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Privacy in the Criminal Justice System: Investigation DNA

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University of Ottawa




This report contextualizes the handling of DNA samples within the broader privacy debate, from the time samples are collected during an investigation to their use in judicial proceedings. The ‘CSI effect’ has made the use of genetic information in crime investigations as well known as fingerprints, yet there has been no serious public debate (outside of special interest groups) on the use of DNA in the criminal justice system.

The report is composed of five sections, the first of which reviews the growing challenge of maintaining privacy rights in a “private life” and the blurring of distinctions between “private life” and “public life”. This results in a new aspect – the “public private life” which arises from both societal needs and the confluence of information technologies. In this context, regarding genetic information, the authors raise the issues of dataveillance, unintended secondary uses, and the value of this data in the information economy.

The second section explores the challenges to the “private life” of identification via genetic technology. DNA information that people leave behind – for example, cells left on a seat at an airport – may be trotted off to China by another passenger while the remainder of our cells move towards Toronto. This dilution of self – in which our detachable DNA information could end up in numerous disparate databases without our knowledge – can also lead to the penal justice system storing, examining and comparing DNA samples, with unique privacy rights implications.

The third section is a description of the methodology used to collect and analyze the data that is the subject of section four. The authors attempted to map the justice system’s use of DNA to identify the sequence of collection of DNA evidence in criminal investigations, the key actors in its collection and use in police forces and police labs. They also provide an overview of standards in place and the types of information collected from DNA evidence and how it is used (the data trajectory). The authors conducted eight interviews, ranging from one to three hours, with representatives of two police forces and the National DNA Data Bank, along with a review of relevant documentation.

The fourth section is an extremely detailed and revealing description of the trajectory that DNA will take in a criminal investigation, from the moment a sample is collected at the scene of a crime to its inclusion in one of the two registries of the national DNA database. The authors describe ten discrete stages that break down into two categories. The first category is comprised of the six stages that lead from collecting genetic substance to establishing an individual’s identity. The second category includes the four stages leading to an incriminating proof or the “criminal identity”. In describing the various stages, the authors raise the possible social and legal ramifications for privacy. The authors point out that DNA can have significant impact on the “private life” of individuals when it can be linked directly to them, or used to profile likely suspects in a crime, or used for bio-monitoring or predictive purposes.

In section 5, the authors present some conclusions, including the view that the creation of a “penal identity” through DNA collection in a crime investigation changes the paradigm of the “private life” and subjects the individual to a new relationship with the criminal justice system in which his actions and the presence of his DNA must be explained. In this milieu, a subject’s right to silence is diminished, the burden of proof that he is not a suspect shifts to the individual, and a “tunnel vision” approach to use of DNA evidence may affect his legal rights. This, in sum, marks a whole reorganization of penal justice which challenges our liberal notions of the “private life”.

This document is available in the following language(s):

French only

  •  French (XX document)

OPC Funded Project

This project received funding support through the Office of the Privacy Commissioner of Canada’s Contributions Program. The opinions expressed in the summary and report(s) are those of the authors and do not necessarily reflect those of the Office of the Privacy Commissioner of Canada. Summaries have been provided by the project authors. Please note that the projects appear in their language of origin.

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