimsky (USA). Council for Responsible Genetics. Luiza Louzada (Brazil). Institute of Social Medicine at Rio de Janeiro State University IMS/UERJ. Usha Ramanathan (India). Arthit Suriyawongkul (Thailand). Lee Tien/Jennifer Lynch (USA). Electronic Frontier Foundation. Helen Wallace/Anthony Jackson (UK). GeneWatch UK. As well as providing their own feedback, steering committee members facilitated further engagement with civil society, gathering input from their own stakeholders and further building consensus around the report. The process also included a session at the 38th International Conference of Data Protection and Privacy Commissioners in Marrakesh, 18-22nd October 2016, hosted by the UN Special Rapporteur on Privacy, and another at RightsCon in Brussels, 29-31st March 2017, where the project presented draft best practice guidelines for feedback and discussion. Additional organisations and individuals consulted included: Aaron Amankwaa (Ghana), Adedapo Adejumo (Nigeria), American Civil Liberties Union (USA), Chinmayi Arun (India), BC Civil Liberties Association (Canada), Pascal Borry (Belgium), Bytes for All (Pakistan), Center for Democracy in Science and Technology (South Korea), Manpreet Dhillon (India), Gen-ethisches Netzwerk (Germany), Human Rights Watch, Innocence Project (USA), Instituto Nupef (Brazil), International 2 Commission on Missing Persons, Irish Council for Civil Liberties, KELIN (Kenya), Dylan Lim (Malaysia), Helena Machado (Portugal), Carole McCartney (UK); Yves Moreau (Belgium); Carly Nyst (UK/Australia); Pablo Palazzi (Argentina), Privacidade Brasil, Wafa Ben Hassine (Tunisia).Other consultees preferred to remain anonymous. Work undertaken by GeneWatch UK in preparing and publishing this report was supported by a grant from the Foundation Open Society Institute in cooperation with the Information Program of the Open Society Foundations. 3 Contents Introduction ............................................................................................................................................ 6 1. Whose data should be stored on a forensic DNA database? ......................................................... 8 1.1. Collection of DNA .................................................................................................................... 8 1.1.1. Collection of DNA with consent from volunteers ........................................................... 9 1.1.2. Collection of DNA without consent from suspects and convicted persons .................. 11 1.2. Destruction of DNA and linked data ..................................................................................... 13 1.2.1. Destruction of biological samples ................................................................................. 13 1.2.2. Provisions for the automatic deletion of innocent people’s records ........................... 14 1.2.3. Review of data retention and limits on retention of DNA profiles from persons convicted of minor crimes ............................................................................................................ 15 1.2.4. Appeals process against retention of data ................................................................... 15 1.2.5. Deletion of linked data on other databases ................................................................. 16 1.2.6. Exceptions for national security .................................................................................... 17 1.2.7. Retention of crime scene evidence ............................................................................... 17 2. Safeguards for the process of collecting DNA ............................................................................... 17 2.1. Collection of biological samples ............................................................................................ 17 2.2. Provision of information for all persons from whom DNA is taken ...................................... 18 2.3. Minimising the potential for racial bias ................................................................................ 19 3. Safeguards for the analysis of DNA ............................................................................................... 20 3.1. Collection of DNA from crime scenes and protection of the chain of custody .................... 20 3.2. Laboratory quality assurance ................................................................................................ 20 3.3. Provision, status and oversight of forensic laboratories ...................................................... 21 3.4. DNA profiling standards ........................................................................................................ 22 3.5. Elimination databases for police or other staff who might contaminate samples ............... 23 4. Safeguards for the storage and uses of DNA and linked data ...................................................... 23 4.1. Stored forensic DNA profiles should be restricted to non-coding DNA................................ 23 4.2. Separation of criminal and non-criminal databases (e.g. missing persons’ databases) ....... 24 4.3. Requirements for independent and transparent governance .............................................. 25 4.4. Access restrictions and accuracy and security of data ......................................................... 26 4.5. Restrictions on uses of stored data....................................................................................... 28 4.6. Restrictions on the use of familial searching ........................................................................ 29 5. Safeguards for the use of DNA evidence in court ......................................................................... 30 5.1. Use of DNA evidence in court ............................................................................................... 30 5.2. Access to DNA evidence in the event of an appeal .............................................................. 31 4 6. Safeguards for the international sharing of DNA evidence .......................................................... 31 7. Relevant safeguards must be prescribed by law and there should be appropriate penalties for abuse ..................................................................................................................................................... 32 8. Police access to genetic databases established for non-criminal purposes ................................. 33 9. Resources and priorities must be considered at the outset ......................................................... 34 References ............................................................................................................................................ 35 Annex A: Examples of Consent Requirements in DNA Database Legislation ....................................... 46 Annex B: Examples of Legislative Provisions for Collection of DNA Without Consent ......................... 48 Annex C: Examples of Provisions for the Destruction of Biological Samples........................................ 52 Annex D: Examples of Expungement Requirements for Data Collected from Innocent Persons......... 54 Annex E: Limits on Retention of DNA Profiles from Persons Convicted of Minor Crimes .................... 61 Annex F: Examples of Provisions for the Deletion of Data on Request ................................................ 63 Annex G: Example Provisions for the Collection of Samples ................................................................ 64 Annex H: Examples of Provisions Regarding Vulnerable Persons ......................................................... 68 Annex I: Examples of Provision of Information for Persons from whom DNA is Taken
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