Privacy implications of forensic DNA analysis
Forensic DNA testing is recognized as one of the most rapidly developing and perhaps best known area of biomedical technologies and could have profound privacy implications for the Canadian public. Forensic DNA testing takes bodily substances from suspects or volunteers, analyzes the samples and compares them to biological evidence - skin, hair, blood, or semen found in connection with a crime. Analysis of a suspect's DNA is then compared with DNA found at a crime scene. The results can either eliminate the suspect or establish with a high degree of certainty that the two samples match.
DNA matching has been widely applauded as the most important development in criminal identification since fingerprinting. A relatively new and uncertain technique at the beginning of the 1990s, it is now high profile, particularly when it produces dramatic proof of innocence and a wrongful conviction. Not so high profile, however, has been the subtle trend towards capturing and retaining DNA information about an increasingly large segment of the population.
The Office of the Privacy Commissioner of Canada strongly supports using forensic DNA evidence for the purpose of identifying criminals, proving the innocence of suspects, and exculpating individuals wrongfully convicted. However, the Office rejects the notion that forensic investigation tools, like the National DNA Databank, could be allowed to evolve into a national file of biological identifiers of citizens. Of particular concern is banking not just the results, but also the samples themselves. Maintaining a bank of samples on a segment of the population may lead to "function creep" - the urge to use information collected for one purpose for an entirely- different purpose. Some would claim, for example, that the samples contain a wealth of data that could be used for legitimate scientific research other than for forensic DNA analysis. These claims are mostly based on the argument that there is a compelling public interest for the research and that it would be too costly, impossible, or inconvenient to collect the information from other sources. Reports from other jurisdictions indicate that pressure is building to retest samples so that "markers" - race, gender, physical characteristics, potential psychiatric disorders - can be added to the identification data to which DNA Data banks are presently limited.
Forensic DNA evidence was first used in Canada in 1988, but there was no legislation to authorize law enforcement officers taking DNA samples from suspects until 1995, when Parliament amended the Criminal Code to permit obtaining samples under warrant. Soon after, the Solicitor General began consultations on creating a National DNA Data Bank to facilitate criminal investigations. The National DNA Data Bank currently holds samples and analyses from crime scenes and from those convicted of a range of violent offences.
The Privacy Commissioner of Canada urged that the DNA Data bank be limited to results of the analysis and not include the biological samples. The Privacy Commissioner of Canada also recommended that the range of offences for which samples could be taken be limited to violent crimes for which future DNA evidence would likely be available.
When the DNA Identification Act passed in 1998, it incorporated most of the recommendations put forth by the Office of the Privacy Commissioner of Canada. While both the analyses and the samples themselves are maintained, it is only to allow for re-testing in the event of the introduction of new more sophisticated technologies. The stated policy of the Forensic Laboratory Services is to not use the samples for any purpose other than for forensic identification purposes. The range of offences while greater than the Privacy Commissioner of Canada thought necessary, is not as wide as some had wanted. Nonetheless, many of the recommendations were accepted, with the result that substantial privacy protection was built into the legislation, not the least of which was a prohibition (clarified in later amendments) on using genetic material for anything other than forensic identification purposes. Amendments also introduced in 1999 required the RCMP Commissioner to report to the Solicitor General every year on the operation of the National DNA Data Bank. The Solicitor General must then table the report in Parliament.
The passage into law of the DNA Identification Act, and the subsequent amendments, dealt with the Office's principal concern about collecting samples. As a result, the Office strongly supports the National DNA Data Bank. The Office's participation on the National DNA Data Bank Advisory Committee is indicative of that.
Part of the mandate of the National DNA Data Bank Advisory Committee is to monitor the implementation of the spirit of DNA legislation to ensure that the privacy rights of Canadians are not being infringed upon.
The Advisory Committee would like to hear about any concerns you may have about privacy issues surrounding the National DNA Data Bank. Correspondence should be addressed to: Secretary of the Advisory Committee (or whomever the Committee designates for such a purpose).
If you wish to make a complaint under the Privacy Act please contact:
The Office of the Privacy Commissioner of Canada
- 112 Kent Street
Ottawa ON K1 1H3
- Telephone: 1-613-995-8210
- Toll-free: 1-800-282-1376
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