Privacy and DNA Databanks: Harnessing the power of DNA Analysis in a Democratic Society

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Remarks at the Toronto Police Centre of Forensic Sciences

March 10, 2010
Toronto, Ontario

Address by Chantal Bernier
Assistant Privacy Commissioner of Canada

(Check against delivery)


Introduction

Thank you for inviting me to join you today.  The subject you have asked me to address, privacy and DNA Databanks, is absolutely cutting edge, raising unprecedented ethical, human rights law and law enforcement issues.  And it is a moving target: privacy and genetics, on the one hand, and privacy and safety, on the other, come to a head as we ask ourselves how we can pursue the potential of science, while preserving the fundamental values of our society.

In the discussions with Joel McGrory and Shawn Porter in preparation for this afternoon, it became clear to us that the most realistic objective for our presentations today was not to provide all the right answers but, instead, all the right questions.

I hope that at the end of my presentation you have a better idea of the issues to be aware of to reconcile valid law enforcement objectives, on the one hand, and the protection of the fundamental right to privacy on the other.  In that vein, I would like to turn your attention to the title of my presentation.

I borrowed the words "Harnessing the power of DNA analysis" straight from the 2007-2008 report of the National DNA Databank.  I know that it is your principal concern, and I know that all Canadians would rally to idea of maximizing the potential of DNA analysis to improve the delivery of justice. DNA does not prove innocence or guilt, but it can support the conclusions of a court of law. 

That concern coexists, not in contradiction, but in a complementary fashion, with the protection of human rights.  I will assume we all agree that we want effective law enforcement as well as a free and democratic society.  The question is how do we get there and, for today, how does it apply in the context of DNA Databanks.

I will address that challenge through four questions:

To set the law and governance structure around the issues, I will address,

  1. How is privacy relevant to DNA databanks?
  2. What are the relevant privacy principles?
  3. What is the role of the Office of the Privacy Commissioner?

And to start charting some guidelines for moving forward, I will bring this legal framework to,

  1. What are the emerging privacy issues in relation to DNA databanks?

1. Privacy and DNA Databanks

As a starting point, it must be said that DNA constitutes personal information since it relates to an identifiable individual.  That is the definition of “personal information” in the Privacy Act. Personal information, in Canadian law, is protected in relation to five functions:

  • Collection
  • Use
  • Retention
  • Disclosure and
  • Access to one’s personal information.

The Courts have stated that DNA information is so vast, so profound and so sensitive, that it warrants the highest level of protection (R. v. S.A.B. S.C.C. 2003).

I know that many make a distinction between DNA in general and DNA segments used in forensic DNA analysis.  However, while forensic DNA analysis applies to a narrow segment, the fact is that once the sample is taken, all the DNA information is potentially available and, hence, the Courts both in Canada and abroad, afford it the high protection.

For that reason, the privacy regime around the National DNA Databank is protected by essentially four main types of safeguards:

  1. Legal measures, including the fact that the collection of DNA is subject to judicial authorization, it is restricted to law enforcement purposes and disclosure to foreign organisations is strictly regulated,
  2. Scientific process, by limiting the analysis to the minimal segments necessary for identification,
  3. Governance structures, by keeping the bank independent from the Convicted Offender Index, essentially keeping identity information separate from genetic information,  and, finally,
  4. By restricting access to the samples in a very secure manner, and subjecting any infraction to these rules on access to criminal penalties.

2. Relevant privacy principles

So what are the privacy principles that apply in safeguarding privacy while using DNA analysis to assist in law enforcement?

The starting point is that privacy is a fundamental human right. In fact, Canadian courts recognize privacy as a quasi-constitutional right.  Why?  Because it is fundamental to the exercise of all other fundamental freedoms, whether the freedom of association, opinion, religion, as well as essential to the respect for human dignity and integrity.

The right to privacy is both inherent - meaning important in itself, to control what private information is known about us - and instrumental right - meaning that is serves the specific purposes of ensuring that our personal information cannot be used against us, whether for simple derision - think of the kids caught on You Tube and ridiculed around the world- or defamation, or personal safety.

As all human rights, privacy is not an absolute right. It is limited by collective rights.  The Charter of Rights and Freedoms states it clearly in its first article:

The rights it protects are subject only to limits that are,

  1. Prescribed by law
  2. Demonstrably justified in a free and democratic society.

These words are our blue print to address the co-existence of privacy and security.

So what have the courts (R v. Godoy, S.C.C. 1998) said about that?  Again, we have some clear directions to help us in this regard:

1) It is acknowledged that security may trump privacy - privacy and security exist in a hierarchy of rights and the right to life, and, therefore, by extension, the right to security is foremost.  But privacy may be limited to ensure security only according to strict conditions.  It must be demonstrated that:

  • The nature and the level of risk make the invasion of privacy necessary
  • The security response is proportionate to that risk
  • The security response is effective in addressing that risk
  • There is no less privacy intrusive alternative.

The courts (Schreiber v. Canada S.C.C. 1998) have also clarified that, in judging whether the invasion of privacy for security reasons is justified, we must take in to account reasonable expectations of privacy, and that reasonable expectations of privacy vary according to context.  For example, the reasonable expectation of privacy is not the same at an airport, for example, as it are at home or, between a convicted offender and a law abiding citizen, in relation law enforcement authorities.

What does this all mean for DNA Databanks: it means that,

  • since the collection of DNA is the collection of personal information, in fact very sensitive personal information, the invasion of privacy must be strictly limited to circumstances that demonstrably justify it as necessary - concretely, that means, that it should be limited to serious crimes, where the imperatives of security outweigh the right to privacy, and to crimes where the collection of DNA is relevant to ensure safety.  It also means that the collection should be limited to minimal segments necessary for identification.

It also means that the use of DNA evidence must be limited to where it is proven effective, again to justify the invasion of privacy.  We cannot collect DNA just in case it can come in handy or without a sound justification of improving law enforcement response.

It also means that disclosure of DNA information must be absolutely restricted to what is justified to pursue legitimate law enforcement objectives.  This is illustrated in the strict conditions for international DNA information sharing prevailing now in Canada.

So these are the principles to apply to move forward on emerging issues regarding the use of DNA analysis.  But before I turn to those, let me briefly explain how the Office of the Privacy Commissioner of Canada comes into the picture.

3. The role of OPC

The OPC is an independent agent of Parliament. Meaning, it does not report to a Minister.  It reports directly to Parliament.

It is free to challenge government, criticize government policies and procedures and in fact it is mandated to do so to ensure compliance with the Privacy Act, which covers the entire federal Public sector and the Personal Information Protection and Electronic Documents Act which covers the private sector in those provinces where there is no legislation protecting privacy in the private sector.

We ensure compliance through various functions: we investigate complaints where a person alleges that his our her privacy rights have been violated; we conduct audits of organizations to ensure they properly protect privacy; we review Privacy Impact Assessment of institutional programs or policies to ensure that when they are developed all the privacy implications are addressed and mitigated as necessary; we analyse government polices and support Parliament in their review of legislation that may have an impact on privacy, we conduct research to ensure we are always on top of technological and legal developments in relation to privacy - it is a very fast developing field - and, finally, we have outreach activities to ensure professionals and citizens are educated in relation to the right to privacy.

Specifically in relation to DNA databanks, we are a member of the National DNA Databank Advisory Committee and I act in that capacity, we support Parliament in the review of DNA legislation such as the DNA Identification Act and we have made genetics one of our policy priorities along with national security, technological developments and identity management.

4. Emerging issues

So now that you know our role and our approach, let me turn to our position on some of the emerging issues relating to DNA analysis.  I have chosen to address the issues that have been raised before Parliament as proposed amendments the DNA Identification Act.

So I will talk about:

  • Inclusion in the DNA databank of evidence upon arrest
  • Familial searches
  • Victims profiles
  • Missing persons Index and
  • Expansion of the list of designated offences.

4.1. Inclusion in DNA Databank upon arrest

The central privacy consideration here is this: according to the principles dictated by the courts on the reconciliation of privacy and security, does mere suspicion, which is all we have upon arrest, justify such a deep and consequential invasion of privacy as the retention of DNA in a DNA Databank? In reviewing two cases, that of “S” and that of “Marper” , in 2008 the European Court of Human Rights has squarely answered this question in relation to the UK Databank: It's NO.

The argument of necessity to ensure public safety does not exist, or at least, does not outweigh the invasion of privacy because the personal information retained is not relevant.  It amounts to including in the DNA Databank, and therefore retaining, extremely sensitive personal information of persons who could be, in spite of the arrest, law abiding citizens.  Arrest cannot lead to such a diminished expectation of privacy and the questionable relevance to law enforcement of retaining DNA from any person arrested, does not justify the privacy intrusion.

The violation of privacy would not be proportionate to the law enforcement objectives since it has not been demonstrated to materially improve law enforcement.

In fact, the amount of DNA data, relevant and irrelevant, that would be retained if we opened it to collection upon arrest, could be so broad to be difficult to manage and in fact may decrease the effectiveness of law enforcement response.

4.2 Familial searches

Joel, Shawn and I spent about an hour on the phone discussing this issue, so I will try to be brief, but it is thorny.

The privacy consideration here are these: is it justified to target members of a family, deliberately, because they are the relatives of a convicted offender?  And, does being the relative of a convicted offender decrease a law abiding citizen’s right to privacy?

Perhaps before I go further, I should describe exactly what type of DNA analysis I am referring to.  By “familial searches”, we mean the specific targeting of persons who are relatives of a convicted offender because, during a DNA search, comparing Crime Scene DNA to the DNA databank, the analysis finds, not a match but a partial match, this indicating that the DNA sample may belong to a relative of a convicted offender.  This partial match would allow to seek authority to investigate relatives of that convicted offender.

The UK does allow familial searches, and, from the UK Tactical Advice on Using Familial DNA Intelligence, this is how it works:

  • in the case of a partial match, authorization for a familial search, meaning specifically targeting relatives of a convicted offender whose sample is in the DNA databank and is close to the DNA collected at the crime scene
  • authorization comes from a senior officer, on the basis of a number of criteria such as, relevance, other evidence that could rule any relatives etc...
  • if authorized, the familial search is performed, and will yield a certain number of individuals who will be interviewed;
  • if the interview or the collection of additional evidence on the relative confirms suspicions, a judicial warrant is sought to collect a DNA sample.

The UK reports a 25% success rate in relation to familial searches but, I understand it comes at the end of a very cumbersome process, and huge investment of efforts.

This 25% success rate means that in 75% of cases, the person whose DNA has been forcibly collected, simply for being the relative of a convicted offender, has seen his privacy rights significantly reduced for no other reason than kinship.

Would we consider it reasonable that relatives of an offender would have a reduced expectation of privacy just because of that relationship?

And yet, there is that 25% success rate and there are those very compelling cases that make you pause.  For example, there have been very serious crimes, where forensic analysis yielded an almost perfect match and, through a familial search, led to the arrest of a brother, who happened to be a serial rapist.  There have also been cases where an innocent man has been exonerated, on the basis of a familial search

But significant doubts remain on the legal, moral and operational aspects of familial searches:

  • Do we accept that the DNA Databank be, de facto, extended to anyone related to a convicted offender whose DNA sample is in the databank, for no other reason than that relationship?
  • Are we comfortable with the deliberate targeting of presumed innocent people, whose DNA has never been subject to inclusion in the DNA databank – a process that includes a judicial decision at the end of trial that leads to a conviction?
  • Do we want to use relatives as informants against each other?
  • And, is it even useful: a partial match can be anyone – not necessarily a relative; hence, it could send the investigation in a completely false direction.

Should familial search be considered in Canada, in the continued absence of robust evidence of its usefulness for law enforcement, our office would object.

I refer to the legal principles applicable in this country in relation to ensuring privacy and security: we would seek demonstration that familial searches are in fact necessary to ensure public safety, that the regime established to conduct them would ensure proportionality between the invasion of privacy and the law enforcement objectives that would be pursued and we would insist that the effectiveness of familial searches be demonstrated to be continued.

At this point, the effectiveness of familial searches is in doubt, its success rate and application is not well understood, even among law enforcement agencies and, therefore, we would not support it.   

4.3 Victims profiles

Another proposal in relation to DNA databanks is the creation of a victims’ profile, in the hope that it could assist in criminal investigations. Obviously, in this case, DNA would be obtained only upon consent.  The privacy consideration here is this: how do you get valid consent?  The victim may be deceased, the victim may be a child or the victim may not be in any state to provide informed consent. 

Legally, consent, to be valid, must be informed, full, free and voluntary.

This raises a variety of issues:

  • If the victim is dead, could the family, or should the family be empowered to provide consent?
  • Considering the complexity of genetics and the field of DNA, as well as the potential of DNA information, how much information doers the victim or the family need to receive to provide informed consent?
  • What should be the conditions of retention of DNA in the case of a victim?
  • Who would be responsible for holding DNA information of victims?
  • How could it be used? To resolve only the crime against that victim or for other crimes as well?

Even if such an index was constituted, it must be understood that it would of completely distinct nature than the Convicted Offender Index and therefore would be held according to a governance structure that would protect it from being misused.

Finally, effectiveness of establishing victim’s profiles through DNA information has never been demonstrated.

4.4 Missing Persons Index

The proposal for a Missing Persons Index is very similar. The idea is to have a DNA Databank with the DNA samples of relatives of missing persons so that human remains can be identified. The purpose is to bring closure to very painful situations. It is strictly humanitarian.

The privacy consideration here is, again, meaningful consent and governance structure for the retention of the information.

We do not object to the creation of a missing person’s index, based on DNA samples, but level of protection that must be afforded to DNA information in the creation of such an Index would have to ensure its independence from other indices and the highest security provision for its content.

In this case, I understand that the reluctance to create a Missing persons Index is mostly related to whether to how effective the procedure is over other approaches commonly employed to identify human remains, that are far less invasive such as fingerprints or dental records.  We really should look at DNA samples as a last resort. I understand it is still under policy consideration.

4.5. Expansion of designated offences

Finally, there is always a push, and I understand its motives, to expand the list of designated offences that would allow inclusion in the DNA Databank.

Here, all the principles established in Canadian law by the Charter and the courts, come together and the privacy consideration are, for every proposed new designated offence:

  1. Is the inclusion of the offence, with the invasion of privacy it entails, necessary to ensure safety?
  2. How would that invasion of privacy be proportionate to the security objective?  For example, is the crime, and therefore the security risk, serious enough to justify it?
  3. Would it be effective from a law enforcement point of view to include this offence? And finally,
  4. Aren’t there less intrusive alternatives to maintain law and order or to address this offence?

In answering these questions, we must consider this:

  • DNA information is not just an identifier - it contains a veritable life code and the courts have afforded the highest level of protection for that very reason
  • While DNA from crime scenes of minor offences may lead to the resolution of major crimes, generally, minor offences constitute a minor security risk and therefore do not justify a major limitation to a human right
  • DNA information is not relevant to all crimes and therefore should not be collected unless it is proven that it would be relevant to the resolution of a proposed designated offence.

In conclusion, I would like to repeat the first thought I shared with you: the protection of privacy and the protection of security actually complement each other - why?

Because they both rest upon a strategic, streamlined approach: security, or law enforcement response, will not be effective if it is not focussed, if it does gather only the information that is material to achieve its purpose. And the protection of privacy will not be met unless the collection of personal information is kept to the minimum necessary to achieve a law enforcement focus. So the two come together in a minimalist approach that is focussed on relevance.

What does it mean to move forward on DNA databanks, to address all the emerging issues that come with scientific developments and changing crime trends?  It means that the reliability of DNA information will constantly have to be reassessed to justify the privacy invasion that its collection entails and it means that we, the privacy professionals and the law enforcement professionals, will have to work together, rather than at odds, to protect both privacy and security since they both define the society we have chosen to live in.

As a start, I welcome your thoughts, questions and comments.  

Thank you.

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