Laurelly Dale

Collect evidence now, ask questions later. That is the approach of police and FBI in the U.S. using GEDmatch, a DNA data collection site that combines results from the popular 23andMe and Ancestry sites. The site was praised for helping solve the mystery of the Golden State serial killer. Before any courts can weigh in, the police have used GEDmatch in 60 cold cases.

This summer, the Talbott case in Washington was the first to raise the issue at trial. For the first time ever, Canadian law enforcement will use this tool to investigate another 16-year-old cold case in Vancouver.

There are approximately 1.2 million users of GEDmatch. As a result, the DNA databank available to police has been widened significantly. In the good old days, CODIS was the only game in town. A court order was required. These profiles are of those that have been through the whole criminal justice process and were convicted of a secondary designated office.

Now, as a result of GEDmatch, DNA databanks include those that have never had any involvement in the criminal justice system. Beyond that, it reaches further, including those that are relatives of the donors regardless of pesky concerns such as age or consent.

Although GEDmatch had been used in 60 cold cases, the issue of genetic genealogy had never been raised in court. Until the Talbott case.

In 1987 the bodies of Canadians Jay Cook and Tanya Van Cuylenborg were found murdered miles apart in Snohomish, Wash. DNA from semen was recovered on the body of Van Cuylenborg. A pair of second cousins led to the capture of William Talbott. They had both shared their DNA profile on GEDmatch.

Until this case, all those arrested using family tree forensics had resolved their matters prior to trial. I had high hopes for this case. It was touted as the first to deal with family tree forensics. Sadly, for those of us seeking clarity from the judiciary, we were left disappointed.

Defence did not challenge the admissibility of the evidence. Talbott’s defence was consent.

He did not testify in his own defence. The jury was not persuaded, and he was convicted.  

If family tree forensics is being used to help catch the bad guys then what’s the problem?

First problem: In May 2019 GEDmatch changed its terms, requiring users to opt in and allow sharing their data with the police. An important notation — even if you do opt in, your DNA could be used to match a brother, uncle, father, cousin, second, third or even fifth cousin.

DNA is not a passport. One cannot simply get a new one. In the words of singer Lizzo, “I just took a DNA test, turns out I’m 100 per cent that bitch.” 

You are stuck with your DNA for the rest of your life. Unless GEDmatch has crafted some iron-clad waiver and authorization that reaches beyond any legal authority I’ve ever encountered, they are collecting the DNA of unwilling participants.

Second problem: an obvious worry is the overreach. GEDmatch claims that they limit data sharing with the police to violent crimes. Initially this meant homicides but has now been expanded to include sexual assaults. Then, this past May, it was used in the investigation of a teenager who was later charged with the assault of an elderly woman.

At this rate their slope is covered in black ice and motor oil. Why not include complainants in robberies? All levels of assault? Criminal harassment? Those accused of dealing drugs? Human trafficking? The threshold is a malleable standard.

Third problem: how long is the DNA data stored? If you provided your DNA prior to opting out would GEDmatch still retain a copy for future use?

If you think Canada would exercise some due diligence before jumping in, you are wrong. This spring it was announced that the Vancouver police department will use Parabon NanoLabs — the same U.S. company used in the Talbott case — to track down the killer in the Edgar Leonardo case.

Leonardo is a 16-year-old cold case that occurred in an apartment in Vancouver’s gay village.

I’m not the only one concerned with these warrantless searches. In 2019 a Maryland delegate submitted a bill to prohibit the police from using DNA databases for crime solving.

It was not passed. Currently, there are no laws in the U.S. or Canada regulating the use of GEDmatch or other non-criminal DNA databases.

In December, the U.S. Federal Trade Commission issued a statement outlining its concerns. We need some guidance sooner rather than later.

According to the MIT Technology Review, more than 26 million people have provided DNA to those sites. By 2021, it is estimated to reach 100 million. To put it into perspective, that is almost three times the population of Canada and a little less than a one-third of the entire population of the U.S.

The true believer in me is appalled that the police have been able to access this information without a warrant.

When tested on others (i.e., those that don’t miss an episode of Law & Order SVU), their response is, “well … if it helps catch the bad guy.” A means to an end. This is the same response given by those post 9/11 when asked if they would limit their individual freedoms in the war on terror. Frightening. Fingers crossed for some swift judicial and/or legislative direction. We were robbed of guidance in the Talbott case.

Laurelly Dale is a criminal defence lawyer with Dale Legal Firm. Contact her at ldale@dalelegalfirm.com.

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