To Identify Suspect In Idaho Killings, FBI Used Restricted Consumer DNA Data (nytimes.com) 76
An anonymous reader quotes a report from the New York Times: As investigators struggled for weeks to find who might have committed the brutal stabbings of four University of Idaho students in the fall of 2022, they were focused on a key piece of evidence: DNA on a knife sheath that was found at the scene of the crime. At first they tried checking the DNA with law enforcement databases, but that did not provide a hit. They turned next to the more expansive DNA profiles available in some consumer databases in which users had consented to law enforcement possibly using their information, but that also did not lead to answers.
F.B.I. investigators then went a step further, according to newly released testimony, comparing the DNA profile from the knife sheath with two databases that law enforcement officials are not supposed to tap: GEDmatch and MyHeritage. It was a decision that appears to have violated key parameters of a Justice Department policy that calls for investigators to operate only in DNA databases "that provide explicit notice to their service users and the public that law enforcement may use their service sites."
It also seems to have produced results: Days after the F.B.I.'s investigative genetic genealogy team began working with the DNA profiles, it landed on someone who had not been on anyone's radar:Bryan Kohberger, a Ph.D. student in criminology who has now been charged with the murders. The case has shown both the promise and the unregulated power of genetic technology in an era in which millions of people willingly contribute their DNA profiles to recreational databases, often to hunt for relatives. In the past, law enforcement officials would need to find a direct match between DNA at the crime scene and that of a specific suspect. Now, investigators can use consumer DNA data to build family trees that can zero in on a person of interest -- within certain policy limits.
F.B.I. investigators then went a step further, according to newly released testimony, comparing the DNA profile from the knife sheath with two databases that law enforcement officials are not supposed to tap: GEDmatch and MyHeritage. It was a decision that appears to have violated key parameters of a Justice Department policy that calls for investigators to operate only in DNA databases "that provide explicit notice to their service users and the public that law enforcement may use their service sites."
It also seems to have produced results: Days after the F.B.I.'s investigative genetic genealogy team began working with the DNA profiles, it landed on someone who had not been on anyone's radar:Bryan Kohberger, a Ph.D. student in criminology who has now been charged with the murders. The case has shown both the promise and the unregulated power of genetic technology in an era in which millions of people willingly contribute their DNA profiles to recreational databases, often to hunt for relatives. In the past, law enforcement officials would need to find a direct match between DNA at the crime scene and that of a specific suspect. Now, investigators can use consumer DNA data to build family trees that can zero in on a person of interest -- within certain policy limits.
So the evident is inadmissible (Score:5, Insightful)
F.B.I. investigators then went a step further, according to newly released testimony, comparing the DNA profile from the knife sheath with two databases that law enforcement officials are not supposed to tap: GEDmatch and MyHeritage
Case dismissed.
eh maybe (Score:1, Insightful)
Not adequately explained in the NYT opinion piece (Score:5, Informative)
If you read the Terms and Conditions of MyHeritage:
Any use of the DNA Services for law enforcement purposes, forensic examinations, criminal investigations, "cold case" investigations, identification of unknown deceased people, location of relatives of deceased people using cadaver DNA, and/or all similar purposes, is strictly prohibited, unless a court order is obtained. https://www.myheritage.com/ter... [myheritage.com]
And from the Privacy Policy of MyHeritage:
We will not provide information to law enforcement unless we are required by a valid court order or subpoena for genetic information. https://www.myheritage.com/pri... [myheritage.com]
The story in the NYT doesn't give enough information about the investigation to draw a conclusion. From the article: It was a decision that appears to have violated key parameters of a Justice Department policy that calls for investigators to operate only in DNA databases "that provide explicit notice to their service users and the public that law enforcement may use their service sites."
Does having a notice in both the ToS and Privacy Policy stating that law enforcement may request data with a subpoena or court order provide notice to the users of the service? And what was the exact wording in MyHeritage's ToS and PP back in December 2022? It is a valid question but the NYT opinion piece doesn't give enough details to adequately form an opinion of our own.
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The NYTimes article is paywalled.
It appears that the search was legal as long as the FBI agents had a court order or subpoena.
Did they?
If they didn't, then how did they get access to the DB?
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The FBI can issue investigative subpoenas. Whether they did so in this case is a fair question; I don't know the answer. Doing that might have violated DOJ policy, but that wouldn't save Kohlberger.
Re:So the evident is inadmissible (Score:4, Informative)
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that would not necessarily prevent them from using other evidence to get a conviction.
Not true.
Illegally obtained evidence is not admissible, and any otherwise legal evidence obtained as a result of the illegal evidence is also inadmissible.
Fruit of the poisonous tree [wikipedia.org]
Since he wasn't even a suspect until the DNA match, everything was a result of it.
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Issuing a subpoena or getting a warrant that violates policy is not illegal or unconstitutional. The exclusionary rule is also married than you think: https://www.law.cornell.edu/su... [cornell.edu]; from the syllabus:
Despite its broad deterrent purpose, the rule does not proscribe the use of illegally seized evidence in all proceedings or against all persons, and its application has been restricted to those areas where its remedial objectives are though most efficaciously served.
In that case, a grand jury could hear questions based on illegally obtained evidence, and the witness was required to answer those questions. So even if the DNA results were illegally obtained in this case, they would simply not be admissible at trial.
Re: So the evident is inadmissible (Score:2)
It can be made legal with a little lying. See parallel construction.
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If the concept of Parallel Construction carries no ethical ambiguities for you, you might be a fascist. Here's your sign.
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Justice department policy is not the law. If they obtained the match legally by use of a subpoena or warrant, it would still be admissible. If it is not admissible, they cannot use in court, but that would not necessarily prevent them from using other evidence to get a conviction.
In addition, just because the ZTOCs say they can’t, if they are provided access by the company then the person may have a case against the company; but that doesn’t make the evidence inadmissible. The TOCs are a contract between the company and the customer, the FBI is not bound by it unless they agree to be bound by it. Government policies are subject to change, and if data is availaythe government will want access at some point.
that sounds like fruit of the forbidden tree get a (Score:2)
that sounds like fruit of the forbidden tree get an good attorney to fight for your rights.
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that sounds like fruit of the forbidden tree get an good attorney to fight for your rights.
They did. They lost. This was already litigated [usatoday.com]. The standard American decision, that if you share your data with another commercial entity you have no reasonable expectation of privacy was applied. This is why Americans have to avoid giving private data to cloud providers.
Re:that sounds like fruit of the forbidden tree ge (Score:4, Funny)
This is why Americans have to avoid giving private data to cloud providers.
Especially if they're planning a murder.
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In this case, the murderer's relatives were the ones who uploaded their data. One presumes that they were not planning murder; they merely made it possible to identify him.
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In many cases, though, your expectation of privacy is being violated by your relatives' actions - frequently distant relatives you've never even met. They share their data, and that makes you trackable.
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This is why everyone, not just Americans, should avoid sharing "private" data. Even if the law (where ever you are) creates a pseudo-expectation of privacy, it doesn't actually magically create privacy itself. Adversaries can violate laws, where the damage is done regardless of laws.
Admission of "private" data into courts is only one possible harm, among many.
If some data is "private" then by sharing it (with anyone, even a doctor or defense lawyer), you cause it to stop being private. The law is utterly ir
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Almost. That piece of evidence is inadmissible. The question is if their method of parallel construction produced enough "evidence" that would be admissible if the primary evidence is thrown out.
That's the corrupt bullshit here. On the one hand you have a system that says such evidence is inadmissible in a court, but on the other you can still use that to zero in on a subject of interest and build a case focusing only on that subject. In the worse such scenario you load the court with so much circumstantial
Re:So the evident is inadmissible (Score:4)
Probable Cause (Score:2)
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You should be concerned anyway. I read that only like 15-20% of the planet need submit their DNA in order to reverse engineer the entire population. So its inadmissible. Think that will stop an extralegal execution if someone deemed it a matter of national security? All you have to do is use the words national security and every rule or law flies right out the window.
Parallel Construction of Evidence (Score:2)
I think you got it wrong my sweet summer child.
The Federal bureau of investigation and all of the alphabet agencies have been using something called Parallel Construction to create another chain of evidence that they can use to present for getting an indictment in front of a grand jury. While the real evidence that they obtained to identify the actual subject or person of interest came from illicit means such as wiretapping the entire world or other illegal ways.
They just create another chain of evidence th
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You're describing Parallel Construction [wikipedia.org] and law enforcement does it constantly. Just another way they end-run the Constitution.
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Looks guilty to me (Score:1)
Policy is wrong, judge is right (Score:2)
The policy is wrong:
Justice Department policy that calls for investigators to operate only in DNA databases "that provide explicit notice to their service users and the public that law enforcement may use their service sites."
What next? Even if they have a warrant, can investigators only ask phone companies about a suspect number if they "provide explicit notice to their service users and the public that law enforcement may use their service sites."
It's a war with evil. Use the tools you have as long as they don't harm the innocent.
The judge sees it the same way:
https://www.dailymail.co.uk/ne... [dailymail.co.uk]
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All it'll take is one unsolved child kidnapping or similar and suddenly all DNA databases will be accessible in perpetuity without limits to the FBI, CIA, NSA, TSA, DHS, FEMA, INS, and DOGE.
Which is why my DNA is on file as J.Blues, 1060 West Addison, Chicago, ILL.
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You may want a world where everyone is fingerprinted, DNA registered etc automatically and that all phone activity is logged and available to law enforcement automatically; plenty of other people see this as a massive risk to civil liberty because you can't control how that information will be used or misused once it is collected. You want to bet someone like Trump or Nixon wouldn't be happy t
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This is really a mixed bag.
Should governments be permitted to query genetic data? Yes. What should they get? A YES/NO if there is a match, and confidence in the match. No Name's or locations without further legal queries with a "is it ____ of _____?" No dragnetting. As soon as you even open a crack in the door of dragnetting, you'll start getting corrupt governments using it to harass and threating people's family because they want to keep them from public participation.
That's it. Customers have a reasonabl
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Why would you not want to help law enforcement with a cold case?
Its going to be restricted until its not (Score:3)
Re:Its going to be restricted until its not (Score:4, Insightful)
They could also save a TON of money and man-hours currently being wasted on investigation if we'd just give police the right to enter and search any house they please at any time.
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There is no generic right to privacy in the US, and the third party doctrine is still alive and well. If you want to change that, advocate for that kind of change in federal law. Until then, this kind of disclosure is legally on a fundamentally different basis than warrantless searches of homes.
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If the FBI got a court order, they have the right under the 4th Amendment of "search and seizure," regardless of the terms and conditions imposed by genetics companies.
That's not how it's supposed to work. (Score:3, Interesting)
Unlike fingerprints, two people, even unrelated, can have the same set of DNA markers, just as they can have the same color skin, hair, eyes, and the same height, so simply by searching a DNA database, you can easily find false matches. It's all circumstantial, like the time the police questioned a family who did a Google search for pressure cookers around the time of the Boston Marathon bombings. [theatlantic.com]
But once you've narrowed down a list of suspects, DNA is effective at incriminating and exonerating. That's all it's really good for, so the FBI in this case is misusing the database.
This is why we need data privacy. There are things to fear even if we have nothing to hide.
Nah - DNA matching isn't like that (Score:3)
'you can easily find false matches'
There's been ONE known example of a problematic match in a court case. DNA matches don't look at 'the same color skin, hair, eyes, and the same height', they look at specific bits of genetic code which means that the probability of a false match is very low.
Re:Nah - DNA matching isn't like that (Score:4, Informative)
There have been many, many problematic DNA matches in the UK.
One of the suspects in the Omagh bombing was acquitted after doubts were raised over the DNA evidence against them. It lead to a number of other cases being reviewed due to the use of "low copy number" DNA evidence. https://www.theguardian.com/uk... [theguardian.com]
There are other cases where it was just police stupidity at fault. One man was accused of interfering with a postbox, but it turned out his DNA was there because a letter he was sending was in it.
DNA is not nearly as reliable as people assume. Even if the test itself isn't flawed and produced a strong match, there are numerous ways that the match could have occurred innocently.
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The DNA matching technique used in that case was quickly re-validated and is still being used: https://en.wikipedia.org/wiki/... [wikipedia.org]
The concerns about that technique are because it uses many PCR cycles to amplify trace amounts of DNA for sequencing. Is that the true of the evidence in this case?
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As well as the technique itself being questionable, the match was weak and there were many other matches in the police database, let along among the general population.
The British justice system is poor at properly examining these technologies. Once a certain level of testing has been done, it is hard to challenge them. Typically the accused doesn't have the resources to get their own research done.
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The British justice system is poor at properly examining these technologies. Once a certain level of testing has been done, it is hard to challenge them.
At the risk of stating the obvious, this article isn't about the British justice system. You can ride your hobby horse right back across that ocean. Someone else [slashdot.org] pointed out that the defendant in this case already tried to argue against this evidence, and lost on legal grounds -- he had no basis to argue on scientific grounds.
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I was pointing out that DNA evidence is unreliable, not commenting on the US justice system, which is also unreliable but in different ways.
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I was pointing out that your blanket statement is wrong. The theory of the DNA techniques used for the past three decades or so is sound, and they typically give relevant and helpful factual evidence. They can be misapplied, but pointing to a single 20-year-old case in the UK says very little about the US case at hand here.
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You appear to believe that "DNA evidence" is one monolithic thing, that there's only way test that is always done the same way by everyone. This is not true. Older techniques provide less definitive results than newer techniques, and are not used as much these days because of it. Newer techniques are far more comprehensive and reliable. Not perfect (apply the math from the birthday paradox [wikipedia.org] to it, and you find there's a near certainty that there are duplicates, but DNA is entirely useful as one of several li
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In these cases, it isn't the DNA test itself that is questionable, but how the DNA was obtained, from where, and its relevance to the case. Similar to fingerprint analysis, the evidence must not only establish that the fingerprint belongs to a suspect, but must also establish that the fingerprint could only have gotten there in the course of the crime being committed, and not through some other unrelated means. DNA has the same need for corroboration. That does not make it unreliable as a method of identify
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Yes, they look for specific markers: to process a lot of DNA quickly.
And those markets match YOU with 30 or 40 people on the planet (slightly increasing with population increase).
That only later might help for a real DNA test, as in comparing blood with a hair, or blood with sperm, etc.
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Depends on what you get out of the database. If it's just some simple generic stuff sure, it's circumstantial. On the flip side actual DNA matching has so far only produced a single case where its been thrown out, and the problem was the police couldn't identify conclusively which of the *twins* comitted the crime.
Add to that if you have a decent DNA sample you can test for mutations which often is able to tell even identical twins apart (something you can't do with fingerprints) and you have a pretty damn
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Add to that if you have a decent DNA sample you can test for mutations which often is able to tell even identical twins apart (something you can't do with fingerprints)
Identical twins do not have the same fingerprints.
This isn't exactly obscure knowledge, either.
I can only assume everything else you say is equally wrong.
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You know, you make good arguments, except they're irrelevant to this case.
The police used the DNA markers found from testing the blood left in knife sheath and found a strong connection to the defendant's father using those databases.
Once the connection was established, they did a cheek swab test and the DNA found on the knife sheath on the crime scene was confirmed to be his [abc7ny.com].
I'd say that was pretty good detective work, and anything but circumstantial.
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I'd say that was pretty good detective work, and anything but circumstantial.
Basically anything other than an eye-witness or a photograph is circumstantial evidence. We often casually assume that circumstantial evidence is weaker than direct evidence, but it's not. Often fingerprints are stronger clues than an eye witness.
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Eyewitness testimony is generally the weakest evidence.
But fingerprints aren't much more reliable in real criminal cases, no matter how much the prosecutor tells you they are. It is extremely rare for a crime scene fingerprint to be complete and clear, and undistorted. And different labs have different standards for how many exemplars have to match to be considered a match. There are a lot more provide false positives for fingerprints than for DNA.
What go's around, comes around (Score:2)
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I've watched a long interview with a forensics guy and (from what I understood and remember) he pointed out the same thing... that modern fast DNA tests only look at small specific areas of genetic data. And can only give a degree of certainty.
Plus there are many ways a DNA sample can get onto a crime scene via contamination.
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In the primitive days of DNA tests, when the tests measured only a couple dozen markers, it might have been true that two people could have the same set of DNA markers. This is no longer true. The MyHeritage test measures more than 700,000 DNA markers. https://education.myheritage.c... [myheritage.com]. These tests are so sophisticated that they can tell the difference between an exact match, a parent-child relationship, a sibling relationship, a half-sibling relationship, etc. Even identical twins will have a measurable di
If it's not illegal... (Score:5, Insightful)
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Then what's the point? Oh wait the US can't make laws anymore, just elect dictators that reverse the decisions of the previous one.
That's the crux of the matter, when you openly permit and by extension, encourage corruption in your highest office and highest courts, why should anyone below them follow the laws?
Respect for the law starts from the top. If the people at the top show contempt for the law then everyone else will and you stop having a nation of laws and your society then hinges on it being too easy to be caught for committing a crime rather than any sort of acceptance that commuting crimes is wrong.
Where does it stop?
GEDmatch does allow law enforcement access (Score:2)
It has an opt-in policy for people who contribute their DNA.
https://www.gedmatch.com/join-... [gedmatch.com]
I don't understand why the article claims law enforcement was "not supposed to tap" GEDmatch.
MyHeritage is a more clear-cut case, prohibiting Law Enforcement use. https://www.myheritage.com/pri... [myheritage.com]
Re:GEDmatch does allow law enforcement access (Score:5, Informative)
We will not provide information to law enforcement unless we are required by a valid court order or subpoena for genetic information.
Quoted from the MyHeritage policy linked in the parent. Emphasis mine. As long as LEOs had a warrant, everything above board. No matter what any company policy says, all data of any kind must be released if there is a valid court order to do so. That's literally the purpose of court orders. If it exists, it can be subpoenaed.
Should a warrant be allowed to give access? (Score:2)
That's the question we need to consider. Allowing the police to go trawling through data seems problematic from first principles. But it gets results - apparently.
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It's only problematic, based on the 4th Amendment, if they didn't get a warrant.
Fishing expedition? (Score:2)
I accept that a warrant may resolve the 4th amendment claim, but the way in which the private data is being used to fish for an identity may be argued to be on a level with facial recognition packages. That's what I'm trying to tease out.
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We don't have privacy laws because it enables law enforcement to do this stuff. There was no 4th amendment claim. You handed that data to a third party. They can do with it as they wish.
"The moment you leave the confines of your house; you have no expectation of privacy."
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I don't think so.
There was a similar case a few years ago. Police were looking for someone; so, despite not having a warrant, they got cell phone location data. They didn't subpoena, they just called the phone company and demanded it. They then raided his friends home based solely on this.
The state prosecutor argued the defendant had no 4th admendment protection. That the moment he left his house they were allowed to use every method to locate him. His friend also wasn't protected as he was "harboring a per
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The warrant would need particularized suspicion and probable cause, but this was a fishing expedition. And the business record exception is a joke.
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This is as it should be. Our privacy under the Constitution is not absolute. The 4th Amendment protects people from "unreasonable searches and seizures." Under the Amendment, searches and seizures *can* be conducted when a warrant is obtained, based on probable cause.
If the FBI got a warrant, then they are clear of any wrongdoing in this case, based on US law.
ok? (Score:2)
I can't say for sure about my heritage, but gedmatch explicitly: ... So I don't see how that doesn't comply with the rules?
- offers you the ability to affirm that police can look at your data, if you're not affirming, the answer is no
- explains what affirming means
Need to make a decision - either all or none (Score:2)
We need to decide if we want an all inclusive DNA database (Kuwait did this back in 2015). There are several good reasons to do this - among other things - crime identification, health purposes, and for parental rights/duties.
There are also clear privacy concerns including a desire for private adoptions, the anonymity of the children of rape, and of course preventing government abuses. Not to mention the likely disparity of women having their indescretions revealed while men being more likely to keep th
Doesn't that class as fruit of the poisoned tree (Score:2)
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No.