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rom DNA of Family, a Tool to Make Arrests
Privacy Advocates Say the Emerging Practice Turns Relatives Into Genetic
Informants
By Ellen Nakashima
Washington Post Staff Writer
Monday, April 21, 2008; A01
He was a church-going father of two, and for more than 30 years Dennis Rader
eluded police in the Wichita area, killing 10 people and signing taunting
letters with a self-styled monogram: BTK, for Bind Torture Kill. In the end,
it was a DNA sample that tied BTK to his crimes. Not his own DNA. But his
daughter's.
Investigators obtained a court order without the daughter's knowledge for a
Pap smear specimen she had given five years earlier at a university medical
clinic in Kansas. A DNA profile of the specimen almost perfectly matched the
DNA evidence taken from several BTK crime scenes, leading detectives to
conclude she was the child of the killer. That allowed police to secure an
arrest warrant in February 2005 and end BTK's murderous career.
The BTK case was an early use of an emerging tool in law enforcement:
analyzing the DNA of a suspect's relatives. In the BTK example, police had a
suspect and were looking to tie him to the crime. But now, states are moving
to conduct familial searches of criminal databases, looking for
close-to-perfect matches with DNA from crime scenes. A partial match with a
convicted criminal could implicate a brother or daughter or father of the
convict. Such searches, advocates say, constitute a powerful law enforcement
tool that, experts say, could increase by 40 percent the number of suspects
identified through DNA.
As things stand in some states, lab analysts who discover a potential
suspect in this way may not be permitted to share that information with
investigators. Such a policy, said William Fitzpatrick, a New York state
district attorney, "is insanity. It's disgraceful. If I've got something of
scientific value that I can't share because of imaginary privacy concerns,
it's crazy. That's how we solve crimes."
But the technique is arousing fierce objections from privacy advocates, who
maintain that it turns family members into genetic informants without their
knowledge or consent. They complain that it takes material collected for one
purpose and uses it for another. And with the nation's DNA database
disproportionately comprised of minority offenders, they say, it amounts to
placing a class of Americans under greater scrutiny merely because their
relatives have committed crimes.
"If practiced routinely, we would be subjecting hundreds of thousands of
innocent people who happen to be relatives of individuals in the FBI
database to lifelong genetic surveillance," said Tania Simoncelli, science
adviser to the American Civil Liberties Union.
Nonetheless, California, which maintains the world's third-largest criminal
DNA database with more than 1 million samples, will soon become the first
state to adopt a protocol to allow for familial searches. Last week,
Colorado performed a test run of familial search software on its criminal
database. In Massachusetts, officials say they plan to develop a policy to
allow familial searches.
The technique is being adopted as states and the federal government expand
their databanks to include profiles of people who have been arrested but not
convicted of certain crimes.
Only Maryland has expressly banned familial searching in a law adopted this
month to expand its DNA database to include anyone charged with a violent
crime. The FBI, which maintains the world's largest forensic DNA database
with almost 6 million profiles, said it has so far refrained from adopting
the technique because of concerns about constitutional challenges.
"The FBI would be more comfortable with congressional authorization to
conduct familial searches," said Thomas Callaghan, head of the FBI's
national DNA database.
However, he said, the bureau does occasionally find partial matches. When it
does, under an interim policy, it allows states to follow up to see whether
a relative is involved.
An advisory group to the FBI has proposed a final policy that goes further,
recommending that partial matches be subjected to additional DNA testing and
statistical analysis that would help investigators home in on relatives of
people in the federal database.
"How is that not familial searching?" said Simoncelli of the ACLU. "You're
still using the database to try to get to family members."
The key is intent, Callaghan said. The bureau is "not deliberately trolling
the database looking for relatives," he said.
Heightening privacy concerns are the growing number of local jurisdictions
that maintain DNA databases not restricted to criminals. Some include the
DNA of victims, suspects or even lab workers. Such collections, which
critics call "rogue databases," are barred from inclusion in state and
national databases, but rules about their use by law enforcement agencies
are unclear.
The Supreme Court has repeatedly held that authorities may not conduct
searches for general law enforcement purposes without suspicion about
individuals. Although convicted criminals have a diminished expectation of
privacy, searching a database for unknown relatives might violate that
principle, said Jeffrey Rosen, a George Washington University law professor.
"The idea of holding people responsible for who they are rather than what
they've done could challenge deep American principles of privacy and
equality," he said. "Although the legal issues aren't clear, the moral ones
are vexing."
Finding BTK
BTK first struck in 1974, strangling a man, his wife and their two children,
11 and 9, in their home. He killed six more times over the next 17 years,
tying up his prey with electrical tape, nylon stockings and rope.
After 14 years of silence, BTK reemerged in 2004, sending messages to
authorities via the media hinting that he was about to strike again.
Computer forensics revealed that a document on a CD sent to a local
television station had been saved by a person named "Dennis" at a local
church.
Investigators zeroed in on Dennis Rader, the congregation president, but
before they moved, they wanted evidence tying him to the crimes.
They learned that Rader had a daughter who had attended Kansas State
University, and they reasoned that at some point she must have used the
medical clinic, said Wichita police Lt. Ken Landwehr. "It was suggested that
she probably had a Pap smear," he said. Federal law requires that labs keep
Pap smears for five years, principally in case of legal challenges over
diagnoses.
The prosecutors obtained a subpoena and a court order for the daughter's
specimen to compare with BTK's DNA. (An exemption in the Family Educational
Rights and Privacy Act allows law enforcement to obtain a student's health
data with a court order.)
"It was obviously good detective work," said Nola Tedesco Foulston, the
prosecutor in the case.
At the same time, said George Washington University law professor Sonia
Suter, "it is so troubling to think that somebody would have a sample taken
for her medical welfare that is then used to implicate her father."
To Phyllis Hedge, daughter-in-law of a BTK victim, it is justified by the
need to stop violent criminals. Her mother-in-law, Marine Hedge, was stalked
and strangled by BTK in 1985. Twenty years later, Hedge said, she and her
husband, Tommy, were stun
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