DNA Phenotyping: From Criminal Investigations to Surveillance

By Yirah Shih

On a winter’s day in 2011, Candra Alston and her 3-year-old daughter Malaysia Boyki were found murdered in Columbia, South Carolina. Despite the collection of approximately 150 DNA samples and interviewing over 200 individuals, the case remained unsolved (Wolinsky, 2015). Four years following the double homicide, Columbia Police uploaded a computer-generated sketch of a person of interest for the case. What was unusual about this composite image, was that it was re-created solely based on the DNA sample found at the crime scene (Andrew Pollack, 2015). This became the first case solved utilising DNA phenotyping, with the killer arrested two years later, in 2017 (Associated Press & Dailymail.com Reporter, 2017).

DNA fingerprinting has revolutionised the field of forensic science since its discovery in the 1980s (Saad, 2005). The developments of related DNA analysis techniques have unveiled the truth behind various cold cases, including the Hwaseong serial murders (Yonhap, 2019) and the Golden State Killer (Wickenheiser, 2019). Yet on the other hand, the match rates of crime scene DNA evidence to DNA data from known individuals, and their links to investigation outcomes is a contested topic, with many citing limitations in DNA databases asa hindrance to criminal investigations (Amankwaa & McCartney, 2019).

The emergence of DNA phenotyping in recent years seems to be a probable solution to the suggested constraints. DNA phenotyping predicts the externally visible characteristics (EVCs) of unknown persons relying solely on DNA samples (Kayser, 2015). Its success in uncovering the murder of a young Canadian couple in Seattle 1987 (The Canadian Press, 2018) and the murder of April Tinsley in Indiana 1988 (Snow, 2015) indicates the potential for DNA phenotyping as an alternative approach in criminal investigations.

Regardless of its prospects, disputes pile up as forensic DNA phenotyping (FDP) becomes increasingly prominent in criminal investigations. The uncertainty of FDP results has raised numerous concerns. Critics claim that EVCs could easily be altered by cosmetic means or surgeries. Criminals could, therefore, adopt falsified identities and avoid recognition or trace, negating the use of FDP (Kayser, 2015). In addition, the human genome is largely influenced by environmental and epigenetic factors; its fluctuating effects and complexities aggravate the difficulty in identifying suspects through FDP (Seo et al., 2017).

Ethical considerations regarding FDP have sparked further discussions. One approach of FDP involves the assay of ancestry informative markers (AIMs), which are polymorphism sets of a DNA sequence that can be used in estimating the continental origins of an individual’s ancestors (National Human Genome Research Institute). Scholars fear law enforcements might stereotype suspects based on presumptions of their ethnicities and appearances (Wailoo, Nelson & Lee, 2012). This unintentional racial discrimination during criminal investigations could exacerbate stigmatisation and escalate conflicts between ethnic groups within the society (Samuel & Prainsack, 2019).

The debate in terms of privacy has not reached consensus either. Many pointed out that EVCs are phenotypic traits known to every individual that has seen the person, thereby suggesting that it is not applicable to categorise EVCs as a type of private data (Kayser, 2015). Others argued privacy infringement could remain relevant in certain situations. In particular, the prediction of sex through FDP is deemed sensitive owing to its confidentiality, with sex-linked genetic diseases and gender identification as notable examples (Slabbert & Heathfield, 2018). The storage of FDP data poses additional complications about privacy. Questions surrounding when and how the data should be destroyed often have to compromise with the right to appeal by the defendant, further prompting challenges in data protection (Samuel & Prainsack, 2019).

The launching of the Hong Kong Covid-19 Universal Community Testing Programme in early September 2020 raised apprehension over biometric data privacy (Lee et al., 2020). Many associated this to the Chinese authorities’ nominal mandatory health check programme in Xinjiang, China (Wee & Mozur, 2019). Back in December 2019, it was reported that Chinese researchers were exploiting DNA phenotyping to develop a comprehensive mass surveillance and facial recognition system (Jee, 2019). It was revealed that the research was based on biometric data, including DNA samples, fingerprints, iris scans and voice recordings, collected from millions of Uighurs along with those detained in ‘re-education’ camps under the guise of free medical check-ups (Haas, 2017; Wee, 2019).

Controversies heightened as difficulties of interviewing Uighurs made it practically impossible to verify whether consents were given prior to obtaining the samples (Offord, 2019). The government claimed that the scheme was intended ”to improve policies aimed at poverty alleviation and to target social stability” (Haas, 2017). However, ethicists fear the possibility of intensifying racial profiling and justifying oppressive ethnical discriminations through DNA phenotyping. Quoted by the professor of law and bioethics at the University of Wisconsin-Madison, Pilar Ossorio, “What the Chinese government is doing should be a warning to everybody who kind of goes along happily thinking, ‘How could anyone be worried about these technologies?’” (Wee & Mozur, 2019).

From criminal investigations to surveillance, DNA phenotyping has provided a new perspective for forensic science, notwithstanding its conceivable application for reinforcing control and sovereignty. Subsequently, legal regulatory frameworks are crucial in maximising the benefits of DNA phenotyping, whilst minimising its derived concerns and potential abusive use. Current legislations of DNA phenotyping vary between different countries. Netherlands and Slovakia are the only two EU member states that have imposed explicit laws to permit DNA phenotyping, whilst many others allow its practice given that it is in compliance with existing laws (Schneider, Prainsack & Kayser, 2019). With further amendments of state regulations, sanctions would apply to parties violating ethical aspects of DNA phenotyping. The expansion of these identification analyses from DNA data, coupled with the increasing concerns for individual privacy and surveillance rights has resulted in an unprecedented era of contention in the field of bio-surveillance; future progress and capabilities of DNA investigations will require substantial reconciliation between these contesting perspectives. 

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