Against Black-Box Forensics: The Pandora’s Box of Forensic Genetic Genealogy

There have been six, that we know of, false arrests of completely innocent people based on facial recognition technology. It is very hard for these people to learn why they’ve been arrested because law enforcement policy is to not reveal use of facial recognition software. Instead, a facial recognition match is considered a “tip” or a “lead” and the software essentially “the informant.” In an especially egregious recent case the detective wrote on the arrest affidavit “I received a tip from a credible source.” It took two lawyers and several journalists to uncover the truth.

As criminal investigations come to rely increasingly on cutting-edge technology, more and more of the evidence is being protected from the defense and the public in exactly this way. The method of suspect identification is placed in a black box of obfuscation and misdirection leaving the defense no way to discover, and no way to challenge, its genesis. And this trend is only increasing.

A major battle in the justice system right now centers on forensic, or investigative, genetic genealogy. Law enforcement wants to use it (and is using it far more often than guidelines allow) and they want to not have to reveal to the defense during discovery that it was used. Courts are agreeing, and in large cases and small the prosecution is successfully setting precedent, building a firewall between the defense and the evidence.

This is a violation of the Sixth Amendment. And it’s incredibly dangerous, even though the argument for protecting the IGG process seems plausible and rooted in privacy ethics.

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CeCe Moore is the go-to expert and evangelist for the emerging field of investigative genetic genealogy. She is eloquent and lovely, ethical and rigorous, an articulate ambassador of the future of identity investigation. She herself remains disciplined and persuasive, an advocate for best practices and privacy, but the forensic genetic genealogy genie is out of the bottle.

Briefly, genetic genealogy is a method of using DNA to uncover family relationships. It has been used for years for people to discover their ancestors by creating family trees. It has been used for adoptees to identify their birth parents. In the 2010s enthusiastic and skilled amateurs began to assist law enforcement with identifying John and Jane Does and matching them up with missing persons cases. And around 2016 several genealogists working on separate cases segued from identifying the unknown dead to identifying killers in cold cases. Thus the field of forensic genetic genealogy was born. The best and most engrossing history of such a case is chronicled in the Bear Brook podcast; it’s excellent and google-able. Scores of cold cases were solved in the matter of a few years. And simultaneously law enforcement realized the same method could be used in active cases.

Practical application raced ahead of the law. In fact, work constructing family trees that might have taken months could now be done in hours with the help of probability matching software. There were no protocols or guidelines. It was mainly through missteps and overreach that a patchwork of limitations took shape on the part of the largest consumer DNA testing companies, various state governments, and law enforcement agencies.

Genetic genealogy is an amateur-generated field, pioneered by women. As yet there is no accreditation, no major or graduate degree. People came to it through hobby, or obsession. But now the FBI has its own genetic genealogy department. There are several reputable private labs that provide both DNA profile creation (which is different, and more extensive, than traditional law enforcement DNA profiles) and genetic genealogists who create the family trees from which suspects can be identified.

Moore, who works for one such lab, Parabon Nanolabs, is passionate about the possibility of entirely eradicating serial rape and murder by identifying suspects early, in the first instance, via forensic genetic genealogy. She mentions that one of the cases she worked on in fact exonerated a convicted prisoner. She understands that missteps during early adoption threatened the future of the practice.

In one case a completely innocent man was nabbed for a custodial interview and compulsory DNA sample after a detective ran a crime scene sample through Ancestry.com. The fallout was that both 23 and Me and Ancestry.com shut off access to law enforcement without a warrant. This exponentially limited the number of DNA profiles genealogists had to work with. In addition, a partial match to a relative should not have been sufficient probable cause for a DNA swab warrant.

Law enforcement now almost exclusively excludes or verifies suspects developed via IGG by using what they term an “abandonment sample” — in other words they follow the suspect around until the person leaves some DNA in a public place. Could be a cigarette butt, a soda can. In the case of the Gilgo Beach Killer suspect it was a pizza crust.

Sometimes genealogists have too few relatives’ DNA in the cooperating databases to construct a full family tree. At this point detectives can literally go to distant relatives and ask for their DNA to help construct the tree. Unfortunately this practice, too, has seen some wobbly ethics. One detective in a cold case rape-murder told family members he was collecting DNA to help identify a Jane Doe, someone they were related to who had been murdered but not identified. This was a lie. The DNA collection was to narrow down suspects, and one of the people who supplied her own DNA on the basis of this lie was the mother of the man who is now in jail awaiting trial.

One detective was so excited about the power of this new investigative tool, and so frustrated with the limits on law enforcement access to the main consumer DNA databases that he decided to get a warrant to search the entire database, and suggested this to fellow cops at a conference. The New York Times wrote about it, there was backlash, and CeCe Moore had to talk him off the ledge.

Right now Justice Department guidelines suggest investigative genetic genealogy should be used only for either cold cases or active cases of murder or rape where law enforcement has exhausted all conventional leads. Best practice is to submit the crime scene DNA profile to one of two much smaller databases that allow users to opt in to law enforcement access.

But these flimsy guardrails are easily breached. One detective used IGG in an active simple assault case. Police regularly access the supposedly off-limits consumer DNA profiles, reasoning (as Moore admitted in a recent interview) that they should have at least as much access as the general public.

And it’s all hidden. The FBI advises local law enforcement agencies they work with to disguise the use of IGG in identifying the suspect in search and arrest warrants. Instead the probable cause affidavit is a lie of omission called “parallel construction.” Evidence discovered because the suspect was identified by IGG, and subsequent to that identification, is instead put forth as independently discovered evidence leading to the identification, an Ouroboros, a snake eating its own tail.

Just as with facial recognition matches, the rationale for non-disclosure is that IGG produces a mere “tip” or “lead.” Also that the family tree is composed of “genetic informants” whose identity must be protected. Also that genetic genealogy is not “science” and thus is exempt from the legal disclosure and discovery requirements that govern “lab work” and other forensic aspects of police investigations.

CeCe Moore offers seemingly plausible ethical reasons for nondisclosure, as well. She says that, even of they opted in, people would be appalled to learn they were related to the perpetrator of a horrific crime or series of crimes. She says that disclosing the family tree to the defendant could lead to witness intimidation or revenge. She cites a case of a violent offender identified by IGG who could not be prosecuted for jurisdictional reasons, and who, free, might be inclined to hurt those who unknowingly contributed to his identification.

She says that IGG should never form the basis for arrest, but only serve as a tip or lead for further investigation. She says she has been subpoenaed very many times and has presented in closed evidentiary hearings, but never had to testify in court because, in each case, invisibly setting precedent, the judge has ruled that IGG itself is not evidence, but simply a tool, that produced a tip, and the subsequent evidence gathered on the basis of that tip is in fact the only discoverable evidence.

Of course the real reason for all this secrecy is not in fact ethics or witness protection. The real reason is that the depth and breadth of what DNA reveals about people, how many people’s DNA is being accessed, and how many ways DNA is being used to identify and track people, would shock Americans. Civil liberties groups are already pushing for transparency and legal limitations; what law enforcement fears is public awareness leading to backlash leading to people opting out of sharing their DNA, thus putting the brakes on this exciting new tool.

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Black Box forensics are dangerous. They’re dangerous for civil liberties, they’re dangerous for fair trials, they’re dangerous for future miscarriages of justice that will be impossible to correct because the faulty evidence was developed in secret and never memorialized in reports or records.

Here is just a sampling of cautionary tales from the history of forensics in the justice system:

If you’ve ever watched Forensic Files you’ve watched multiple cases of junk science. In fact, some of the most popular episodes and dramatic investigative triumphs chronicle what we now know are wrongful convictions of people subsequently fully exonerated.

Former state-of-the-art forensics now completely debunked include hair matching, fiber matching, fingernail ridge! matching, toolmark comparisons, forensic dentistry (bitemark analysis), in fact all pattern-matching analysis up to and including fingerprints, once considered such a gold standard of identification that DNA was originally introduced to juries as “genetic fingerprinting.” Turns out all pattern matching is subjective, disguised by experts with quasi-scientific language like “consistent with” and “to a reasonable degree of scientific certainty.”

The FBI fingerprinting lab, absolute state-of-the-art and best in the world, misidentified a suspect in the Madrid train bombing terrorist attack, surveilling and then arresting a completely uninvolved American lawyer. The Arizona State Police crime lab made an identification and much-publicized arrest in the Phoenix Freeway shooter case on the basis of a ballistics “match.” The police interview in that case should be mandatory watching for all detectives as they tell this completely innocent guy they’ve got him dead to rights and denial is futile.

Ballistics matching is still being presented in court but is gradually being discredited in major court rulings that cite the tragically long list of wrongfully arrested and convicted people at whose trials “ballistics experts” confidently explained “lands and grooves” and touted “peer-review analysis.”

These fallen forensic disciplines have been felled, of course, by DNA, or by digital evidence placing suspects far from the scene of the crime.

Digital evidence and DNA evidence are ascendant. They’re more precise, and with precision comes hubris.

Facial recognition can be wrong. Cell phone pings for location can be misleading. ShotSpotter can be retro-fitted. License plate readers make mistakes. Detectives can get in the weeds not understanding the technology behind the data returned by subpoena from cell providers and Google and Apple and social media companies. Touch DNA is so sensitive now, samples can be worked up from such a tiny number of skin cells, that an innocent man in California was arrested for a murder because his DNA was found on the victim — an EMT had treated him earlier the same evening that he responded to the crime scene and had transferred the DNA.

And then there are lab mistakes and things that are less mistakes than unscrupulous or disingenuous results returned by overzealous law enforcement who believe being on the side of the angels excuses a little fudging.

A popular true-crime documentary, The Staircase, chronicles a murder case in which the first conviction got thrown out because of fudging in the FBI trace evidence lab. Henry Lee, once the most famous and sought-after forensics expert in the world, was just ruled liable for fabricating evidence after two men convicted of murder as teenagers were exonerated after 30 years in prison. In Massachusetts a single technician in the drug analysis lab was responsible for tens of thousands of dubious convictions (a recent news article revealed that she may not have acted alone; that more people at the lab may have been involved). In Oklahoma, the in-cold-blood-like slaying of an older couple in a remote farmhouse was “solved” by both a confession and a corroborating drop of blood in the suspect’s vehicle, discovered by hotshot crime scene analyst David Kofoed. It was a false confession and it was planted blood. (Kofoed was convicted of manufacturing evidence but insists it was cross-contamination.)

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Over time, every forensic technique that could be misapplied or fudged, has been. Any black-box process will be abused. Any forbidden database will be accessed. It’s irresistible, and done in the name of justice and public safety, as are many erosions of civil rights.

It’s not necessary to argue that forensic genetic genealogy is or will some day be junk science, nor that labs are fudging or planting evidence, to argue forcefully that black box forensics are inherently dangerous. We are moving into a law enforcement and legal landscape in which evidence is largely invisible.

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The argument from genetic genealogists in response to this litany might be that their discipline is distinct because it doesn’t produce actual evidence used in court, but merely provides a pointer toward potential suspects to be investigated. When it is successful, the suspect’s DNA is obtained and is a perfect match to the crime scene, so the scaffolding of IGG can be discarded as inconsequential.

But what that leads to is a digital and biometric panopticon entirely invisible to the justice system, inaccessible to scrutiny. It also leads to a profound misunderstanding in court, in the media, and on the part of the general public about what is actually going on in police investigations. I have written about similar lack of transparency in black-box digital forensics with regard to proprietary, trade-secret private companies. Facial recognition; ShotSpotter; OnStar; Motorola vehicle tracking; iPhone geolocation, orientation, and movement; Cellebrite — all inside a black box that the defense must challenge by inference and luck.

I have read credulous accounts in the media recently of miraculously solved cold cases in which IGG is never mentioned even though it was clearly the sole reason the crime is solved. The one that stands out is a church pastor who was just arrested for the sexual assault and murder of a child — the daughter of another pastor, some 30 years ago. In the news reports the solve is credited to an old diary kept by one of the girl’s childhood friends that recounted some creepy behavior of the pastor toward her. That’s not evidence; that’s window dressing. What obviously happened is that a cold case detective decided to submit a semen sample to a lab for IGG and they identified the pastor and then resurrected the diary (that they should have paid more attention to 30 years ago).

A similar case is the man recently convicted in the Rebekah Gould cold case. IGG was never mentioned in any investigative or court documents. The reason we know it was used is because when Alabama state police reopened the case last year they began collecting DNA samples from a certain family. We only know this because of YouTube’s voracious appetite for true crime and how content creators have begun to FOIA anything connected to click-worthy investigations. There are two recent audio interviews of brothers in which the detective asks for a DNA sample, clearly to help construct the family tree which then yielded the perpetrator, a first cousin.

This invisibility is destructive to consensus reality. We need to understand the world as it is in order to make decisions, craft legislation, in order to navigate the unstoppable wave of intrusive, powerful, ubiquitous tracking and identifying technology. Trials cannot become de facto lies of omission in which the methods of generating evidence are obfuscated to protect those methods and the rights of the accused be damned.

It is not a conspiracy theory and not science fiction but current reality that vast biometric databases are being stood up, that phones are being caught up in geofencing dragnets, that infrared detectors can tell who’s home from outside, that our images are captured and stored multiple times a day, that our routines and haunts and sleep habits are virtually public knowledge, bought and sold by data brokers and shared with law enforcement.

What’s to stop the FBI from constructing a comprehensive-everyone family tree? What’s to stop law enforcement from adding witness DNA, taken ostensibly for purposes of “exclusion,” to a secret genetic database to fuel faster IGG?

Already in Tennessee, legislators have put forward a bill to collect DNA from all felony arrestees, as opposed to those convicted. The perfectly predictable consequence will be more felony arrests in a quest for more DNA. (Then the media will talk about the “crime wave” because of a rise in felonies, and the solution will be more police and more surveillance technology.)

Already some states allow familial matching results from criminal DNA databases. This is distinct from although often conflated with IGG. This uses traditional DNA profiles (the STR process) but allows non-exact match returns to be seen by the detective. These close matches are calibrated to be an immediate family relationship (parent/child or sibling) and so a suspect can be identified even if they themselves have never been convicted of a crime. Last year a detective ran DNA collected from a victim’s rape kit and charged her with a crime.

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Law enforcement likes shortcuts and often doesn’t understand the technology they’re using let alone its logical and ethical ramifications.

Investigative genetic genealogy will be used for less and less severe crimes and may well lead to general searches, like running a license; just run the DNA see if any hits come back. The waivers anyone caught up in a major investigation sign are extremely broad with no privacy guarantees. What if they just start running everybody to see if they can “clear some crimes.” They can hide they ever did that and release a plague of parallel construction. Hell, why not get “abandonment DNA” from random people to add to the database? Who needs a warrant, or even a case?

None of this is far-fetched. In 2022 police subpoenaed a newborn baby’s blood sample to conduct investigative genetic genealogy.

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CeCe Moore wants serial rapists and murderers caught early. She wants innocent men exonerated and dangerous criminals nipped in the bud. She wants IGG shielded, she says, for the safety of “genetic informants” and so that the general public does not withdraw its profiles from the two cooperating databases. I will not compare her to Oppenheimer but I will say the road to hell is paved with good intentions.

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Extremely good interview with Moore about the state of the art and ethics

I wrote about genetic genealogy and the Bryan Kohberger case (Idaho 4)

I wrote about black-box digital technology in the Alec Murdough case

The Intercept wrote about access and ethics violations in forensic genetic genealogy on the exact day I published the above piece. It is very good & contains startling new reporting

Blog post by prominent genetic genealogist who really understands it’s an ethics minefield (and just testified so in a hearing for the Moscow, idaho murder case)

New York Times article about law enforcement greed to search DNA databases. 2019. by Kashmir Hill, one of the leading investigative journalists in this area.
https://www.nytimes.com/2019/11/05/business/dna-database-search-warrant.html

Detective lies to mother of suspect to obtain DNA

Judge throws out DNA evidence due to illegal access to sample (2023. this one is very important. exact match, but illegally accessed)

Police seek newborn baby’s blood for IGG

Detective uses IGG in assault case resulting in the GED Match database limiting future access

Cellebrite keeps phone extraction technology secret from courts [this issue is clearly in the air; this article is from August 21 2023]

Ancestry.com is now owned by Blackstone, a private equity firm

Phoenix Freeway Shooter Interrogation (guy was 100% innocent)