Guilt By Genetic Association: The Fourth Amendment and the Search of Private Genetic Databases by Law Enforcement

Abstract

Over the course of 2018, a number of suspects in unsolved crimes have been identified through the use of GEDMatch, a public online genetic database. Law enforcement’s use of GEDMatch to identify suspects in cold cases likely does not constitute a search under the Fourth Amendment because the genetic information hosted on the website is publicly available. Transparency reports from direct-to-consumer (DTC) genetic testing providers like 23andMe and Ancestry suggest that federal and state officials may now be requesting access to private genetic databases as well. Whether law enforcement’s use of private DTC genetic databases to search for familial relatives of a suspect’s genetic profile constitutes a search within the meaning of the Fourth Amendment is far less clear. A strict application of the third-party doctrine suggests that individuals have no expectation of privacy in genetic information that they voluntarily disclose to third parties, including DTC providers. This Note, however, contends that the U.S. Supreme Court’s recent decision in Carpenter v. United States overwhelmingly supports the proposition that genetic information disclosed to third-party DTC providers is subject to Fourth Amendment protection. Approximately fifteen million individuals in the United States have already submitted their genetic information to DTC providers. The genetic information held by these providers can reveal a host of highly intimate details about consumers’ medical conditions, behavioral traits, genetic health risks, ethnic background, and familial relationships. Allowing law enforcement warrantless access to investigate third-party DTC genetic databases circumvents their consumers’ reasonable expectations of privacy by exposing this sensitive genetic information to law enforcement without any meaningful oversight. Furthermore, individuals likely reasonably expect that they retain ownership over their uniquely personal genetic information despite their disclosure of that information to a thirdparty provider. This Note therefore asserts that the third-party doctrine does not permit law enforcement to conduct warrantless searches for suspects on private DTC genetics databases under the Fourth Amendment