Photo: iStock
Photo: iStock

DNA profiling bill: More safeguards needed

Greater public consultation, more detailed scrutiny and concrete steps to include more safeguards are measures India could take to increase public trust

DNA can be an important tool in solving crime, but DNA databases also raise concerns about potential violations of privacy and human rights. DNA can be used to track individuals and glean information such as that related to paternity and health. A match with a crime scene DNA profile on a database can sometimes falsely implicate a person in a crime. The Forensic Genetics Policy Initiative, a global human rights project, is reviewing best practices for DNA databases worldwide to identify the most important safeguards. Unfortunately, India’s draft DNA bill is not a model of best practice.

A cornerstone of privacy protection worldwide is the principle of purpose limitation. This means that information collected for one purpose should not be used for a completely different one. India’s draft DNA bill is not compliant with this principle: it mixes up potential uses of DNA in solving crimes with civil issues, such as solving paternity disputes. This is a recipe for loss of public trust; in the UK, even police officers have been hesitant to volunteer their DNA to solve a crime if they think it might be used in a paternity dispute. This problem is unnecessary: DNA can be collected from the parties in civil cases when it’s needed. A DNA database does not need to be involved.

Even worse from the point of view of purpose limitation, the draft bill gives the government the powers to add other unspecified purposes to the list of uses of the database: a provision that goes way beyond DNA database laws in other countries. This might include medical research, which should require fully informed consent, something not provided for in the bill. It could even include government surveillance, since DNA profiles can be collected from teacups to identify who has been at a political meeting, or matched with other profiles to find a person’s relatives.

In another departure from best practice, the bill does not specify that stored genetic information should be limited to forensic DNA profiles (which are based on only parts of a person’s DNA): this means that private health information could be analysed without the knowledge or consent of individuals. It is not only the privacy of convicted people that is at risk. Innocent people, including volunteers, relatives of missing persons, or people falsely accused of a crime, could have their privacy breached in this way if no restriction on uses of the database is included in the law.

The bill allows a sample to be collected from a suspect for any offence without any judicial or other oversight. The number of persons potentially involved is vast, as arrest for a minor offence for which DNA evidence is completely irrelevant could still lead to an individual’s sample being taken. Lack of any judicial or other oversight would also allow people to be arrested simply in order to obtain their DNA. Samples can also be taken from volunteers, which could potentially be anyone in India. There is no specific requirement in the text of the bill for the individual or their parent or guardian to give informed consent.

Clear rules for the destruction of samples and removal of people’s records from the database are other missing safeguards. The bill does partly recognize this need, allowing suspects’ DNA profiles to be removed if they are not convicted or if their conviction is overturned. However, reliance on notification from the court means this provision may not be implemented in practice: a genuine commitment to timely deletions requires the retention of innocent people’s profiles to be made unlawful.

Further, the draft bill’s provision for deletions is incomplete, covering only suspects whose cases progress to court and not the many people who may be arrested and have proceedings dropped who, paradoxically, may have their DNA profiles retained indefinitely despite less evidence against them. Nor are there any provisions for the removal of DNA profiles of volunteers, including victims and relatives of missing persons.

In the UK, volunteers’ DNA profiles are now used only in the specific investigation for which they are relevant, rather than being entered and retained indefinitely on a DNA database, where the information could be open to misuse. There is also no provision for the destruction of people’s biological samples, such as mouth swabs, in the bill, although these contain significant personal information which is unnecessary for identification purposes. In the UK, most individuals’ samples are now destroyed within six months.

Another issue that has great importance for maintaining public trust is the oversight of the database and whether there is any independent regulation. The bill gives the DNA profiling board very broad powers and makes it exempt from civil or criminal proceedings. Although offences and penalties are defined, only the government or board can bring cases, so there is no redress for citizens who believe their DNA has been collected, used or retained unlawfully.

In effect, the board acts as the manager and advocate of the database as well as its regulator. The best practice would be to separate these roles and create a separate forensic regulator which can make an independent investigation if anything goes wrong, and an ethics board to provide independent scrutiny of ethical issues, such as the consent process for volunteers. Other important missing safeguards include a requirement for corroborating evidence in court, so convictions are not based on a DNA match alone, and a process to control crime scene examinations, so critical evidence is not mixed up or contaminated.

The bill also creates powers for regional and state databases to be set up, but does not specify whether any safeguards should apply to them.

Greater public consultation, more detailed scrutiny and concrete steps to include more safeguards are all measures that India could take to increase public trust and make more effective use of DNA.

Helen Wallace is director of GeneWatch UK and a participant in the Forensic Genetics Policy Initiative. She has provided expert evidence on DNA databases to the European Court of Human Rights and to the British Parliament.