For the basic principles of iFGG, see my previous blog. Dutch media like NRC and lately in June, NOS Nieuws, reported on the use of iFGG. The next question is: if the US government uses iFGG, so why don’t we? The main argument put forward by the Dutch Public Prosecution Service (OM) and the Netherlands Forensic Institute (NFI) is this: if iFGG is currently being used in the US to solve violence-related cold cases, why not at least conduct a pilot test here?

Concerns about privacy

While it’s true that iFGG is currently used in the US as a last resort to solve cold cases, there are state laws and a federal regulation in place on its use. The US Department of Justice published an interim policy in 2019 precisely for a ‘reasoned exercise of investigative, scientific, and prosecutorial discretion’ on iFGG use because it ‘may affect privacy interests’. While its scope in terms of applicable cases is limited, it does have a nationwide reach. What’s more, and due to states’ growing awareness of potential privacy breaches, specific iFGG laws have been formulated in states such as Maryland and Montana. These regulations, policies and guidelines on iFGG are increasing across the US, and one professional US organisation even provides a model legislation template.

The Netherlands lacks specific iFGG legislation or regulations. This is clear from the court decisions in the two cases mentioned in the NOS article: a 2004 murder case in Berg en Terblijt and the 2013 case of an unidentified woman whose body was found in Pietersplas near Maastricht. Arguing that we should use iFGG here due to its use in the US ignores the fact that the US has state laws and federal policy regulating iFGG use that addresses critics’ privacy concerns.

Moreover, US privacy protection standards don’t seem to be on par with European standards. The Court of Justice of the European Union invalidated cross-border data transfers between the US and the EU in the Schrems I and Schrems II cases. So, the method’s use in the US as the main justification for its use in the Netherlands seems somewhat misguided. The news article failed to mention that iFGG was used to solve a 16-year-old Swedish double murder case. That’s more relevant as Sweden is also an EU Member State. However, the use of iFGG in Sweden has been halted until their current legislation is amended to prevent violations of their citizens’ genetic data privacy. So why rush to use iFGG here without legislation on its use?

Critics: privacy is at stake

One lawyer interviewed in the article claimed that a decision by a district court on the use of iFGG is insufficient. A decision from a higher court would be ideal, but that seems unnecessary at this time. The local court should have rejected its use for lack of a solid legal basis. If a similar case reaches a higher court, the same decision is expected. After all, judges are not lawmakers – they only rule on the applicability of a law in a specific case.

The same lawyer correctly points out that the US companies involved are neither subject to Dutch law nor to the oversight of the Dutch Ministry of Justice. And so the Ministry needs to issue at least a regulation on iFGG use here – similar to the US DOJ’s interim policy. This should contain legal safeguards protecting genetic data privacy, which individuals share with their genetic relatives, hence amplifying the effect of such privacy provisions.

The way forward? iFGG legislation

I don’t reject using iFGG to solve cold cases. It’s a powerful tool that can finally bring criminal perpetrators to justice and offer closure to victims’ families. Law enforcement should be able to ‘fully interrogate’ forensic samples at the crime scene and identify their source. However, another pilot study seems superfluous. This has already been proven in the US, Australia, Norway and Sweden, which all have strong genetic links to Europe – a positive argument for using US genetic genealogy databases, largely populated by Americans of European descent.

So, do we have laws that permit the use of iFGG, or at least regulations on its use that protect genetic privacy? The law cited by the local court allowing the OM to use iFGG is insufficient. The case law of the European Court of Human Rights (ECtHR) could shed light on this issue due to its strictness on the specificity of the law to allow collection of sensitive data. The ECtHR ruling in Dragan Petrovic v. Serbia (at para 81), for example, mentions a lack of ‘specific legal provisions’ on taking DNA samples.

Conclusion

Though this case is different, the lack of specific Dutch legislation allowing indirect DNA profile matching in US commercial genetic genealogy databases through iFGG could be disputed before the ECtHR. So, the legal grounds for using iFGG are questionable at present. That needs to be sorted first to avoid unnecessary future litigation. As the saying goes, let’s not put the cart before the horse.

Photo Pixabay