The Utah Legislature recently passed a new law, the “Sherry Black Bill,” named after a homicide victimwhose tragic fate sent shockwaves through South Salt Lake in 2010. Her life was brutally taken within the confines of her local bookstore, and for a decade, her case remained unsolved. However, the narrative took a dramatic turn as law enforcement harnessed the power of investigative genetic genealogy – “the science of using genetic and genealogical methods to generate leads for law enforcement entities investigating crimes and identifying human remains” - to finally bring resolution to this perplexing mystery.

The investigative journey involved combing through DNA databases from major genealogy companies, such as Ancestry and 23andMe. Investigators contacted these databases, and while not given explicit genetic information, they received the names of individuals who shared traits with the suspect’s DNA. This information opened up avenues for further exploration, allowing the investigators to contact these individuals and ask if they were willing to submit their full DNA profiles to a publicly accessible database known as GEDMatch. Because several users agreed, police were able to determine the familial relationship between the sample DNA found at the crime scene to some of these individuals. With this information, law enforcement was able to identify possible suspects of Sherry Black’s murder.

DNA has been a pivotal tool in law enforcement investigations for several decades. In 1986, a groundbreaking moment in forensic science unfolded as DNA fingerprinting was introduced to exonerate a suspect who had falsely confessed to committing two rape-murders. The technique rapidly gained traction within the realms of policing and criminal justice. However, the field experienced an unprecedented expansion in 2018 when it played a pivotal role in identifying a notorious California killer. This breakthrough was achieved by skillfully linking DNA collected from a murder investigation in 1980 with genetic information sourced from a distant relative. Identifying this person as a distant relative of the killer allowed the investigators to narrow their search dramatically and apprehend the actual killer. Such accomplishments underscore the immense potential of genetic genealogy in unraveling long-standing murder mysteries. Notably, one prominent forensic scientist claimed to have closed over 200 cases using this new technique.

Despite its successes, some have pushed back against using genetic genealogy in law enforcement. The objections raised against this practice encompass both practical and fundamental concerns. On a practical level, critics argue that it may dissuade individuals from voluntarily undergoing genetic tests due to apprehensions about potentially compromising their genetic privacy under unforeseen circumstances. A more fundamental concern pertains to the moral and ethical implications of using DNA material to probe criminal investigations. The process inherently entails the collection and association of genetic information from tens to thousands of innocent individuals, unwittingly embroiling them in a criminal inquiry. While law enforcement officers may contend that they are justified in leveraging the DNA of a suspected individual, the decision to involve others unrelated to the crime under investigation gives rise to significant concerns regarding privacy violations.

This conundrum highlights a broader and complex issue — the delicate balance between safeguarding individual privacy rights and the collective security interests of society. Genetic testing, particularly when offered by "direct-to-consumer" companies, introduces an additional layer of privacy concerns that extend far beyond the boundaries of conventional concerns like eavesdropping on phone calls (as raised subsequent to the approval of the Patriot Act). DNA testing has the capacity to divulge not only one's genetic origins but also information about their relatives, parentage, and even disease predisposition, further amplifying the privacy dilemmas.

Many of these genetic testing companies try to avoid privacy issues by offering explicit privacy clauses for users when they sign up for their genetic testing kits. For instance, MyHeritage explicitly notes in its privacy clause that law enforcement officers are prohibited from using its database. However, not all companies share the same stance. GEDMatch, for instance, readily grants police access to its database unless users expressly opt-out, thereby opening up a broader debate about the privacy standards surrounding genetic information and law enforcement access.

In the aftermath of the Sherry Black case, the Utah Legislature passed SB156, also known as the "Sherry Black bill." This legislative act introduces a more structured framework for law enforcement's utilization of optional genetic testing databases when investigating violent crimes. The law empowers law enforcement to access genetic testing databases of users who have consented to making their genetic information public, but it expressly restricts the scope of these searches to cases involving violent crimes. Users who choose not to opt-in for sharing their genetic information with law enforcement are excluded from such investigations.

Interestingly, this legislation has garnered support even from some members of law enforcement in Utah. Their perspective emphasizes the preservation of individual privacy rights while ensuring a balanced approach that also caters to the imperatives of prosecution. One officer in particular highlighted the importance of protecting constitutional rights and individual freedoms enshrined in the Bill of Rights, arguing that striking a fair balance between privacy and prosecution is essential for a fair society, as this legislation is designed to accommodate the possibility of exoneration as well.

The need for legislative intervention in defining privacy rights for genetic information is becoming more and more necessary, even when users exercise their choice to opt-out of a company’s public disclosure clause.Reports have surfaced of law enforcement identifying potential loopholes to access the DNA of individuals who explicitly opted out of a commercial database like GEDMatch. While law enforcement may be operating with a "reasonableness" standard while using such information, citizens should advocate for legislation of new laws which clearly delineate the terms of engagement with genetic material in criminal investigations out of concern police or detectives will misuse and even exploit an individual’s DNA material beyond this reasonable standard.

In a world where genetic testing continues to gain prominence and millions of Americans join the burgeoning genetic testing community, the need for well-defined statutes and regulations striking a balance between individual privacy and law enforcement's investigative requirements becomes increasingly apparent. The ever-expanding realm of genetic genealogy in criminal investigations raises complex questions about where the line should be drawn to safeguard the rights and freedoms of innocent individuals while upholding the principles of justice and security.