January 17, 2024 • 60 mins
Today’s guest Prof. Natalie Ram specializes in examining the intersection between the advancements in forensic genealogy, and its role in the criminal justice system. For 15 years, Prof. Ram has made a case that forensic genetic genealogy raises constitutional and ethical concerns, including 4th amendment violations, based on the lack of voluntariness in genetic relatedness. More specifically, Sara and Jim ask about the protocols (and oversights) that are involved with determining the perpetrator of a crime based on their genetic relationships. They take a deep dive into how the courts and law enforcement are defining the word ‘voluntary’, and also question what aspects of the 4th Amendment are regularly being violated. Later in the podcast they break down two significant cases that Prof. Ram relies on: Carpenter vs US, and State of Maryland vs Andrews. The show wraps with a focus on a burdensome benefit: the role of IGG in exonerating the wrongfully convicted.
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Music – Caleb Fletcher
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Music – Caleb Fletcher
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Episode Transcript
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(00:22):
Hello, everyone, Welcome back tothe Presumption. I'm Sarah Azari, joined
by my co host Jim Griffin.Hi Jim, Hey, Sarah, and
Matt Our producer. And today wereally have a special guest, Natalie Ram,
professor of Law with us. WelcomeNatalie, Hello, thanks for having
(00:42):
me, and you know we've onthis podcast. An issue that's been really
interesting for Jim and I because wehave not had it come up yet in
our own cases, has been theissue of IgG, also known as fg
GM. I correct Natalie that they'reinterchangeable forensic genetic genealogy and investigative genetic genealogy.
(01:06):
Yeah, it has many names.We've had IgG, FGG, FGGS,
FIGG. Depending on who you ask, you get a different a different
acronym. Right, So, solast night Jim was toxing me saying,
we wait FGG because we've been referringit to this IgG, and you know
on this podcast we say whatever wewant. I was like, well,
(01:26):
f in genetic genealogy. I waslike, it's the same as IgG.
But anyway, just an intro forthose of you who don't know Natalie and
haven't read her wonderful work. Sheis a professor of Law at the University
of Maryland Francis King Carey School ofLaw, and atject Faculty at the Burman
(01:47):
Institute of Bioethics at Johns Hopkins University. Professor Ram is a leading scholar on
the intersection of genetic privacy and thecriminal legal system. Her work has been
published in both law reviews and scientificjournals, including Harvard Law Review, Virginia
Law Review, Texas Law Review,Science and Nature Biotechnology. She was a
(02:07):
twenty twenty one Greenwall Faculty Scholar inBioethics and is an elected member of the
American Law Institute. Before joining MarilynCaree Law, Professor Ram clerk for Judge
Guido Calabressi, US Supreme Court ofAppeals for the Second Circuit and for Associate
Justice Stephen Bryer, one of ourfavorites US Supreme Court. She earned her
(02:28):
jd. At Yale Law School andher undergraduate degree in Public and International Affairs
at Princeton University. So, Natalie, you know, among your very brilliant
arguments in all these articles that you'vewritten, only some of which that I've
gotten to so far before this interview, there are a few that were really
(02:49):
significant for us you know, forone, like I said, neither of
us have had this issue come up. You know, we've had a lot
of DNA obviously, but play arole in our own cases. So it's
good. It's a good learning curvefor us. But there are cases that
we follow in the news and thatour audience is really fascinated by, like
(03:13):
Gilgo Coburger. And of course wehaven't talked about the Golden State Killer,
but that was sort of one ofthe bigger cases that shed light on this
IgG. So we have a lotof questions, but we're going to give
you the mic, and I'm gonnalet Jim start with the first topic or
question. Yeah. Sure, Hey, Natalie, nice to meet you,
(03:36):
to meet Yeah, Sarah mentioned theGolden State Killer case that was a serial
murder and rapist in California who eludedcapture in the seventies and eighties. And
apparently, you know, as asscience developed, genetics developed, they were
able to find some DNA sample thathad never been used in a freezer,
and then they just you know,created a profile, right and logged on
(04:00):
to some open source genealogy database,and they were able to locate a distant
relative. Is that right? Soit's not quite that simple. So you're
right that the genetic forensic science hasadvanced a lot over the last forty years,
(04:24):
on thirty to forty years. Soyou know, when DNA forensics was
first getting its start in the earlynineties, that's when we had states just
beginning to start to collect DNA fromindividuals who were convicted of certain exceptionally heinous
offenses. It was mostly sexual offenses. Those were the cases where you would
(04:46):
have the best DNA samples from thecrime scene, from a rape kit,
and those really cases that were bestable to be solved choosing genetic data.
And so states started to pass lawsto say we're going to keep certain people's
DNA on file if they've committed aparticular kind of offense what's called a qualifying
(05:08):
offense. That all got formalized inthe mid nineties into what's called codis,
the combined DNA in I'm sure you'refamiliar with that. What happens with IgG
is really quite different than what happenswith CODIS, right, So we're looking
at not we law enforcement when they'redoing IgG is looking at a different database,
(05:32):
right, It's not looking anymore atpeople who have committed a qualifying offense,
people who have had some past interactionwith the criminal legal system, been
convicted or now arrested for a particularkind of crime. These are people who
you know, have used a twentythree and meter kit and then uploaded their
data to another platform, or youknow, did their DNA their their recreational
(05:58):
DNA testing, not through twenty threeand meters, but say through a service
like family Tree DNA or my Heritage, which both accepts third party data uploads
and also will do the analysis foryou. So it's a totally different database
composed of a different kind of population. Right. It's not a population of
people who have had a criminal history. It's people who you know, are
(06:18):
just ordinary members of the public,some of whom undoubtedly have a criminal history,
but that's not why they're in thatdatabase. And they're in that database
because they've done one of these tests, or as actually is often the case
with IgG, you know, theperson who's arrested doesn't have their own cellular
(06:42):
data in the database. Instead,it's some distant cousin of theirs, right,
But that our DNA among our andbetween our genetic relatives is still similar
enough that you can identify me eventhough I've never used one of these tests
through say my third cousin, right, And part of that, the reason
why you can identify someone from throughsuch a distant genetic relative is that the
(07:06):
data that's being examined is a verydifferent kind of data. So if we're
talking about codas profiles, we're talkingabout non coding DNA in what's called STRs.
These are kind of like real snuttersin the DNA, right They and
the FBI says they've really purposefully andintentionally selected DNA markers that are in non
(07:27):
coding DNA. They don't have anymedical relevance as far as we know.
Right. The more we learn aboutDNA, the more we realize maybe that's
only a matter of time. Right. The DNA being used in these consumer
genetics platforms. You're twenty three andmeters your family tree, DNAs and the
like are hundreds of thousands of DNAdata points across all different parts of DNA
(07:51):
coding and non coding alike. Right, And so it's just so much more
information rich in some instances review reallysensitive medically relevant data as well as a
sprawling family tree. Right. SoI think that's one really important thing to
understand when we're thinking about what's reallynew about IgG, it's using a different
(08:15):
type of database for investigative law enforcementpurposes, and the kind of data that's
in those databases is really different andthe population in that database. And also,
yeah, go ahead, just sounderstand. I mean, if I
do a buckle swab on me andyou know, submit it to the twenty
three and meters, it's the samebuckle swab that law enforcement would do on
(08:37):
an inmate or by court order.But what you're saying is when it goes
to the lab, the lab,the criminal forensic lab is only looking at
the str which is you know,they say that's the junk DNA and the
DNA chain, and then if itgoes to a genetic lab, it's a
much broader analysis of the DNA.Is that right? Yeah, that's right.
(09:01):
Though we should you know, inthe interest of full being precise and
in the interest of being really precise, well we should know. Twenty three
and me makes you give a reallybig spit swab, not a buckle swab.
But yeah, it's still a DNAsample by math. Is that because
the on the genetic side, theythey create a what they call a SNIP
(09:24):
instead of the SDR. That's right. So SDRs are what we have when
we're talking about codis profiles snips.You know, that's s NP that stands
for single nucleotide polymorphism. It's onebase pair and that three billion base pair
chain that is the human genome,right, one single base that differs from
(09:48):
one person to another. Now,let's be really clear, all human beings
are more than ninety nine point ninepercent genetically identical, but that still leaves
millions of snip where we vary,and that is responsible for the amazing genetic
variability we see in the human population. Right, both our medical risks or
(10:11):
medical features, also our differences inappearance that are due to genetic differences,
right, And so you know we'reall extremely genetically similar, but where we're
different, we're still different enough thatit can be The DNA can be an
amazingly powerful identifier when it's done properly, so not badly. Do you know
(10:35):
if there are you know, certifiedlaw enforcement forensic labs, you know,
any like South Carolina We have alab at SLID and they do their own
DNA testing, and I'm sure everystate has similars and we have them at
the local level as well. Butare there state labs that do the snips
(10:56):
as well or does all that haveto be outsourced to these private companies.
So today nearly all of it isoutsourced. There are some labs that are
beginning to bring that in house.I know, the Florida Department of Law
Enforcement, the FDL, which hashistorically been kind of at the leading edge
of genetic forensics, I think isnow doing some of that in lab or
(11:20):
in house, but I'm not onehundred percent certain about that. I wouldn't
be surprised to see more of thatcome in house in the near future.
But up until now, the vastmajority of it is being farmed out or
contracted out to outside labs and outsidegenealogists for the most part. Well,
and that's also that's you know,giving das and prosecutors the ability to shield
(11:46):
discoverability and because they argue that wedidn't do the testing, you know,
and we sent it out, andit's like, well, just because you
farm it out doesn't mean that youknow it's not discoverable. But you are
arguing, Natalie, that there's adisjunction between genetic relatedness and voluntariness. And
(12:09):
the challenges that this disjunction poses forlaw enforcement use of consumer genetic platforms.
Tell us what you mean by geneticrelatedness, voluntariness, and this problematic disjunction.
Yeah, So, as I said, in the vast majority nearly all
of the cases in which IgG hasled to an arrest thus far, the
(12:31):
person who's ultimately arrested and charged witha crime isn't actually the person who put
their DNA profile into one of theseconsumer genetics platforms. It's some genetic relative
of theirs. Right. The numberone argument that we hear from law enforcement
and from practitioners of IgG, thegenetic genealogists themselves, for why it's totally
(12:54):
fine in their view for law enforcementto use IgG, to use these con
emer genetics platforms for their investigative purposes, is that the DNA on those platforms
has been volunteered, Right, thatnobody's been forced to put their DNA into
those platforms, And because it's volunteered, therefore there's no Fourth Amendment claim there.
(13:16):
Now it's essensial like, yeah,using consent as the Fourth Amendment lingo,
because that's the theory. Right.I've argued in some work that in
fact, that argument is questionable evenwith respect to the people who are using
those platforms, if they are notaware of and consenting to law enforcement you
(13:39):
specifically, right, So twenty threeand meters says law enforcement is not welcome,
and we have practical barriers that keeplaw enforcement. Now, we don't
take those third party data uploads,and people therefore reasonably believe and expect that
their data on twenty three and meterswill not be available for law enforcement purposes.
Right. And I think you knowthis. I thought that all of
(14:01):
these platforms have an option where youno oh oh, no no. So
the two largest players in the fieldand I should be clearer. This is
a matter that has been in fluxover time, and what we say today
is not guaranteed to be true tomorrowbecause terms of service can be changed by
(14:24):
online service providers at any time,with or without explicit notice to users.
Right. So, there's a majorproblem dealing with consent to contractual changes to
the terms of service in just aboutanything online. It's true for Facebook Meta,
it's true for anything where you're likeclicking I accept without reading that terms
of service. There's almost certain tobe a provision in there that says by
(14:48):
the way. We can change thisat any time, and like, if
you keep using your service, youare assumed to have consented to whatever changes
we make. So I just wantto flag that since twenty eighteen, since
the arrest of the Golden State killthe arrest in the Golden State killer case,
right which sort of kickstarted this wholeIgG feel twenty three in MEI Ancestry
dot Com have both said law enforcementis not welcome, we don't want them
(15:13):
here, and we promise we're goingto fight law enforcement if they try to
get in. Right. So that'sbeen true for the last five and a
half years. Again, I can'tpredict the future, but they those two
services appear to see it in theirown financial and economic interest to exclude law
enforcement. Right. So there,So there are two major platforms that cooperate
(15:41):
openly with law enforcement. That's GEDMatchand Family Tree DNA. Both of those
now have an option that says,you know, do you want to be
part of what we call love whatthey call family Match. The familial matching
service right gen Match had some earlybumps in the road where they first they
(16:03):
opted everyone into law enforcement use,then they opted everyone who had an existing
profile out of law enforcement use.Then they created a matching option which now
you have to select into or outof when you join the service, at
least with respect to investigations where lawenforcement is looking for a perpetrator. If
what law enforcement is trying to dois identify an unidentified human remains case,
(16:30):
then in fact you can't opt outof that on jed match, right though.
Of course, if you identify unidentifiedhuman remains often that will give you
some clue about who the perpetrator mightbe. So I don't think the division
between unidentified human remains cases and perpetratorcases is as clean as gen match would
(16:52):
like to present it as being.So what is the you know, I'm
not clear on what the protocol isfor FBI, For example, I know
that they're only allowed to access certaindatabases for this type of family tree investigation.
What are those databases if you knowthat the FBI can use? So
(17:15):
the FBI has an interim policy fromtwenty nineteen that says that anyone in federal
law enforcement or anyone who has agrant from the federal government specifically earmarked for
IgG work can only use those fundsor only conduct investigations in platforms that give
explicit notice to platform users that lawenforcement may be using the platform, So
(17:37):
that would be jed match and FamilyTreat DNA, family Tree DNA being the
other major service that has that sortof family matching service and open cooperation with
law enforcement that said law enforcement.Unclear whether that includes federal law enforcement,
but at least some law enforcement entitieshave also made use of a platform called
(18:00):
my Heritage. The terms of servicethat my Heritage say, if you are
law enforcement, you are not welcomehere. Do not use our platform for
law enforcement purposes. But because theplatform will accept data developed elsewhere, law
enforcement can just lie and say,oh yeah, I'm just this is totally
my DNA that I got from twentythree ae meter or wherever, and it's
(18:25):
not at all a law enforcement relateduse, and then they can make matches
in the my Heritage database. SoMy Heritage has a policy on the books
that says no law enforcement, butmore difficulty as a practical matter policing that
what it's worth. This is alsotrue at family Tree DNA and at ged
match, both of which say ifyour law enforcement, you have to go
(18:45):
through our law enforcement protocol, soyou only make matches with people who have
opted in or failed to opt outof law enforcement matching. But of course,
if law enforcement decides they're happy enoughto lie about the source of the
DNA and say it's not law enforcementDNA, then they're able to upload the
data just like anybody else and makematches in the full database. So that's
(19:07):
the disjunction that you're talking about.Well, so that's part of the disjunction,
and I'm I'm sorry to be alittle like this is great to bring
this back to the disjunction that I'vebeen talking about in my writing. Right,
Again, most of the people whoare being arrested aren't people who have
actually done the DNA testing and puttheir data on one of these platforms.
(19:29):
Instead, they're genetic relatives of thoseindividuals. And here's the disjunction. We
don't choose our genetic relatives. There'sliterally nothing voluntary about our genetic relationships with
our family members, with perhaps oneexception. Right, if I choose to
have a child, I am insome sense consenting to put my genetic information
(19:53):
in the hands of another human beingand they can use there our share DNA
to ident So maybe it's true thatchildren can rat out their parents, right,
But Lord knows. We don't chooseour genetic parents. My kids didn't
choose me. We don't choose oursiblings, how many of them we have.
We don't choose our aunts, uncles, or cousins. And yet each
(20:15):
and every one of those individuals hasDNA that can be used to learn about
or identify us. And so ifthe argument for why law enforcement can use
these consumer genetics platforms is based onvoluntariness, that voluntariness argument ends the minute
we start looking beyond the actual individualswho have uploaded their DNA to the platform,
(20:37):
and we start looking at their geneticrelatives who are implicitly identifiable through our
commonly shared DNA by virtue of ourrelatedness. So that's the disjunction that I'm
talking about. Yeah, it's prettymess up. Okay, Jim to you
on that. Yeah, you knowthe legal and ethical dilemmas involved in in
(21:00):
this whole database. I think you'reprobably touching on those those now, right.
But so let me ask you sortof the Devil's advocates. So you
know, I put my sample inthe DNA database, and you know I
agree for law enforcement to use it. What's the difference between that and my
(21:21):
agreement to go down to the policedepartment and tell law enforcement every relative that
I know about. I mean thatin that the argument against what you're saying.
So I think those are similar insome ways but really importantly different in
others. Right. How many geneticrelatives are you sure you know about and
that you could identify for law enforcement? Right? You know, you,
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you might know your maybe you knowyour first cousins, Maybe you know some
second cousins. You might even knowsome third cousins. But you've got hundreds
of third cousins, and beyond fourthcousins, fifth cousins, right, thousands
of people that you may not beaware of. Right. So number one,
the sprawling tree that is identifiable throughDNA is much more sprawling than our
(22:08):
social relationships. The other part ofit is that our social relationships may in
some sense be thrust upon us,but they're also voluntarily undertaken and maintained.
So if I decide, let's saywe're cousins Jim, and I decide I
don't really want you knowing about mebecause I don't trust you, I can
estrange myself from you. I cancut off that social relationship. I can
(22:32):
unfriend you on Facebook or whatever socialmedia platform we might have had a connection
with, and took her two yearsbefore she talked to me again. I
can't cut I'm sorry. So Ican cut off that social relationship, but
there is no way that you cancut off a genetic relationship. It is
(22:53):
immutable. You can't change your DNA, you can't change those those by a
line ties between genetic relatives. Andso I think that those relationships are really
importantly different, both because they're moresprawling the genetic relationships to include people that
you may not even know exist.In fact, that's often the case,
(23:17):
right and there's no way out ofthem if you if you could sever those
genetic ties, right then we mightsay, well, you fail to sever
your genetic ties, so therefore youin some sense consented to them right now.
That's a very thin notion of voluntariness. But the law sometimes uses very
kind of thin and weak notions ofvoluntariess. But we don't even have that
(23:38):
here. There's literally no way tosever that genetic relatedness tie. That is
a relationship you didn't choose and youcan't change, and you can't practically manage
because the family tree that can beused to identify you is so sprawling.
It includes thousands of individuals, manyof whom you don't even know exist on
(24:00):
this on this whole issue consent andinvoluntaries is that you're talking about. I
mean, this is when I wasreally taking a deep dive into coburger.
It just reeked of Fourth Amendment concerns. And yet the DA was saying the
state was the state prosecutor was saying, well, you know, we're not
(24:21):
bringing in the IgG. The IgGwas an informant. Oh, Jim and
I were laughing at that. Butanyway, the IgG was an informant.
We're not bringing that in as evidenceat trials. So you know, there's
really nothing to exclude. It's notmaterial, you don't get to have it.
And so in some ways, Iguess this idea that a relative consented
(24:41):
is supposedly curing this issue. Weknow it's not. But you cite to
two cases to support, you know, your constitutional concerns. One is Carpenter
versus Us, a Supreme Court decisionwhich stands for the third party doctrine and
privacy rights. And then a MarylandSupreme Court case, State versus Andrews,
that actually has to do with stingrydevices and Fourth Amendment harm related to that.
(25:07):
Can you elaborate for us on youknow, the real Fourth Amendment constitutional
concerns around this, you know,besides what you've just said. Yeah,
so, I think if it isestablished, right, and it's by no
means certain that it would be established. But I've argued in my scholarship that
there is a Fourth Amendment wrong thatis committed when IgG is undertaken, at
(25:33):
the very least when it's used toidentify genetic relatives of people who have put
their DNA in the database, ifnot in some instances even people who have
themselves put their DNA on a databasethat excludes law enforcement. Right. So
if that is a Fourth Amendment injury, right, that's a constitutional violation.
Then the question becomes whether any otherevidence that would be introduced in core is
(26:00):
the fruit of that poisonous tree.Right. So there are some exceptions to
the fruit of the poisonous tree doctrine, but in basic terms, in case
your audience isn't super familiar with thatdoctrine, it's the idea that if there
is a constitutional violation, not onlyis the evidence or information obtained through the
(26:21):
unconstitutional search excludable from evidence, butso too is anything that flows but for
it in a fashion from from thatunconstitutional search, right, with a few
exceptions. So so if there ifIgG violates the Fourth Amendment, then then
(26:45):
further on downstream DNA that was compelledor collected from the suspect the defendant might
be tainted as the fruit of thatpoisonous tree. Now, law enforcement will
argue that, say, there's anindependent source, right, there's some other
(27:08):
path that they could have followed tocome to suspect the defendant in an individual
case. And so because there's thatindependent path untainted by the constitutional violation,
that therefore whatever they're going to introducein court ultimately is you know, safe,
(27:29):
it's not going to be tainted asfruit of the business search right now,
you know, law enforcement and saythe Coburger case very strategically left out
any mention of IgG in all oftheir affidavits, perhaps in an effort to
keep anybody from knowing that IgG wasbeing used because it's still a quite controversial
(27:52):
new practice, and in part perhapsto try to support their assertion later that
there's a different path, an independenceworth that they could use to get to
Coburger. Well, Natalie, toyour point on that they and this is
what I've always been arguing about this, is that they came up with the
(28:12):
car that he's not seen driving thecar. He's the registered owner of a
car that looks like the car that'sseen on surveillance footage. But initially the
car was one make and model,then it changed to a different make and
model that matched him as a restroner. And to this day we don't know
whether this informant that's the IgG,whether that came in first and then the
(28:36):
car got corrected, or whether thecar came in and it matters, right,
So yeah, yeah, you mightreally wonder if they initially used IgG
to identify the suspect and then workedbackwards from the kind of ex post creates
an alternate evidentiary path, right inorder to try to sever a search.
(29:02):
If IgG is a search and nonconstitutionalsearch, as I argue that it is
right from the evidence that they wantto introduce in court, right, So
that's one piece of it. Now, the Carpenter case goes to whether or
not IgG itself is an unconstitutional search. The Carpenter case is about cell phone
location data, which might seem reallydifferent from DNA, but I actually think
(29:23):
has some strong similarities, particularly giventhe analysis that the court gives in the
Carpenter case. So that case isfrom twenty eighteen. It was decided about
six weeks after the Golden State killerwas arrested. So these two practices,
both both the kind of Carpenter revolutionand Fourth Amendment law such as it is
(29:45):
and IgG itself, kind of areborn in the same spring. And in
Carpenter, the court says, youknow, since the seventies, we've said
that if you share your data withsome third part prety service provider, then
well, that data couldn't have beenvery private. You couldn't have expected that
(30:07):
it would be private, and thereforeyou don't have a Fourth Amendment expectation of
privacy. It's not a Fourth Amendmentsearch for law enforcement to access that.
And by the way, when youshared it, you assume the risk that
whoever you shared it with was goingto sell you out to the cops,
and therefore ditto, no Fourth Amendmentsearch at all. The Fourth Amendment just
(30:29):
doesn't care about that. Now,the cases in the nineteen seventies they kind
of created what we call the thirdparty doctrine, were about a pen register,
what telephone numbers you dial at atime when the telephone company was much
more involved in connecting phones, right, or cheaping those records and your bank
records, your checkbook, your checkbookrecords. Right. And then of course
(30:53):
in the last you know, twentyyears especially, we get and thirty years
since the dawn of the Internet,we enter what Justice Kennedy now no longer
on the bench, but what sheonce called the cyber age, right,
the Internet age, where everything wedo goes through some sort of third party
intermediary. Our emails, don't youknow? Our correspondence doesn't go through the
(31:18):
US Postal service. It goes throughGoogle if you use Gmail or some other
third party service provider. Our textmessages are now written, they're not phone
conversations, right, So everything we'redoing is moving through some kind of third
party intermediary. Right. When Iwould go to the library and do research,
(31:40):
that is now stuff I'm looking upon Google, right, And so
Google or alphabet has all that dataabout me, right, And so the
question became in Carpenter, can wereally adhere to this idea that so long
as your data is moving through somethird party intermediary, you voluntarily assume the
risk that whoever has that data isgoing to sell you out to the cops.
(32:04):
And is it really true that youhave no Fourth Amendment interest in that
data? And Carpenter comes along andsays, yeah, we're not really comfortable
with that in the modern age.And it does so in the context of
cell phone usage. Right, Sowhat it says is that having a cell
phone and using it and keeping iton, even if you know that it's
(32:28):
connecting and pinging off of cell towersevery couple of seconds or every couple of
minutes, right, that's not youvoluntarily undertaking the risk that your cell phone
company is going to share all thatdata with law enforcement. You do have
an expectation of privacy in your physicalmovements as revealed by your cell phone location
(32:51):
data. Court implies doesn't hold,but implies strongly that your email contents,
despite moving through your your service provider, are also protected by the Fourth Amendment.
And so then the question, ofcourse is what else is like cel
phone location data? Well, thecourt gives us some guide rail, some
guideposts for that analysis. Right.They want to know how sensitive is the
(33:16):
data it's being accessed the law enforcementwould access. They want to know against
what portion of the population would thatdata be accessible? Right? How many
people can law enforcement kind of followaround by using a particular data source.
They want to know how quick andeasy is it to run that search?
(33:38):
Right? Can you do it withjust the click of a button? Right?
Those sorts of features. And theywant to know about voluntariness. How
voluntary is your use of a particularservice. So think about let's say our
genetic relatives. I didn't upload myDNA to family Tree DNA, but my
third cousin did. Well, ifyou're looking in that database for everyone that's
(34:04):
in that database and everyone out totheir third or fourth cousin, that includes,
by one statistical estimate, once youhave two million people in the database,
more than sixty percent of Americans ofEuropean descent. If you can access
say four or five million profiles,you can cover more than ninety percent of
Americans of European descent. That's me, that's everyone, basically everybody, Right,
(34:31):
Oh can I I just want tojump in and ask a question,
which is has any of this DNAevidence ever? Is it like irrefutable or
is there a margin of air?Like could We're all saying this is the
Golden State Killer. But based onwhat you were saying earlier, couldn't it
actually have been his fourth cousin,who shares ninety nine percent of the same
(34:52):
genetic profile. So it's almost certainnot to be his fourth cousin because there
will be genetic differences between him andhis fourth cousin, and ind kate that
it's definitely not the fourth cousin,but it might be say the Golden State
Killer or his brother right, orsome number of fourth cousins around the family
tree. Right now, if youask the genealogist, they'll tell you we're
(35:12):
never wrong, and if we are, by the way, the law enforcement's
going to go pick up that suspectstrash and make a one to one match
before they arrest someone. But ofcourse they'll they'll never go pick up that
person's trash if they don't already suspectthem, right, even if the trash
shows that it's not that guy,that in fact the IgG led them to
the wrong person, which by theway, it did initially in the Golden
(35:35):
State Killer, base went and collectedDNA from another man before they got around
to the actual Golden State killer.Right, That DNA from that trash that
DNA profile is probably gonna live foreveron a local DNA database held by the
law enforcement entity. Right. Ido want to get back to Carpenter though,
because I do think that right.So, when we're thinking about these
(35:59):
consumers platforms, as I said earlier, the kind of DNA that we're talking
about can include and can disclose reallysensitive medical data. Law enforcement and genetic
genealogists will tell you they're not lookingat the individual level snips, so they
can't really tell the medically relevant data. That is true and not so true.
(36:19):
There are folks in the field whosay you can work backwards from shared
segments to infer medically relevant information,so potentially highly sensitive information, and DNA
is of course highly sensitive. Thisis a search that's going to effectively run
against everyone in the US population.You can run that search against everyone in
(36:45):
the database. And as I said, we don't voluntarily share our genetic data
with our genetic relatives. So ifyou're thinking about that Carpenter standard, it's
as true for genetic data and relativesgenetic relative of data, even more so
than it is for for your cellphone location data. But let me ask
(37:07):
you this with with Carpenter if you'retalking about cell phone data, are you.
I mean, if I'm if I'msuspected of committing a crime and I've
sent illicit text messages to Jim,they can get a search warrant. They
could, and they can you know, look at well I don't. I
(37:27):
mean, it depends if it's anI message or an SMS or whatever it
is. But they can certainly accessmy emails subpoena, Google and all that
stuff. So really what we're talkingabout here is the involuntary right, in
other words, involuntary accessing as opposedto via a subpoena. Well, a
(37:49):
subpoena or a warrant, right oryeah? Question? Then you know in
Carpenter, you know, Justice Robertssays, a subpoena, it's not good.
You Gott and Sarah and Carpenter.And it was self on location data.
And and there was a federal statutethat says you could get it from
(38:12):
a carrier if you had some somelevel of proof and you made an application,
and they did that, and whatwas challenged was, well that that's
not a search one. You've gotto have a one. And and and
the significance was, as I understandit, Natalie, is that it was
equivalent to GPS data. And sowhat we're talking about in Carpenter is is
(38:35):
where your PHAM peans off a tower. And so the state was saying,
well, that just gives you acone an area of distance, and it's
not that accurate. And they heldthe stuff for five years, and so
you can go five years of timeand and I really liked some of the
language and the Carpenter and talked about, well, you know, not only
we have to predict, you know, address what's happening now, but we
(38:59):
have to sort of predict what what'sgoing to happen ten years from now.
And the oones are getting smaller becausethere are more towers going up to Natalie.
Look, there's nothing like having alaw professor hetting everybody. But Jim
is my Walking West law. Yeah. Literally, I can ask if anything
(39:20):
and he'll you know, cite thedescent. You know, it was a
really interesting case. I recommend itas great reading. Anyone interested in the
modern Fourth Amendment? Yeah, no, because it's it's really becoming smaller and
smaller, right almost. And Natalie, before you came on, I did
research to try to find some youknow where Carpenter has been applied to this
(39:44):
genealogy and I couldn't find any cases. Are you aware of anything? So
there are, so there are some. Mostly what has happened is that courts
have said, well, it wasn'tyour DNA that was uploaded to the platform,
it was your cousin's DNA, andtherefore you don't have standing to challenge
(40:05):
the search, right because you didn'tupload your own DNA. Now, of
course that's kind of that's kind ofthe point of my whole argument about the
disjunction between voluntariness and genetic relatedness.Right, it was my cousin was the
one who uploaded their DNA, butyou used it to learn about and identify
me and our relationship to each other. It was a product of involuntary biology.
(40:29):
Right. Carpenter has an answer tothis too. By the way,
Carpenter says that mister Carpenter, thecriminal defendant in that case, had an
expectation of privacy in his cell phonelocation data, even though the cell phone
location records were held by the cellphone company as their property, as their
business record. And so what itmeans is that even if information is held
(40:54):
or even owned by another person,if it is if it is sensitive and
informative about me, then I mighthave an expectation of privacy in it.
Now, I will concede it isa little weird to think about me having
an expectation of privacy in my cousin'sDNA, but that is, you know,
(41:16):
that's an inevitable product. I thinkof like the language that we use
in the Fourth Amendment space and theways in which DNA relationships between genetic relatives
are just really really hard for thelaw to describe. We are not used
to having relationships that are totally involuntarilythrust upon us. We're used to relationships
(41:40):
where if my information is shared withsomeone, there's at least some measure of
voluntariness. It might be that reallythin notion of voluntariness, that very weak
notion voluntariness, like I have acell phone, I carry it around,
but of course it reject that inCarpenter and here it's even less than that.
Right now, I did want tocome back to the Andrews point because
(42:01):
I think that connects up to whatyou said earlier about the Coburger case,
which is that in State versus Andrews, that's a Maryland State Supreme Court Decision
I Believe, in which the Courtholds that it is a Fourth Amendment violation
for law enforcement to have intentionally andpersistently failed to disclose their use of an
(42:25):
advanced technological tool for investigation for criminalinvestigations, like a stingray device. A
stingray device is designed to kind ofgather up all the kind of identifiers of
any cell phone in the area ofthe stingray device. So it helps you
track where someone is if you knowthe kind of identifier of their particular cell
(42:47):
phone unit right their their particular phone. And in that case, the FBI
had basically required all local law enforcementto basically not clothes in their affidavits,
search warrant, or otherwise pen register, et cetera, that they were using
a stingray device. Law enforcement hadin fact, in that case applied for
(43:08):
a pen register and kind of hiddenthe fact that under the pen register authorization
they were going to use a stingraydevice, which is not a pen register.
And the Court there said, no, no, no. When you
undertake such efforts to shield a pieceof technology from the Court's own knowledge,
(43:30):
that deprives both the Court of itsopportunity to assess the constitutionality of that technology
and the defense of its right tomount a defense, and I think in
that way it can be quite similarto what we've seen in the IgG space
right, where law enforcement has beenquite careful in many cases, not all
(43:52):
of them, but many cases tojust leave out any mention of IgG.
They've you know, law enforcement hasoffered a number of justifications for leaving it
out of the affidavits. As Isaid, I think in part, it's
in order to create this alternate evidentiarypath. So they argue that even if
(44:13):
there is a fourth amend of violationin the IgG, that that you know,
there's a severing of these dependent independentsource not fruit of the poisonous try
right or or law enforcement has said, you know, we're we really don't
want people to know that we're doingIgG, because if people know we're doing
IgG, maybe they'll be creeped outand they won't put as much DNA on
(44:35):
these consumer genetics platforms, to whichI say, if your whole pitch is
that people are voluntarily sharing DNA withlaw enforcement, then hiding that because you
hear that people won't consent is kindof you know, or it's telling me
you don't actually believe people are rarelysharing with law enforcement, right, So
(45:00):
you know that seems to me iswhat happened or happening in the Coburger case.
I mean in the search, warn'taffidavit, they don't really play up
the IgG and they say, oh, we did, we did a search
of the trash and we got DNAfrom the trash and that's how we that
that's our source. Yeah. Sowhat's interesting is that, at least in
(45:21):
some of the earlier cases using IgG, say in twenty eighteen, twenty nineteen,
when this was just starting to rampup, you would have a press
conference. There would be a pressconference right in which the DA or the
arresting officer would come out and explain, oh, we found this guy through
(45:42):
IgG called IgG. They would describeit using some other phrase or whatever,
but they would say, the guywe arrested was never on our radar.
We never would have suspected him butfor the IgG. And I think I
think that's telling. Yeah, Ithink that's really telling that the IG is
(46:05):
really the thing that's driving these investigations. Well, and Coburger, I mean
I've only am only familiar with ahandful of trial court rulings, one being
in California Northern California, where repeatedlythe trial court denies the defense motion for
discovery for IgG materials, and inCoburger at least the judge, my understanding
(46:30):
is, has conducted an in cameraand has ruled that some of them we
don't know what, but at leastsome of these materials have been deemed to
be relevant to Coworger's defense and aregoing to be disclosed under seal to the
defense. But you mentioned that thatin this sort of context of lack of
(46:52):
transparency on this issue, that there'srumors that the Gilgo Beach, the rex
Hureman case also was cracked through someIGGM. To me, that case has
such strong DNA evidence, it's like, do you really need IgG? I
mean, do you know how IgGplays and that plays out in that case?
I don't. I don't. Andas you said, the best I
(47:15):
can I can say about that isthat I've heard some background rumors from some
people in the IgG practitioner community suggestingthat there may have been IgG in that
case as well. Now that's literallyall as much as much as I know,
and and there's been no confirmation ofthat. If it turns out that
(47:37):
that is the case, that therewas a IgG used in that case too.
Look that what that indicates is thatthere are substantial efforts by law enforcement
not to disclose the use of Imean, law enforcement seems really proud of
this new method that they have.Not sure why they're going to such great
(48:00):
lengths to keep it secret. Actually, since you know, the reasons that
law enforcement often refuses to disclose alaw enforcement investigative method is in part because
of fears that that criminal defendants willfind a way to circumvent that method.
But I mean, here a it'sbeing used largely in cold cases where the
(48:22):
DNA is available or not already,and going forward, you know, if
we're thinking about criminal defendants trying toavoid identification, they're trying to avoid depositing
DNA of any kind at any crimescene now. And so I'm not sure
that that IgG is really changing thatyou know, circumvention calculus in so far
(48:49):
that as criminal defendants might actually bethinking about that. It seems to me
you have these private labs that youknow, probably don't have to to the
same standards as a certified you know, criminal laboratory run by the state,
and the risk of cross contamination orwho knows what, and yeah, you
know that's a real issue I suspect. Yeah, so I'm glad that you
(49:12):
raised that point. And that connectsback to Matt's question earlier about whether there
are error rates that are being reportedfor this. As I mentioned, if
you ask the genetic genealogists, they'llsay, we're never wrong. But of
course no forensic method has a zeropercent error rate, you know, And
there are instances in which, saythe genetic genealogy will identify a small number
(49:39):
of suspects, all of which willthen be kind of followed around and have
their trash collected to make that kindof one to one comparison. But cases
are coming and soon, if notalready underway, in which the DNA that
was recovered from the crime scene isdegraded enough, are of small enough quantity
(50:00):
that you can only test it onetime, really pull one crime scene profile
off of it. And so they'renot going to pull an str profile.
They're only going to pull this ina profile, and if that outside lab
doesn't do it right, you mightget a really really solid good match that
is to the to the wrong person. It looks it's a great DNA match,
(50:22):
but it turns out the DNA analysiswas done poorly and therefore you're putting
the wrong person. We're definitely interestedin those cases when they come out,
do share them with us. Thisis such a fascinating issue. But you
know, I want to close withIgG or FGG in wrongful conviction cases because
you know, we know from thework that Barry Sheck is doing with the
(50:45):
Innocence Project, and then also betalking to CC Moore who's done some of
that work with folks like Barry,that there's also that benefit of you know,
you know, exonerating someone who's beenwrong awfully convicted. But it's not
that easy. Please explain. Sowhen we're talking about exonerations, I think
(51:07):
it's worth noting here that not kindof the policy landscape here, which is
a really interesting and developing one.And so you and I have talked or
we've talked about the FBI interim policy. In addition, there are at least
three states that have laws on thebooks now that regulate IgG, so Maryland
(51:29):
has a comprehensive regulatory scheme. Iwas really honored to play a role in
being a part of a working groupthat led to that legislation. Utah watered
down Maryland's law and past a weakerversion, but still has some legislation in
(51:51):
place. And then Montana has avery very short law that basically says you
need a warrant for this or consentright. Both the Maryland and the Utah
laws have provisions providing for exoneration usepost conviction use. The platforms often say
(52:15):
you can do law enforcement related stuffif you are law enforcement, which by
the way, then requires post convictioncouncil to get the cooperation of the prosecution
the you know, the district Attorney'soffice, the prosecutor's office in order to
(52:36):
move forward with post conviction IgG testingnumber one. Under the Maryland and Utah
laws, at least under the Marylandlaw, that kind of cooperation is not
u You don't have to seek thevoluntary cooperation of the prosecutor if you're post
conviction council, if you qualify acork in order that that be under it.
So Maryland is really at the forefronthere. I'm really proud of the
(52:59):
work we've done in Mayorland on regulatingIgG, you know, making it available
for its best and most justifiable usecases. But also you know, significantly
regulating it to make sure that lawenforcement is playing by reasonable rules. But
in jurisdictions that are not like Marylandand you, John, you're where you're
(53:21):
at the mercy of a prosecutor,a prosecutor who doesn't really want your guy
out, That's right, That's right. So that's one major problem, right,
that it can be really difficult,and this is true for DNA evidence
in post conviction settings all over thecountry. Right, But since IgG is
new, you may have even moredifficulty of obtaining the cooperation of the local
(53:43):
prosecutor. And the other part ofit is just generally you know the fact
that IgG has been used for exoneration. What does that mean? What does
it mean to use IgG for exoneration? Well, what that means is that
the Innocence Project and the netic genealogistsworking with them not only demonstrated that there
(54:05):
was a mismatch between the crime sceneDNA profile and the person that was actually
convicted of the that was convicted ofthe crime who is actually innocent, those
two profiles definitely don't match. Thatappears not to have been enough to secure
the release of that wrongly convicted person. Instead, that wrongly convicted person and
their post conviction council, their innocencecouncil had to do more. They had
(54:29):
to undertake IgG in order to findthe actual perpetrator of Oh my lord.
So what that means effectively is that, you know, this isn't unique to
the IgG space, but I thinkwhat we're seeing in in like the exoneration
argument related to IgG, that IgGis great because it can be used for
(54:50):
exonerations too. I mean, yeah, it can, But the fact that
it's needed is simply a reflection ofthe extraordinary burden that we put wrongly convicted
individuals, not merely to prove thatthey didn't do it, but to identify
the person who actually did it,to do the prosecutor and the investigating you
(55:10):
know, law enforcement officers job forthem. But better well, Jim,
maybe, Jim, you've got tokeep Natalie's number on hand, because maybe
we can get some IgG going.In the murder case, we can get
his wrong full conviction overturn. He'sgetting all sorts of injustices thrown his way.
(55:36):
So, Natalie, it has beenan absolute pleasure to have you on.
I mean, I learned so muchin this hour, and I know
that someday soon we're going to beneeding to consult with you on our cases.
So we will stay in touch.And i'd love to get the cases
too that you're talking about coming downthe pipeline on this issue. Yeah,
(56:00):
we're still it's been five years,but it is still the early days of
the IgG field. It's how longhave you been doing this where you told
me it was like fifteen years old. Yeah. So I've been writing about
familial genetic relatedness and criminal investigation sincetwo thousand and eight, which has been
(56:20):
in the waning days of the Bushadministration. The Bush administration outgoing kind of
put in place a new rule thatleft open the possibility of doing familial identification
in CODIS that ended up not happening. The FBI doesn't do familial identification in
CODIS, but many states do,and that's what that rulemaking was related to.
(56:43):
And I said, that doesn't seemright. If the reason why someone's
DNA is in CODIS is because theycommitted a crime, that shouldn't allow you
to identify their family member as asuspect. And I think, as I
said, the same thing is trueto the kind of the nth degree.
When we're talking about IgG. Yeah, it's really fascinating. And you know,
(57:05):
it just it just dawned on meas you were talking that. I
remember in law school there was someelective offered. This is a long time
ago on you know, the lawand bioethics or something, and I was
like, I'm not taking that.What's that excited for it? Like,
I'm never going to use that.Like what do I need to know about
that? Yeah, and here weare in this era of my god.
(57:29):
I mean it's uh, forensic technologyhas really taken on increasing significance over the
last thirty years. Now, whetherit deserves to be called science a forensic
science, it's a different story.I have a colleague who writes a lot
(57:51):
about how we shouldn't call forensic sciencescience at all. And you know,
look, DNA evidence can be exceptionallyprobative. It really can be a silver
bullet if it's done properly, ifit's done well, if it's done responsibly,
if it's done lawfully. But themoral of the story for things to
(58:15):
go wrong. Yeah, and Ithink you know, we've accepted it as
this bullet proof. I mean,even you know, in our field,
our knee jerk reaction whenever we discoverthere's DNA and our kids are like,
gosh, you know, but butyou know, you go through the process,
you consult, you try to figureout what potentially has gone wrong,
(58:37):
and you know, to your pointabout the science, whether it's a science
the forensics. That's another way thatthat prosecutors are dealing with IgG is by
divorcing the snip extraction from the familytree investigation to be able to say that
the snip part may be kind ofscience, but the family tree is just
(58:58):
an investigative tool. So there forit's not signed. So that's a way
that they're getting around producing the discoveryon this is that it's not science,
so we don't have to you know, it doesn't fall under our discovery statute
or whatnot. Anyway, it's beenwonderful having you. It's and and I
hope that you stay in touch,and I think we can have many more
(59:20):
conversations on this as things do.Thank you so much, Natalie. Thank
you, And just before we signoff, one and remind everybody to please
subscribe to our podcast. It's calledThe Presumption. We're on all the podcast
platforms and you can watch us onYouTube, YouTube dot com, slash at
the presumption again, Natalie, thankyou very much. I do feel like
we're a hair away from Minority Report. We're even just thinking about doing a
(59:44):
crime. You will go to praiseit for it. It is fucking terrifying,
but yes, great episode to everybodyand until next time, Jim Sarah. We rest
Hello, everyone, Welcome back tothe Presumption. I'm Sarah Azari, joined
by my co host Jim Griffin.Hi Jim, Hey, Sarah, and
Matt Our producer. And today wereally have a special guest, Natalie Ram,
professor of Law with us. WelcomeNatalie, Hello, thanks for having
(00:42):
me, and you know we've onthis podcast. An issue that's been really
interesting for Jim and I because wehave not had it come up yet in
our own cases, has been theissue of IgG, also known as fg
GM. I correct Natalie that they'reinterchangeable forensic genetic genealogy and investigative genetic genealogy.
(01:06):
Yeah, it has many names.We've had IgG, FGG, FGGS,
FIGG. Depending on who you ask, you get a different a different
acronym. Right, So, solast night Jim was toxing me saying,
we wait FGG because we've been referringit to this IgG, and you know
on this podcast we say whatever wewant. I was like, well,
(01:26):
f in genetic genealogy. I waslike, it's the same as IgG.
But anyway, just an intro forthose of you who don't know Natalie and
haven't read her wonderful work. Sheis a professor of Law at the University
of Maryland Francis King Carey School ofLaw, and atject Faculty at the Burman
(01:47):
Institute of Bioethics at Johns Hopkins University. Professor Ram is a leading scholar on
the intersection of genetic privacy and thecriminal legal system. Her work has been
published in both law reviews and scientificjournals, including Harvard Law Review, Virginia
Law Review, Texas Law Review,Science and Nature Biotechnology. She was a
(02:07):
twenty twenty one Greenwall Faculty Scholar inBioethics and is an elected member of the
American Law Institute. Before joining MarilynCaree Law, Professor Ram clerk for Judge
Guido Calabressi, US Supreme Court ofAppeals for the Second Circuit and for Associate
Justice Stephen Bryer, one of ourfavorites US Supreme Court. She earned her
(02:28):
jd. At Yale Law School andher undergraduate degree in Public and International Affairs
at Princeton University. So, Natalie, you know, among your very brilliant
arguments in all these articles that you'vewritten, only some of which that I've
gotten to so far before this interview, there are a few that were really
(02:49):
significant for us you know, forone, like I said, neither of
us have had this issue come up. You know, we've had a lot
of DNA obviously, but play arole in our own cases. So it's
good. It's a good learning curvefor us. But there are cases that
we follow in the news and thatour audience is really fascinated by, like
(03:13):
Gilgo Coburger. And of course wehaven't talked about the Golden State Killer,
but that was sort of one ofthe bigger cases that shed light on this
IgG. So we have a lotof questions, but we're going to give
you the mic, and I'm gonnalet Jim start with the first topic or
question. Yeah. Sure, Hey, Natalie, nice to meet you,
(03:36):
to meet Yeah, Sarah mentioned theGolden State Killer case that was a serial
murder and rapist in California who eludedcapture in the seventies and eighties. And
apparently, you know, as asscience developed, genetics developed, they were
able to find some DNA sample thathad never been used in a freezer,
and then they just you know,created a profile, right and logged on
(04:00):
to some open source genealogy database,and they were able to locate a distant
relative. Is that right? Soit's not quite that simple. So you're
right that the genetic forensic science hasadvanced a lot over the last forty years,
(04:24):
on thirty to forty years. Soyou know, when DNA forensics was
first getting its start in the earlynineties, that's when we had states just
beginning to start to collect DNA fromindividuals who were convicted of certain exceptionally heinous
offenses. It was mostly sexual offenses. Those were the cases where you would
(04:46):
have the best DNA samples from thecrime scene, from a rape kit,
and those really cases that were bestable to be solved choosing genetic data.
And so states started to pass lawsto say we're going to keep certain people's
DNA on file if they've committed aparticular kind of offense what's called a qualifying
(05:08):
offense. That all got formalized inthe mid nineties into what's called codis,
the combined DNA in I'm sure you'refamiliar with that. What happens with IgG
is really quite different than what happenswith CODIS, right, So we're looking
at not we law enforcement when they'redoing IgG is looking at a different database,
(05:32):
right, It's not looking anymore atpeople who have committed a qualifying offense,
people who have had some past interactionwith the criminal legal system, been
convicted or now arrested for a particularkind of crime. These are people who
you know, have used a twentythree and meter kit and then uploaded their
data to another platform, or youknow, did their DNA their their recreational
(05:58):
DNA testing, not through twenty threeand meters, but say through a service
like family Tree DNA or my Heritage, which both accepts third party data uploads
and also will do the analysis foryou. So it's a totally different database
composed of a different kind of population. Right. It's not a population of
people who have had a criminal history. It's people who you know, are
(06:18):
just ordinary members of the public,some of whom undoubtedly have a criminal history,
but that's not why they're in thatdatabase. And they're in that database
because they've done one of these tests, or as actually is often the case
with IgG, you know, theperson who's arrested doesn't have their own cellular
(06:42):
data in the database. Instead,it's some distant cousin of theirs, right,
But that our DNA among our andbetween our genetic relatives is still similar
enough that you can identify me eventhough I've never used one of these tests
through say my third cousin, right, And part of that, the reason
why you can identify someone from throughsuch a distant genetic relative is that the
(07:06):
data that's being examined is a verydifferent kind of data. So if we're
talking about codas profiles, we're talkingabout non coding DNA in what's called STRs.
These are kind of like real snuttersin the DNA, right They and
the FBI says they've really purposefully andintentionally selected DNA markers that are in non
(07:27):
coding DNA. They don't have anymedical relevance as far as we know.
Right. The more we learn aboutDNA, the more we realize maybe that's
only a matter of time. Right. The DNA being used in these consumer
genetics platforms. You're twenty three andmeters your family tree, DNAs and the
like are hundreds of thousands of DNAdata points across all different parts of DNA
(07:51):
coding and non coding alike. Right, And so it's just so much more
information rich in some instances review reallysensitive medically relevant data as well as a
sprawling family tree. Right. SoI think that's one really important thing to
understand when we're thinking about what's reallynew about IgG, it's using a different
(08:15):
type of database for investigative law enforcementpurposes, and the kind of data that's
in those databases is really different andthe population in that database. And also,
yeah, go ahead, just sounderstand. I mean, if I
do a buckle swab on me andyou know, submit it to the twenty
three and meters, it's the samebuckle swab that law enforcement would do on
(08:37):
an inmate or by court order.But what you're saying is when it goes
to the lab, the lab,the criminal forensic lab is only looking at
the str which is you know,they say that's the junk DNA and the
DNA chain, and then if itgoes to a genetic lab, it's a
much broader analysis of the DNA.Is that right? Yeah, that's right.
(09:01):
Though we should you know, inthe interest of full being precise and
in the interest of being really precise, well we should know. Twenty three
and me makes you give a reallybig spit swab, not a buckle swab.
But yeah, it's still a DNAsample by math. Is that because
the on the genetic side, theythey create a what they call a SNIP
(09:24):
instead of the SDR. That's right. So SDRs are what we have when
we're talking about codis profiles snips.You know, that's s NP that stands
for single nucleotide polymorphism. It's onebase pair and that three billion base pair
chain that is the human genome,right, one single base that differs from
(09:48):
one person to another. Now,let's be really clear, all human beings
are more than ninety nine point ninepercent genetically identical, but that still leaves
millions of snip where we vary,and that is responsible for the amazing genetic
variability we see in the human population. Right, both our medical risks or
(10:11):
medical features, also our differences inappearance that are due to genetic differences,
right, And so you know we'reall extremely genetically similar, but where we're
different, we're still different enough thatit can be The DNA can be an
amazingly powerful identifier when it's done properly, so not badly. Do you know
(10:35):
if there are you know, certifiedlaw enforcement forensic labs, you know,
any like South Carolina We have alab at SLID and they do their own
DNA testing, and I'm sure everystate has similars and we have them at
the local level as well. Butare there state labs that do the snips
(10:56):
as well or does all that haveto be outsourced to these private companies.
So today nearly all of it isoutsourced. There are some labs that are
beginning to bring that in house.I know, the Florida Department of Law
Enforcement, the FDL, which hashistorically been kind of at the leading edge
of genetic forensics, I think isnow doing some of that in lab or
(11:20):
in house, but I'm not onehundred percent certain about that. I wouldn't
be surprised to see more of thatcome in house in the near future.
But up until now, the vastmajority of it is being farmed out or
contracted out to outside labs and outsidegenealogists for the most part. Well,
and that's also that's you know,giving das and prosecutors the ability to shield
(11:46):
discoverability and because they argue that wedidn't do the testing, you know,
and we sent it out, andit's like, well, just because you
farm it out doesn't mean that youknow it's not discoverable. But you are
arguing, Natalie, that there's adisjunction between genetic relatedness and voluntariness. And
(12:09):
the challenges that this disjunction poses forlaw enforcement use of consumer genetic platforms.
Tell us what you mean by geneticrelatedness, voluntariness, and this problematic disjunction.
Yeah, So, as I said, in the vast majority nearly all
of the cases in which IgG hasled to an arrest thus far, the
(12:31):
person who's ultimately arrested and charged witha crime isn't actually the person who put
their DNA profile into one of theseconsumer genetics platforms. It's some genetic relative
of theirs. Right. The numberone argument that we hear from law enforcement
and from practitioners of IgG, thegenetic genealogists themselves, for why it's totally
(12:54):
fine in their view for law enforcementto use IgG, to use these con
emer genetics platforms for their investigative purposes, is that the DNA on those platforms
has been volunteered, Right, thatnobody's been forced to put their DNA into
those platforms, And because it's volunteered, therefore there's no Fourth Amendment claim there.
(13:16):
Now it's essensial like, yeah,using consent as the Fourth Amendment lingo,
because that's the theory. Right.I've argued in some work that in
fact, that argument is questionable evenwith respect to the people who are using
those platforms, if they are notaware of and consenting to law enforcement you
(13:39):
specifically, right, So twenty threeand meters says law enforcement is not welcome,
and we have practical barriers that keeplaw enforcement. Now, we don't
take those third party data uploads,and people therefore reasonably believe and expect that
their data on twenty three and meterswill not be available for law enforcement purposes.
Right. And I think you knowthis. I thought that all of
(14:01):
these platforms have an option where youno oh oh, no no. So
the two largest players in the fieldand I should be clearer. This is
a matter that has been in fluxover time, and what we say today
is not guaranteed to be true tomorrowbecause terms of service can be changed by
(14:24):
online service providers at any time,with or without explicit notice to users.
Right. So, there's a majorproblem dealing with consent to contractual changes to
the terms of service in just aboutanything online. It's true for Facebook Meta,
it's true for anything where you're likeclicking I accept without reading that terms
of service. There's almost certain tobe a provision in there that says by
(14:48):
the way. We can change thisat any time, and like, if
you keep using your service, youare assumed to have consented to whatever changes
we make. So I just wantto flag that since twenty eighteen, since
the arrest of the Golden State killthe arrest in the Golden State killer case,
right which sort of kickstarted this wholeIgG feel twenty three in MEI Ancestry
dot Com have both said law enforcementis not welcome, we don't want them
(15:13):
here, and we promise we're goingto fight law enforcement if they try to
get in. Right. So that'sbeen true for the last five and a
half years. Again, I can'tpredict the future, but they those two
services appear to see it in theirown financial and economic interest to exclude law
enforcement. Right. So there,So there are two major platforms that cooperate
(15:41):
openly with law enforcement. That's GEDMatchand Family Tree DNA. Both of those
now have an option that says,you know, do you want to be
part of what we call love whatthey call family Match. The familial matching
service right gen Match had some earlybumps in the road where they first they
(16:03):
opted everyone into law enforcement use,then they opted everyone who had an existing
profile out of law enforcement use.Then they created a matching option which now
you have to select into or outof when you join the service, at
least with respect to investigations where lawenforcement is looking for a perpetrator. If
what law enforcement is trying to dois identify an unidentified human remains case,
(16:30):
then in fact you can't opt outof that on jed match, right though.
Of course, if you identify unidentifiedhuman remains often that will give you
some clue about who the perpetrator mightbe. So I don't think the division
between unidentified human remains cases and perpetratorcases is as clean as gen match would
(16:52):
like to present it as being.So what is the you know, I'm
not clear on what the protocol isfor FBI, For example, I know
that they're only allowed to access certaindatabases for this type of family tree investigation.
What are those databases if you knowthat the FBI can use? So
(17:15):
the FBI has an interim policy fromtwenty nineteen that says that anyone in federal
law enforcement or anyone who has agrant from the federal government specifically earmarked for
IgG work can only use those fundsor only conduct investigations in platforms that give
explicit notice to platform users that lawenforcement may be using the platform, So
(17:37):
that would be jed match and FamilyTreat DNA, family Tree DNA being the
other major service that has that sortof family matching service and open cooperation with
law enforcement that said law enforcement.Unclear whether that includes federal law enforcement,
but at least some law enforcement entitieshave also made use of a platform called
(18:00):
my Heritage. The terms of servicethat my Heritage say, if you are
law enforcement, you are not welcomehere. Do not use our platform for
law enforcement purposes. But because theplatform will accept data developed elsewhere, law
enforcement can just lie and say,oh yeah, I'm just this is totally
my DNA that I got from twentythree ae meter or wherever, and it's
(18:25):
not at all a law enforcement relateduse, and then they can make matches
in the my Heritage database. SoMy Heritage has a policy on the books
that says no law enforcement, butmore difficulty as a practical matter policing that
what it's worth. This is alsotrue at family Tree DNA and at ged
match, both of which say ifyour law enforcement, you have to go
(18:45):
through our law enforcement protocol, soyou only make matches with people who have
opted in or failed to opt outof law enforcement matching. But of course,
if law enforcement decides they're happy enoughto lie about the source of the
DNA and say it's not law enforcementDNA, then they're able to upload the
data just like anybody else and makematches in the full database. So that's
(19:07):
the disjunction that you're talking about.Well, so that's part of the disjunction,
and I'm I'm sorry to be alittle like this is great to bring
this back to the disjunction that I'vebeen talking about in my writing. Right,
Again, most of the people whoare being arrested aren't people who have
actually done the DNA testing and puttheir data on one of these platforms.
(19:29):
Instead, they're genetic relatives of thoseindividuals. And here's the disjunction. We
don't choose our genetic relatives. There'sliterally nothing voluntary about our genetic relationships with
our family members, with perhaps oneexception. Right, if I choose to
have a child, I am insome sense consenting to put my genetic information
(19:53):
in the hands of another human beingand they can use there our share DNA
to ident So maybe it's true thatchildren can rat out their parents, right,
But Lord knows. We don't chooseour genetic parents. My kids didn't
choose me. We don't choose oursiblings, how many of them we have.
We don't choose our aunts, uncles, or cousins. And yet each
(20:15):
and every one of those individuals hasDNA that can be used to learn about
or identify us. And so ifthe argument for why law enforcement can use
these consumer genetics platforms is based onvoluntariness, that voluntariness argument ends the minute
we start looking beyond the actual individualswho have uploaded their DNA to the platform,
(20:37):
and we start looking at their geneticrelatives who are implicitly identifiable through our
commonly shared DNA by virtue of ourrelatedness. So that's the disjunction that I'm
talking about. Yeah, it's prettymess up. Okay, Jim to you
on that. Yeah, you knowthe legal and ethical dilemmas involved in in
(21:00):
this whole database. I think you'reprobably touching on those those now, right.
But so let me ask you sortof the Devil's advocates. So you
know, I put my sample inthe DNA database, and you know I
agree for law enforcement to use it. What's the difference between that and my
(21:21):
agreement to go down to the policedepartment and tell law enforcement every relative that
I know about. I mean thatin that the argument against what you're saying.
So I think those are similar insome ways but really importantly different in
others. Right. How many geneticrelatives are you sure you know about and
that you could identify for law enforcement? Right? You know, you,
(21:44):
you might know your maybe you knowyour first cousins, Maybe you know some
second cousins. You might even knowsome third cousins. But you've got hundreds
of third cousins, and beyond fourthcousins, fifth cousins, right, thousands
of people that you may not beaware of. Right. So number one,
the sprawling tree that is identifiable throughDNA is much more sprawling than our
(22:08):
social relationships. The other part ofit is that our social relationships may in
some sense be thrust upon us,but they're also voluntarily undertaken and maintained.
So if I decide, let's saywe're cousins Jim, and I decide I
don't really want you knowing about mebecause I don't trust you, I can
estrange myself from you. I cancut off that social relationship. I can
(22:32):
unfriend you on Facebook or whatever socialmedia platform we might have had a connection
with, and took her two yearsbefore she talked to me again. I
can't cut I'm sorry. So Ican cut off that social relationship, but
there is no way that you cancut off a genetic relationship. It is
(22:53):
immutable. You can't change your DNA, you can't change those those by a
line ties between genetic relatives. Andso I think that those relationships are really
importantly different, both because they're moresprawling the genetic relationships to include people that
you may not even know exist.In fact, that's often the case,
(23:17):
right and there's no way out ofthem if you if you could sever those
genetic ties, right then we mightsay, well, you fail to sever
your genetic ties, so therefore youin some sense consented to them right now.
That's a very thin notion of voluntariness. But the law sometimes uses very
kind of thin and weak notions ofvoluntariess. But we don't even have that
(23:38):
here. There's literally no way tosever that genetic relatedness tie. That is
a relationship you didn't choose and youcan't change, and you can't practically manage
because the family tree that can beused to identify you is so sprawling.
It includes thousands of individuals, manyof whom you don't even know exist on
(24:00):
this on this whole issue consent andinvoluntaries is that you're talking about. I
mean, this is when I wasreally taking a deep dive into coburger.
It just reeked of Fourth Amendment concerns. And yet the DA was saying the
state was the state prosecutor was saying, well, you know, we're not
(24:21):
bringing in the IgG. The IgGwas an informant. Oh, Jim and
I were laughing at that. Butanyway, the IgG was an informant.
We're not bringing that in as evidenceat trials. So you know, there's
really nothing to exclude. It's notmaterial, you don't get to have it.
And so in some ways, Iguess this idea that a relative consented
(24:41):
is supposedly curing this issue. Weknow it's not. But you cite to
two cases to support, you know, your constitutional concerns. One is Carpenter
versus Us, a Supreme Court decisionwhich stands for the third party doctrine and
privacy rights. And then a MarylandSupreme Court case, State versus Andrews,
that actually has to do with stingrydevices and Fourth Amendment harm related to that.
(25:07):
Can you elaborate for us on youknow, the real Fourth Amendment constitutional
concerns around this, you know,besides what you've just said. Yeah,
so, I think if it isestablished, right, and it's by no
means certain that it would be established. But I've argued in my scholarship that
there is a Fourth Amendment wrong thatis committed when IgG is undertaken, at
(25:33):
the very least when it's used toidentify genetic relatives of people who have put
their DNA in the database, ifnot in some instances even people who have
themselves put their DNA on a databasethat excludes law enforcement. Right. So
if that is a Fourth Amendment injury, right, that's a constitutional violation.
Then the question becomes whether any otherevidence that would be introduced in core is
(26:00):
the fruit of that poisonous tree.Right. So there are some exceptions to
the fruit of the poisonous tree doctrine, but in basic terms, in case
your audience isn't super familiar with thatdoctrine, it's the idea that if there
is a constitutional violation, not onlyis the evidence or information obtained through the
(26:21):
unconstitutional search excludable from evidence, butso too is anything that flows but for
it in a fashion from from thatunconstitutional search, right, with a few
exceptions. So so if there ifIgG violates the Fourth Amendment, then then
(26:45):
further on downstream DNA that was compelledor collected from the suspect the defendant might
be tainted as the fruit of thatpoisonous tree. Now, law enforcement will
argue that, say, there's anindependent source, right, there's some other
(27:08):
path that they could have followed tocome to suspect the defendant in an individual
case. And so because there's thatindependent path untainted by the constitutional violation,
that therefore whatever they're going to introducein court ultimately is you know, safe,
(27:29):
it's not going to be tainted asfruit of the business search right now,
you know, law enforcement and saythe Coburger case very strategically left out
any mention of IgG in all oftheir affidavits, perhaps in an effort to
keep anybody from knowing that IgG wasbeing used because it's still a quite controversial
(27:52):
new practice, and in part perhapsto try to support their assertion later that
there's a different path, an independenceworth that they could use to get to
Coburger. Well, Natalie, toyour point on that they and this is
what I've always been arguing about this, is that they came up with the
(28:12):
car that he's not seen driving thecar. He's the registered owner of a
car that looks like the car that'sseen on surveillance footage. But initially the
car was one make and model,then it changed to a different make and
model that matched him as a restroner. And to this day we don't know
whether this informant that's the IgG,whether that came in first and then the
(28:36):
car got corrected, or whether thecar came in and it matters, right,
So yeah, yeah, you mightreally wonder if they initially used IgG
to identify the suspect and then workedbackwards from the kind of ex post creates
an alternate evidentiary path, right inorder to try to sever a search.
(29:02):
If IgG is a search and nonconstitutionalsearch, as I argue that it is
right from the evidence that they wantto introduce in court, right, So
that's one piece of it. Now, the Carpenter case goes to whether or
not IgG itself is an unconstitutional search. The Carpenter case is about cell phone
location data, which might seem reallydifferent from DNA, but I actually think
(29:23):
has some strong similarities, particularly giventhe analysis that the court gives in the
Carpenter case. So that case isfrom twenty eighteen. It was decided about
six weeks after the Golden State killerwas arrested. So these two practices,
both both the kind of Carpenter revolutionand Fourth Amendment law such as it is
(29:45):
and IgG itself, kind of areborn in the same spring. And in
Carpenter, the court says, youknow, since the seventies, we've said
that if you share your data withsome third part prety service provider, then
well, that data couldn't have beenvery private. You couldn't have expected that
(30:07):
it would be private, and thereforeyou don't have a Fourth Amendment expectation of
privacy. It's not a Fourth Amendmentsearch for law enforcement to access that.
And by the way, when youshared it, you assume the risk that
whoever you shared it with was goingto sell you out to the cops,
and therefore ditto, no Fourth Amendmentsearch at all. The Fourth Amendment just
(30:29):
doesn't care about that. Now,the cases in the nineteen seventies they kind
of created what we call the thirdparty doctrine, were about a pen register,
what telephone numbers you dial at atime when the telephone company was much
more involved in connecting phones, right, or cheaping those records and your bank
records, your checkbook, your checkbookrecords. Right. And then of course
(30:53):
in the last you know, twentyyears especially, we get and thirty years
since the dawn of the Internet,we enter what Justice Kennedy now no longer
on the bench, but what sheonce called the cyber age, right,
the Internet age, where everything wedo goes through some sort of third party
intermediary. Our emails, don't youknow? Our correspondence doesn't go through the
(31:18):
US Postal service. It goes throughGoogle if you use Gmail or some other
third party service provider. Our textmessages are now written, they're not phone
conversations, right, So everything we'redoing is moving through some kind of third
party intermediary. Right. When Iwould go to the library and do research,
(31:40):
that is now stuff I'm looking upon Google, right, And so
Google or alphabet has all that dataabout me, right, And so the
question became in Carpenter, can wereally adhere to this idea that so long
as your data is moving through somethird party intermediary, you voluntarily assume the
risk that whoever has that data isgoing to sell you out to the cops.
(32:04):
And is it really true that youhave no Fourth Amendment interest in that
data? And Carpenter comes along andsays, yeah, we're not really comfortable
with that in the modern age.And it does so in the context of
cell phone usage. Right, Sowhat it says is that having a cell
phone and using it and keeping iton, even if you know that it's
(32:28):
connecting and pinging off of cell towersevery couple of seconds or every couple of
minutes, right, that's not youvoluntarily undertaking the risk that your cell phone
company is going to share all thatdata with law enforcement. You do have
an expectation of privacy in your physicalmovements as revealed by your cell phone location
(32:51):
data. Court implies doesn't hold,but implies strongly that your email contents,
despite moving through your your service provider, are also protected by the Fourth Amendment.
And so then the question, ofcourse is what else is like cel
phone location data? Well, thecourt gives us some guide rail, some
guideposts for that analysis. Right.They want to know how sensitive is the
(33:16):
data it's being accessed the law enforcementwould access. They want to know against
what portion of the population would thatdata be accessible? Right? How many
people can law enforcement kind of followaround by using a particular data source.
They want to know how quick andeasy is it to run that search?
(33:38):
Right? Can you do it withjust the click of a button? Right?
Those sorts of features. And theywant to know about voluntariness. How
voluntary is your use of a particularservice. So think about let's say our
genetic relatives. I didn't upload myDNA to family Tree DNA, but my
third cousin did. Well, ifyou're looking in that database for everyone that's
(34:04):
in that database and everyone out totheir third or fourth cousin, that includes,
by one statistical estimate, once youhave two million people in the database,
more than sixty percent of Americans ofEuropean descent. If you can access
say four or five million profiles,you can cover more than ninety percent of
Americans of European descent. That's me, that's everyone, basically everybody, Right,
(34:31):
Oh can I I just want tojump in and ask a question,
which is has any of this DNAevidence ever? Is it like irrefutable or
is there a margin of air?Like could We're all saying this is the
Golden State Killer. But based onwhat you were saying earlier, couldn't it
actually have been his fourth cousin,who shares ninety nine percent of the same
(34:52):
genetic profile. So it's almost certainnot to be his fourth cousin because there
will be genetic differences between him andhis fourth cousin, and ind kate that
it's definitely not the fourth cousin,but it might be say the Golden State
Killer or his brother right, orsome number of fourth cousins around the family
tree. Right now, if youask the genealogist, they'll tell you we're
(35:12):
never wrong, and if we are, by the way, the law enforcement's
going to go pick up that suspectstrash and make a one to one match
before they arrest someone. But ofcourse they'll they'll never go pick up that
person's trash if they don't already suspectthem, right, even if the trash
shows that it's not that guy,that in fact the IgG led them to
the wrong person, which by theway, it did initially in the Golden
(35:35):
State Killer, base went and collectedDNA from another man before they got around
to the actual Golden State killer.Right, That DNA from that trash that
DNA profile is probably gonna live foreveron a local DNA database held by the
law enforcement entity. Right. Ido want to get back to Carpenter though,
because I do think that right.So, when we're thinking about these
(35:59):
consumers platforms, as I said earlier, the kind of DNA that we're talking
about can include and can disclose reallysensitive medical data. Law enforcement and genetic
genealogists will tell you they're not lookingat the individual level snips, so they
can't really tell the medically relevant data. That is true and not so true.
(36:19):
There are folks in the field whosay you can work backwards from shared
segments to infer medically relevant information,so potentially highly sensitive information, and DNA
is of course highly sensitive. Thisis a search that's going to effectively run
against everyone in the US population.You can run that search against everyone in
(36:45):
the database. And as I said, we don't voluntarily share our genetic data
with our genetic relatives. So ifyou're thinking about that Carpenter standard, it's
as true for genetic data and relativesgenetic relative of data, even more so
than it is for for your cellphone location data. But let me ask
(37:07):
you this with with Carpenter if you'retalking about cell phone data, are you.
I mean, if I'm if I'msuspected of committing a crime and I've
sent illicit text messages to Jim,they can get a search warrant. They
could, and they can you know, look at well I don't. I
(37:27):
mean, it depends if it's anI message or an SMS or whatever it
is. But they can certainly accessmy emails subpoena, Google and all that
stuff. So really what we're talkingabout here is the involuntary right, in
other words, involuntary accessing as opposedto via a subpoena. Well, a
(37:49):
subpoena or a warrant, right oryeah? Question? Then you know in
Carpenter, you know, Justice Robertssays, a subpoena, it's not good.
You Gott and Sarah and Carpenter.And it was self on location data.
And and there was a federal statutethat says you could get it from
(38:12):
a carrier if you had some somelevel of proof and you made an application,
and they did that, and whatwas challenged was, well that that's
not a search one. You've gotto have a one. And and and
the significance was, as I understandit, Natalie, is that it was
equivalent to GPS data. And sowhat we're talking about in Carpenter is is
(38:35):
where your PHAM peans off a tower. And so the state was saying,
well, that just gives you acone an area of distance, and it's
not that accurate. And they heldthe stuff for five years, and so
you can go five years of timeand and I really liked some of the
language and the Carpenter and talked about, well, you know, not only
we have to predict, you know, address what's happening now, but we
(38:59):
have to sort of predict what what'sgoing to happen ten years from now.
And the oones are getting smaller becausethere are more towers going up to Natalie.
Look, there's nothing like having alaw professor hetting everybody. But Jim
is my Walking West law. Yeah. Literally, I can ask if anything
(39:20):
and he'll you know, cite thedescent. You know, it was a
really interesting case. I recommend itas great reading. Anyone interested in the
modern Fourth Amendment? Yeah, no, because it's it's really becoming smaller and
smaller, right almost. And Natalie, before you came on, I did
research to try to find some youknow where Carpenter has been applied to this
(39:44):
genealogy and I couldn't find any cases. Are you aware of anything? So
there are, so there are some. Mostly what has happened is that courts
have said, well, it wasn'tyour DNA that was uploaded to the platform,
it was your cousin's DNA, andtherefore you don't have standing to challenge
(40:05):
the search, right because you didn'tupload your own DNA. Now, of
course that's kind of that's kind ofthe point of my whole argument about the
disjunction between voluntariness and genetic relatedness.Right, it was my cousin was the
one who uploaded their DNA, butyou used it to learn about and identify
me and our relationship to each other. It was a product of involuntary biology.
(40:29):
Right. Carpenter has an answer tothis too. By the way,
Carpenter says that mister Carpenter, thecriminal defendant in that case, had an
expectation of privacy in his cell phonelocation data, even though the cell phone
location records were held by the cellphone company as their property, as their
business record. And so what itmeans is that even if information is held
(40:54):
or even owned by another person,if it is if it is sensitive and
informative about me, then I mighthave an expectation of privacy in it.
Now, I will concede it isa little weird to think about me having
an expectation of privacy in my cousin'sDNA, but that is, you know,
(41:16):
that's an inevitable product. I thinkof like the language that we use
in the Fourth Amendment space and theways in which DNA relationships between genetic relatives
are just really really hard for thelaw to describe. We are not used
to having relationships that are totally involuntarilythrust upon us. We're used to relationships
(41:40):
where if my information is shared withsomeone, there's at least some measure of
voluntariness. It might be that reallythin notion of voluntariness, that very weak
notion voluntariness, like I have acell phone, I carry it around,
but of course it reject that inCarpenter and here it's even less than that.
Right now, I did want tocome back to the Andrews point because
(42:01):
I think that connects up to whatyou said earlier about the Coburger case,
which is that in State versus Andrews, that's a Maryland State Supreme Court Decision
I Believe, in which the Courtholds that it is a Fourth Amendment violation
for law enforcement to have intentionally andpersistently failed to disclose their use of an
(42:25):
advanced technological tool for investigation for criminalinvestigations, like a stingray device. A
stingray device is designed to kind ofgather up all the kind of identifiers of
any cell phone in the area ofthe stingray device. So it helps you
track where someone is if you knowthe kind of identifier of their particular cell
(42:47):
phone unit right their their particular phone. And in that case, the FBI
had basically required all local law enforcementto basically not clothes in their affidavits,
search warrant, or otherwise pen register, et cetera, that they were using
a stingray device. Law enforcement hadin fact, in that case applied for
(43:08):
a pen register and kind of hiddenthe fact that under the pen register authorization
they were going to use a stingraydevice, which is not a pen register.
And the Court there said, no, no, no. When you
undertake such efforts to shield a pieceof technology from the Court's own knowledge,
(43:30):
that deprives both the Court of itsopportunity to assess the constitutionality of that technology
and the defense of its right tomount a defense, and I think in
that way it can be quite similarto what we've seen in the IgG space
right, where law enforcement has beenquite careful in many cases, not all
(43:52):
of them, but many cases tojust leave out any mention of IgG.
They've you know, law enforcement hasoffered a number of justifications for leaving it
out of the affidavits. As Isaid, I think in part, it's
in order to create this alternate evidentiarypath. So they argue that even if
(44:13):
there is a fourth amend of violationin the IgG, that that you know,
there's a severing of these dependent independentsource not fruit of the poisonous try
right or or law enforcement has said, you know, we're we really don't
want people to know that we're doingIgG, because if people know we're doing
IgG, maybe they'll be creeped outand they won't put as much DNA on
(44:35):
these consumer genetics platforms, to whichI say, if your whole pitch is
that people are voluntarily sharing DNA withlaw enforcement, then hiding that because you
hear that people won't consent is kindof you know, or it's telling me
you don't actually believe people are rarelysharing with law enforcement, right, So
(45:00):
you know that seems to me iswhat happened or happening in the Coburger case.
I mean in the search, warn'taffidavit, they don't really play up
the IgG and they say, oh, we did, we did a search
of the trash and we got DNAfrom the trash and that's how we that
that's our source. Yeah. Sowhat's interesting is that, at least in
(45:21):
some of the earlier cases using IgG, say in twenty eighteen, twenty nineteen,
when this was just starting to rampup, you would have a press
conference. There would be a pressconference right in which the DA or the
arresting officer would come out and explain, oh, we found this guy through
(45:42):
IgG called IgG. They would describeit using some other phrase or whatever,
but they would say, the guywe arrested was never on our radar.
We never would have suspected him butfor the IgG. And I think I
think that's telling. Yeah, Ithink that's really telling that the IG is
(46:05):
really the thing that's driving these investigations. Well, and Coburger, I mean
I've only am only familiar with ahandful of trial court rulings, one being
in California Northern California, where repeatedlythe trial court denies the defense motion for
discovery for IgG materials, and inCoburger at least the judge, my understanding
(46:30):
is, has conducted an in cameraand has ruled that some of them we
don't know what, but at leastsome of these materials have been deemed to
be relevant to Coworger's defense and aregoing to be disclosed under seal to the
defense. But you mentioned that thatin this sort of context of lack of
(46:52):
transparency on this issue, that there'srumors that the Gilgo Beach, the rex
Hureman case also was cracked through someIGGM. To me, that case has
such strong DNA evidence, it's like, do you really need IgG? I
mean, do you know how IgGplays and that plays out in that case?
I don't. I don't. Andas you said, the best I
(47:15):
can I can say about that isthat I've heard some background rumors from some
people in the IgG practitioner community suggestingthat there may have been IgG in that
case as well. Now that's literallyall as much as much as I know,
and and there's been no confirmation ofthat. If it turns out that
(47:37):
that is the case, that therewas a IgG used in that case too.
Look that what that indicates is thatthere are substantial efforts by law enforcement
not to disclose the use of Imean, law enforcement seems really proud of
this new method that they have.Not sure why they're going to such great
(48:00):
lengths to keep it secret. Actually, since you know, the reasons that
law enforcement often refuses to disclose alaw enforcement investigative method is in part because
of fears that that criminal defendants willfind a way to circumvent that method.
But I mean, here a it'sbeing used largely in cold cases where the
(48:22):
DNA is available or not already,and going forward, you know, if
we're thinking about criminal defendants trying toavoid identification, they're trying to avoid depositing
DNA of any kind at any crimescene now. And so I'm not sure
that that IgG is really changing thatyou know, circumvention calculus in so far
(48:49):
that as criminal defendants might actually bethinking about that. It seems to me
you have these private labs that youknow, probably don't have to to the
same standards as a certified you know, criminal laboratory run by the state,
and the risk of cross contamination orwho knows what, and yeah, you
know that's a real issue I suspect. Yeah, so I'm glad that you
(49:12):
raised that point. And that connectsback to Matt's question earlier about whether there
are error rates that are being reportedfor this. As I mentioned, if
you ask the genetic genealogists, they'llsay, we're never wrong. But of
course no forensic method has a zeropercent error rate, you know, And
there are instances in which, saythe genetic genealogy will identify a small number
(49:39):
of suspects, all of which willthen be kind of followed around and have
their trash collected to make that kindof one to one comparison. But cases
are coming and soon, if notalready underway, in which the DNA that
was recovered from the crime scene isdegraded enough, are of small enough quantity
(50:00):
that you can only test it onetime, really pull one crime scene profile
off of it. And so they'renot going to pull an str profile.
They're only going to pull this ina profile, and if that outside lab
doesn't do it right, you mightget a really really solid good match that
is to the to the wrong person. It looks it's a great DNA match,
(50:22):
but it turns out the DNA analysiswas done poorly and therefore you're putting
the wrong person. We're definitely interestedin those cases when they come out,
do share them with us. Thisis such a fascinating issue. But you
know, I want to close withIgG or FGG in wrongful conviction cases because
you know, we know from thework that Barry Sheck is doing with the
(50:45):
Innocence Project, and then also betalking to CC Moore who's done some of
that work with folks like Barry,that there's also that benefit of you know,
you know, exonerating someone who's beenwrong awfully convicted. But it's not
that easy. Please explain. Sowhen we're talking about exonerations, I think
(51:07):
it's worth noting here that not kindof the policy landscape here, which is
a really interesting and developing one.And so you and I have talked or
we've talked about the FBI interim policy. In addition, there are at least
three states that have laws on thebooks now that regulate IgG, so Maryland
(51:29):
has a comprehensive regulatory scheme. Iwas really honored to play a role in
being a part of a working groupthat led to that legislation. Utah watered
down Maryland's law and past a weakerversion, but still has some legislation in
(51:51):
place. And then Montana has avery very short law that basically says you
need a warrant for this or consentright. Both the Maryland and the Utah
laws have provisions providing for exoneration usepost conviction use. The platforms often say
(52:15):
you can do law enforcement related stuffif you are law enforcement, which by
the way, then requires post convictioncouncil to get the cooperation of the prosecution
the you know, the district Attorney'soffice, the prosecutor's office in order to
(52:36):
move forward with post conviction IgG testingnumber one. Under the Maryland and Utah
laws, at least under the Marylandlaw, that kind of cooperation is not
u You don't have to seek thevoluntary cooperation of the prosecutor if you're post
conviction council, if you qualify acork in order that that be under it.
So Maryland is really at the forefronthere. I'm really proud of the
(52:59):
work we've done in Mayorland on regulatingIgG, you know, making it available
for its best and most justifiable usecases. But also you know, significantly
regulating it to make sure that lawenforcement is playing by reasonable rules. But
in jurisdictions that are not like Marylandand you, John, you're where you're
(53:21):
at the mercy of a prosecutor,a prosecutor who doesn't really want your guy
out, That's right, That's right. So that's one major problem, right,
that it can be really difficult,and this is true for DNA evidence
in post conviction settings all over thecountry. Right, But since IgG is
new, you may have even moredifficulty of obtaining the cooperation of the local
(53:43):
prosecutor. And the other part ofit is just generally you know the fact
that IgG has been used for exoneration. What does that mean? What does
it mean to use IgG for exoneration? Well, what that means is that
the Innocence Project and the netic genealogistsworking with them not only demonstrated that there
(54:05):
was a mismatch between the crime sceneDNA profile and the person that was actually
convicted of the that was convicted ofthe crime who is actually innocent, those
two profiles definitely don't match. Thatappears not to have been enough to secure
the release of that wrongly convicted person. Instead, that wrongly convicted person and
their post conviction council, their innocencecouncil had to do more. They had
(54:29):
to undertake IgG in order to findthe actual perpetrator of Oh my lord.
So what that means effectively is that, you know, this isn't unique to
the IgG space, but I thinkwhat we're seeing in in like the exoneration
argument related to IgG, that IgGis great because it can be used for
(54:50):
exonerations too. I mean, yeah, it can, But the fact that
it's needed is simply a reflection ofthe extraordinary burden that we put wrongly convicted
individuals, not merely to prove thatthey didn't do it, but to identify
the person who actually did it,to do the prosecutor and the investigating you
(55:10):
know, law enforcement officers job forthem. But better well, Jim,
maybe, Jim, you've got tokeep Natalie's number on hand, because maybe
we can get some IgG going.In the murder case, we can get
his wrong full conviction overturn. He'sgetting all sorts of injustices thrown his way.
(55:36):
So, Natalie, it has beenan absolute pleasure to have you on.
I mean, I learned so muchin this hour, and I know
that someday soon we're going to beneeding to consult with you on our cases.
So we will stay in touch.And i'd love to get the cases
too that you're talking about coming downthe pipeline on this issue. Yeah,
(56:00):
we're still it's been five years,but it is still the early days of
the IgG field. It's how longhave you been doing this where you told
me it was like fifteen years old. Yeah. So I've been writing about
familial genetic relatedness and criminal investigation sincetwo thousand and eight, which has been
(56:20):
in the waning days of the Bushadministration. The Bush administration outgoing kind of
put in place a new rule thatleft open the possibility of doing familial identification
in CODIS that ended up not happening. The FBI doesn't do familial identification in
CODIS, but many states do,and that's what that rulemaking was related to.
(56:43):
And I said, that doesn't seemright. If the reason why someone's
DNA is in CODIS is because theycommitted a crime, that shouldn't allow you
to identify their family member as asuspect. And I think, as I
said, the same thing is trueto the kind of the nth degree.
When we're talking about IgG. Yeah, it's really fascinating. And you know,
(57:05):
it just it just dawned on meas you were talking that. I
remember in law school there was someelective offered. This is a long time
ago on you know, the lawand bioethics or something, and I was
like, I'm not taking that.What's that excited for it? Like,
I'm never going to use that.Like what do I need to know about
that? Yeah, and here weare in this era of my god.
(57:29):
I mean it's uh, forensic technologyhas really taken on increasing significance over the
last thirty years. Now, whetherit deserves to be called science a forensic
science, it's a different story.I have a colleague who writes a lot
(57:51):
about how we shouldn't call forensic sciencescience at all. And you know,
look, DNA evidence can be exceptionallyprobative. It really can be a silver
bullet if it's done properly, ifit's done well, if it's done responsibly,
if it's done lawfully. But themoral of the story for things to
(58:15):
go wrong. Yeah, and Ithink you know, we've accepted it as
this bullet proof. I mean,even you know, in our field,
our knee jerk reaction whenever we discoverthere's DNA and our kids are like,
gosh, you know, but butyou know, you go through the process,
you consult, you try to figureout what potentially has gone wrong,
(58:37):
and you know, to your pointabout the science, whether it's a science
the forensics. That's another way thatthat prosecutors are dealing with IgG is by
divorcing the snip extraction from the familytree investigation to be able to say that
the snip part may be kind ofscience, but the family tree is just
(58:58):
an investigative tool. So there forit's not signed. So that's a way
that they're getting around producing the discoveryon this is that it's not science,
so we don't have to you know, it doesn't fall under our discovery statute
or whatnot. Anyway, it's beenwonderful having you. It's and and I
hope that you stay in touch,and I think we can have many more
(59:20):
conversations on this as things do.Thank you so much, Natalie. Thank
you, And just before we signoff, one and remind everybody to please
subscribe to our podcast. It's calledThe Presumption. We're on all the podcast
platforms and you can watch us onYouTube, YouTube dot com, slash at
the presumption again, Natalie, thankyou very much. I do feel like
we're a hair away from Minority Report. We're even just thinking about doing a
(59:44):
crime. You will go to praiseit for it. It is fucking terrifying,
but yes, great episode to everybodyand until next time, Jim Sarah. We rest
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