68 Am. U. L. Rev. 1015 (2019).

* Junior Staff Member, American University Law Review, Volume 68; J.D. Candidate, May 2020, American University Washington College of Law; B.S., Political Science, 2015, Drexel University.  I am grateful for the hard work of the staff of the American University Law Review, Professor Robert Tsai, and Professor Elizabeth Beske, all of whom provided valuable assistance in preparing this piece for publication.  I would like to thank my husband, Johnathan Guest, for his support throughout my law school career and my sister and parents for encouraging my love of learning.

DNA testing, once an expensive and rare technology, has expanded rapidly in the past few decades.  Now, individuals can send away a DNA sample for testing at a private company and receive a report with their ancestors’ countries of origin and their potential for developing genetically linked diseases within a few weeks. Individuals can even upload these test results to open source websites in order to connect with other individuals who may be related to them.  Law enforcement has recognized the value in this technology and begun uploading DNA samples from unknown suspects in order to solve long-cold cases, including the high-profile “Golden State Killer” case.  However, open source DNA databases are unlike law enforcement databases.  In an open source database, there is no guarantee that an uploaded DNA profile is secure, even if the user is supposedly anonymous. Additionally, the DNA testing technique used to test the DNA sample reveals far more information about the individual, including sensitive information about the suspect’s ancestral origin and potential for developing certain genetically-linked diseases.

This Comment argues that when law enforcement uploads a suspect’s DNA to an open source DNA database, it violates the suspect’s constitutional right to privacy.  A suspect retains a privacy interest in some kinds of sensitive information, and by uploading the sample to a website accessible to anyone, law enforcement has violated that privacy interest.  This Comment further argues that the right to privacy of the suspect’s family is also violated by law enforcement use of this technique. Because DNA is shared between genetic relatives, law enforcement is also releasing information that implicates the suspect’s genetic relatives any time it uploads a genetic sample to an open source database.