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DNA Swabs, Genealogy, and Privacy in Military Justice

By Jaclyn Grieser

DNA’s Role in “Catching” the Golden State Killer

It was by pure coincidence that I finished Michelle McNamara’s posthumously published book, “I’ll Be Gone In The Dark: One Woman’s Obsessive Search For The Golden State Killer,” mere days before Joseph James DeAngelo, at the age of 72, was arrested under suspicion of being responsible for the notorious serial killer’s rampage.  From 1976-1986, the Golden State Killer(GSK), also known as the East Area Rapist, the Original Night Stalker, and the Visalia Ransacker among other monikers, committed at least 12 murders, 45 rapes and 100s of home break-ins throughout California.  Although the various law enforcement agencies, diligently worked each crime scene, preserving any evidence that may become relevant, it wasn’t until the advancement of DNA technology that law enforcement realized these incidents were related and all tied to one suspect. DNA provided the link to hundreds of reported crimes and was the impetus for DeAngelo’s arrests this past April.  Law enforcement combed through a free and widely available open source DNA database to find a familial match.

Implications to Military Privacy?

Most people, especially those drawn to military service, inherently trust “the system.” Commissioned officers freely submit fingerprint standards to apply for security background checks.  And in fact, DNA is no different.  The Department of Defense began systemically collecting DNA samples to identify remains of service members during the Gulf War in 1991. What is now known as the “Armed Forces Repository of Specimen Samples for the Identification of Remains,” contained DNA from approximately 3.2 million service members.  While the database was initially designed to identify the remains of service members, the 2003 National Defense Authorization Act, opened the Repository for law enforcement purposes.  And to make matters worse, refusing to give up a DNA sample to the Repository is grounds for prosecution under Article 92, U.C.M.J, failure to obey a lawful general order—carrying a maximum punishment of a dishonorable discharge, confinement for two years, total forfeiture of pay and allowances, and reduction to the lowest enlisted grade.  What, you may ask, would you care about submission of DNA into any database?  A better question might be phrased, what could free open source DNA standards mean for your privacy?  And could your military service unwittingly make you stand witness against your relatives?

Background on the Golden State Killer

The GSK originally targeted women home alone or with children in the house, but moved on later to target couples.  After having tied up the male in the house, the GSK would stack cups and dishes on his back and threaten to kill everyone in the home if he heard them rattle.  This gave the GSK time to sexually assault the female, casually raid the refrigerator for a mid-attack snack, and dump out drawers and cabinets seemingly looking for nothing in particular.  Often, he would allow his victims to believe he had left and the victim would begin to move, only to feel the sharp edgeof a knife scrape across her back. Although, the GSK refined his modis operendi over time, one commonality never changed—he extensively surveilled his victims.

It was the GSK’s commitment to reconnaissance that lead many to theorize that he had a background in the military or law enforcement and, in fact, Mr. DeAngelo has a background in both.  After an attack the victim would report a series of hang-up phone calls (checking to see if his target was home); neighbors of his victims often would report seeing a prowler creeping through the bushes or having seen a scuffle on their roof in the days and weeks leading up to an ambush / attack.

In 1974, one 16 year-old girl was drawing her curtains when a “moon-shaped object” caught her eye from out the window. She opened her window to get a closer look only to realize that the “moon-faced object returned her stare, a screwdriver clenched in its left hand…skittering sounds could be heard, like some creature with a muscly tail running from light. Bushes rustled. Fences thudded. The clambering grew fainter.”  (The details provided in Michelle McNamara’s book are beautifully and compellingly written).  The GSK would often break into a home prior to an attack and plant shoelaces under the couch cushions to later tie up his victims.  He would steal nominal objects, like a driver’s license or a wedding ring from one attack and leave it at his next victim’s home.

The idea of a serial killer/rapist creeping around your home while you are at the grocery store, or peering through the window at your family having dinner, camouflaged by darkness and a few bushes planted next to your deck is creepy…menacing…terrifying. Unfortunately, the process used by law enforcement to ultimately track down the GSK and finally put a name to the moon-shaped face is striking the same dread in the hearts of privacy advocates.

The Boom in Genealogy

In recent years, curious individuals have clambered to commercial genetic databases to aid in their ancestry searches or to find out if more about their genetic make-up. Two of the biggest commercial databases, 23andMe and Ancestry.com, have a combined 15 million customers.  Some of these customers went a step further in their ancestry search and uploaded their own DNA profiles to a global open source DNA database called GEDmatch.  According to their website, GEDmatch.com, “provides DNA and genealogical analysis tools for amateur and professional researchers and genealogist.”

Nowhere on their landing page does it warn that law enforcement may use the database to find a killer in your family, but that is exactly what law enforcement in the GSK case did.

Without contacting GEDmatch, law enforcement uploaded the GSK’s DNA profile under an assumed name.  The GSK wasn’t in the database—but a distant relative of his was.  Suddenly the pool of possible suspects shrank to only one family. After further testing of the relative’s DNA, law enforcement used more traditional techniques to hone in on Joseph DiAngelo.  Clever and scrappy police work? Or a sign of our dystopian future?

The most common response to such tactics we anticipate is “so what?” or “who cares? They caught a serial killer!”  The warning we wish to outline is that DNA is only as reliable as those entrusted with its collection, care, and analysis.

The Falsely Accused

In 2014, law enforcement used Ancestry.com to falsely accuseMichael Usry of a 1996 murder.  Usry was interrogated by the FBI and remained under suspicion for weeks after his father, Ancestry.com customer, came back as a false positive match to the actual killer’s DNA.  Even in the Golden State Killer case, law enforcement misidentified a 73 year-old potential suspect last year and swabbed his cheek as he lay in a nursing home.   In fact, as of 2014, familial DNA searches had an 83% failure rate—meaning no suspect was identified or, more concerning, someone was misidentified as a suspect in a major crime.  Even taking the glass half-full angel, it works 17% of the time, but as Ellen Nakashima wrote in The Washington Post, “The technique is arousing fierce objections from privacy advocates, who maintain that it turns family members into genetic informants without their knowledge or consent.”

Due in part to privacy concerns, larger genetic databases like 23andme.com and Ancestry.com, have issued policies actively resisting search authorizations.   Familial DNA searches have been banned in Maryland and Washington, D.C. and are highly regulated in other states.  However open source databases like the one used to identify the Golden State Killer do not have the same safeguards.  While the website asks you to “certify” you are only uploading your own DNA profile, it’s a policy without any consequence. A person can upload any person’s DNA, claiming it to be their own.  What would motivate a person to upload someone’s DNA not their own?  It is hard to say, but it is an important factor in appreciating the fragility of reliance on this information to base law enforcement search authorizations and warrants.

With the popularity of commercial genetic databases booming, chances are we all have a bit of our DNA hanging out there for anyone to find.  While most may suggest this technique is revolutionary (and who would not applaud the apprehension of a possible serial killer), the potential for law enforcement to cloak themselves under a pseudonym and casually peruse through any person’s family’s genetic connections feels at best concerning and at worst terrifying.  In as many search authorizations as law enforcement disguises “non-traditional” and even dishonest practices, what is the “check” on using this information under the guise of an informant or worse manufacturing the “evidence” themselves.   Being completely unaware as a faceless entity tracks any person’s genetic material, family members, their whereabouts, their ages, their relationships, their residences, feels a lot like the moon-faced man crouching in the bushes deciding who will be his next victims.  Many believers in the technique simply advise not to use these databases to track ancestry…but remember, neither Joseph DeAngelo nor falsely accused Mr. Usury were genetics customers themselves.

Several years ago my siblings and I got a 23andme.com kit for our grandmother who was dabbling with building our family tree—she refused to do the test.  When I asked her why, she said in her thickest North Carolinian drawl…”Honey, bless your heart, but I don’t know what happens to that DNA when I send it in.  I could be accused of a murder or something!” At the time, I laughed her reservations off, as utterly ridiculous but given recent events, maybe instead they were prophetic.

As a military member, your rights are already abridged (but not erased).  We urge you to consider the implications of open source DNA information before submitting your own sample or encouraging your family members to do the same.  Gone are the days where anyone in the military should trust implicitly that the “system” works in every case.  Panel members trust the reliability of DNA evidence far more than any other form. Are we alleging that every member of law enforcement is out to get you or to set you up for a crime?  No.  What we are suggesting is that you consider all implications so that you can make an informed decision regarding the possible risks of providing your DNA to online / open source databases given the implications.