David R. Jones (137830)
David R. Jones Credit: Contributed

The New York City Police Department maintains a database of DNA collected not only from people convicted of crimes, but people simply detained or questioned, including children.  In many cases, the samples were gathered without a warrant or court order.

The Legal Aid Society contends in a stunning federal class-action lawsuit that the unregulated database of 30,000 profiles is illegal, violates state law and the Constitution, and should be shut down entirely.  I couldn’t agree more. This equivalent of a genetic lineup is as wrong as two left shoes.

The NYPD should not be in the DNA database business. It smacks of the DNA harvesting and surveillance tactics used in authoritarian China, Russia or the Philippines. The ethical and civil liberties concerns are like a sinkhole in the road that distorts the path of traffic that is blocks away. It is, in fact, a byproduct of the prevailing national police ethos to fight crime “by any means necessary.”

Mayor Eric Adams and Police Commissioner Keechant L. Sewell must immediately order that all DNA gathered unlawfully, or even under questionable circumstances, be expunged. They should terminate the city DNA database operation, which was never authorized by the New York City Council or State Legislature. 

The mayor has called for expanding the use of facial recognition to identify gun carriers, which he argues could aid in crime fighting.  However, DNA is another matter. The demographics of the NYPD database is unknown, but it is fair to assume it contains samples from an overwhelming number of Black and Latinx men. That would be in line with arrest patterns in the city, where about 75 percent of people arrested over the past decade were Black or Latinx.

The racial component raises profoundly troubling moral, privacy and philosophical questions — which of course demand a careful and compassionate public discussion weighing of citizens’ rights, police duties, costs, benefits and unintended consequences. All things considered, this situation is dangerous, and simply cannot be justified.

The NYPD was inspired to embrace DNA four years ago, after police in California used genetic technology to catch Joseph James DeAngelo Jr., one of the nation’s most notorious serial killers.  They solved the case through covert searches of private DNA housed by companies used by millions of consumers to trace their family trees.

Since 1994, federal and state governments have maintained a national system to facilitate DNA comparisons, known as the Combined DNA Index System (CODIS).  It is regulated by federal and state laws. In New York, the State Legislature restricted the index to people convicted of certain crimes. That means state law requires a conviction or a court order before someone’s DNA can be stored in the state-run database.

The Golden State Killer investigation gave birth to what is known as investigative genetic genealogy. Police partially matched  DeAngelo’s DNA to his great-great-great-grandparents, built family trees of relatives and eventually traced it to him. Investigators uploaded a DNA profile to the commercial ancestry services and got a list of matches, just like the average user of the service. The rest was traditional police work.

The case prompted the NYPD and police across the United States to rush to compare crime-scene DNA to genealogy websites. It also raised a troubling question:  Should third parties — in this case, police — have access to personal data generated by consumer technology? 

In 2019, the U.S. Department of Justice issued guidance for law enforcement use of forensic genetic genealogy: Use it as a last resort and with caution.  The eight-page policy sets case eligibility (unidentified human remains or a violent crime with no matches in the CODIS federal DNA database). It also requires the work to be done in a special lab.

The NYPD went a step further than both the Justice Department recommendations and New York state law. It began to collect DNA from adults and minors arrested or simply questioned by investigators. The NYPD then routinely runs samples through the rouge inhouse databank in search of a match. 

The DNA harvested from minors conflicted with state laws that give extensive protections restricting the release of children’s paper records. For instance, police arrest reports for juveniles must be withheld from the public, and all fingerprints and photographs must be destroyed when the child reaches age 21 without a criminal conviction.

What is more, unlike a fingerprint, DNA reveals deeply personal characteristics, such as a person’s genetic predispositions toward certain medical conditions, including Alzheimer’s, cystic fibrosis, breast cancer, and addiction. It also reveals their ancestry and biological familial relationships, including previously unknown parentage. 

In this era of “big data” and other analytics, the perception is that the bigger the database, the better for public safety. That line of thinking does not hold water if it is at the expense of fairness and privacy.

David R. Jones, Esq., is President and CEO of the Community Service Society of New York (CSS), the leading voice on behalf of low-income New Yorkers for more than 175 years. The views expressed in this column are solely those of the writer. The Urban Agenda is available on CSS’s website: www.cssny.org.

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