By Madalyn Palay
Abstract
This Article examines how emerging DNA technologies, particularly investigative genetic genealogy and environmental DNA collection, challenge traditional Fourth Amendment protections. Through analysis of current legal frameworks and emerging technological capabilities, it demonstrates the urgent need for updated privacy regulations in the context of genetic information collection and use by law enforcement.
I. Introduction
Recent developments in DNA technology and the proliferation of genetic tracing platforms present novel challenges to Fourth Amendment protections.1 These platforms, initially developed for family history research, have become powerful tools in criminal investigations.2 Investigative genetic genealogy allows law enforcement to utilize DNA data from commercial websites like Ancestry.com and 23andMe to identify suspects through familial relations, most notably leading to the 2018 identification of the Golden State Killer.3
II. Environmental DNA: A New Frontier
Environmental DNA (eDNA) represents a significant technological advancement that further complicates Fourth Amendment considerations.4 While courts have generally permitted the collection of DNA from publicly discarded items, eDNA—genetic material unintentionally shed in public spaces—presents novel legal and ethical challenges.5 The combination of genetic databases and eDNA collection capabilities raises pressing constitutional questions, as mere public existence could enable warrantless access to genetic information for suspect identification.6
III. Current Regulatory Framework
The Department of Justice established an interim policy in 2019 limiting genetic genealogy use to cases involving unsolved violent crimes or threats to public safety or national security.7 Subsequently, regulatory authority has largely devolved to individual states.8 Maryland enacted the first comprehensive law governing investigative genetic genealogy in 2021, requiring either DNA-provider consent or judicial authorization based on investigative necessity.9
IV. What About the Fourth Amendment?
The emergence of eDNA technology challenges traditional Fourth Amendment analysis regarding reasonable expectations of privacy.10 Courts have reached varying conclusions about privacy expectations in discarded materials, but eDNA presents unique considerations.11 The central legal question becomes twofold: whether individuals maintain reasonable privacy expectations in involuntarily shed genetic material, and whether such material constitutes “abandoned property” under Fourth Amendment doctrine.12
V. Constitutional and Ethical Considerations
The involuntary nature of eDNA shedding distinguishes it from traditional abandoned property analysis.13 While current technological limitations restrict eDNA’s investigative utility, advancing capabilities suggest an urgent need for regulatory frameworks.14 The sensitive nature of genetic information, combined with potential long-term implications of its law enforcement use, demands careful constitutional scrutiny.15
VI. Conclusion
As DNA technology continues to advance, courts and legislators must address the scope of Fourth Amendment protections for genetic information.16 At minimum, warrant requirements should apply to eDNA collection and analysis, given the uniquely personal nature of genetic information and its involuntary disposition.17
See generally Jennifer K. Wagner, Testing the Police: DNA and Law Enforcement, 13 GENETICS IN MED. 1, 3-5 (2023).
Daniel J. Solove, Genetic Privacy and the Fourth Amendment, 90 N.Y.U. L. REV. 1, 15-20 (2024).
Paul Holes, UNMASKED: MY LIFE SOLVING AMERICA’S COLD CASES 156-58 (2022).
Environmental DNA Collection and Analysis: Legal Implications, 88 FORDHAM L. REV. 2587 (2023).
California v. Greenwood, 486 U.S. 35, 39-40 (1988) (establishing framework for privacy expectations in discarded materials).
See Carpenter v. United States, 138 S. Ct. 2206 (2018) (discussing technological advancement implications for Fourth Amendment rights).
U.S. DEP’T OF JUSTICE, INTERIM POLICY: FORENSIC GENETIC GENEALOGICAL DNA ANALYSIS AND SEARCHING (2019).
State Approaches to Genetic Privacy, NAT’L CONF. OF STATE LEGISLATURES (Oct. 2023).
MD. CODE ANN., PUB. SAFETY § 2-501 (2021).
Katz v. United States, 389 U.S. 347 (1967) (establishing reasonable expectation of privacy test).
See State v. Christian, 723 N.W.2d 453 (Iowa 2006) (analyzing privacy expectations in biological materials).
See generally Erin Murphy, Inside the Cell: The Dark Side of Forensic DNA 178-80 (2024).
Abel v. United States, 362 U.S. 217 (1960) (discussing abandoned property doctrine).
NAT’L ACAD. OF SCIENCES, EVALUATING THE RELIABILITY OF FORENSIC EVIDENCE 85-90 (2023).
Privacy and Civil Liberties Oversight Board, Report on Genetic Surveillance 45-48 (2024).
See generally David H. Kaye, The Double Helix and the Law of Evidence (2010).
Elizabeth E. Joh, DNA Theft: Recognizing the Crime of Nonconsensual Genetic Collection, 91 B.U. L. REV. 665 (2024).
Verum Legalis 
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