Investigative forensic genetic genealogy (iFGG) is a relatively new technique that combines genetic and traditional genealogy to generate suspect leads in a criminal investigation. It has been successfully used to solve cold cases in the United States, the most famous of which is the Golden State Killer case in 2018. In Europe, pilot studies have been carried out in Sweden, Norway, and the Netherlands. The United States Department of Justice issued an interim policy in 2019 to regulate iFGG so that law enforcement uses it within the bounds of privacy. There is no similar regulation at the European level to date. However, law enforcement use of genetic data – albeit using short tandem repeat (STR) profile data compared the more sensitive single nucleotide polymorphism (SNP) profile data used in iFGG – had been a subject of case law at the European Court of Human Rights (ECtHR), the most famous of which is the case of S. and Marper v. the United Kingdom in 2008. The ECtHR has classified STR data as protected data under Article 8 of the European Convention on Human Rights (ECHR) on the right to respect for private life and its use by law enforcement in criminal investigations has been allowed in the presence of appropriate safeguards that protect data privacy. This dissertation of Oliver Tuazon argues that a future case before the ECtHR involving SNP data via iFGG will also fall under the same classification arguably with its own safeguards. The thesis evaluates the legitimacy of iFGG within what we name, the ECtHR four-fold privacy test: the preliminary interference test, the lawfulness test, the legitimate aim test, and the proportionality test. The use of iFGG is an interference with an individual’s right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR). Its lawfulness requires the creation of an iFGG-enabling law or amendment of an existing law to allow iFGG use by law enforcement. Its legitimate aim – criminal identification through data derived from DNA deposited at crime scenes – falls squarely under Article 8 § 2 ECHR. The proportionality of its use largely depends on the provision of appropriate safeguards in an iFGG-enabling law that would protect genetic data privacy. Although iFGG is a powerful tool to help solve cold cases, it has to stand on a solid legal ground that allows its use while respecting the right to privacy. It should be able to withstand any legal challenge before the ECtHR in the future. The safeguards identified in this article, if incorporated in an iFGG-enabling law, hope to prevent such legal challenge.
Tuazon defended his dissertation on May 13th at the Leiden University. Promotors: Gerrit-Jan Zwenne, LLM, PhD and Bart Custers, MSc, LLM, PhD.
Oliver M. Tuazon
Legitimacy of Investigative Forensic Genetic Genealogy (iFGG) within the Art. 8 ECHR regime
ISBN 978 94 6536 101 7
Request printed copies of the book: send an email to omtuazon@up.edu.ph