Genetic tests have become increasingly popular in recent years, and a Utah bill would expand the use of DNA testing for investigations of violent crimes.
SB156, better known as the "Sherry Black bill," would create requirements for law enforcement for searching DNA testing databases based on voluntary genetic testing. The bill is colloquially named after Sherry Black, a bookstore owner who was murdered in South Salt Lake in 2010.
Heidi Miller, Black's daughter, spoke to a Senate committee on Thursday, telling lawmakers it's thanks to genealogy testing that her mother’s case was solved 10 years after her murder.
"You never get your loved one back, but there's a peace that comes with a case being solved that makes it easier to go on," Miller said.
Sen. Todd Weiler, R-Woods Cross, who is sponsoring the bill, on Monday likened it to implicating suspects using fingerprint matching — although DNA samples are less individualized and could match with up to two or three generations of family members closely related to the suspect.
"There is, I think, a legitimate privacy interest because if any one of us ... on this committee were to commit a crime, we would leave maybe fingerprints behind potentially, and that fingerprint would implicate us as a potential suspect or whatnot," Weiler said. "But the DNA fingerprint is different because it implicates not just the person whose DNA sample it is, it implicates their relatives, usually ... at least two or three generations."
Under current law, violent offenders are required to submit their DNA into a searchable, statewide database. Some genetic testing customers can optionally select to include their DNA in a separate database, that allows law enforcement to identify them or a close family member whose DNA was found at a crime scene.
Companies like GEDMatch — which helped identify the so-called Golden State Killer in 2018 — allow users to make their DNA samples searchable, while others, such as Ancestry and 23andMe do not, according to Unified police detective Ben Pender, who helped solve Black's murder.
"It specifically said if I check this box or mark that in that box ... I'm allowing them to utilize my stuff," Pender told the committee. "It explicitly says that information, that law enforcement is going to use your information. At any time, I can take that back out if I choose to."
Still, some members of the committee and the general public expressed concern about law enforcement agencies having access to genetic test results.
Connor Boyack, of the Libertas Institute, said he's concerned that the bill allows law enforcement to search public databases without a warrant. He also argued that several of the public databases include opting in for law enforcement search when users opt to have their DNA available to find close relatives who also upload DNA.
"They're saying, 'Well, if you want to find relatives and be open to third cousins finding you, you have to also consent to law enforcement,'" Boyack said. "There is no oversight of this process. There is no warrant."
He disagreed with Miller and said that having this in law wouldn't have solved Black's murder earlier because there's no case or state law prohibiting police from searching these databases.
"They have been using this as you just heard testimony from (Pender)," Boyack said. "What this bill would do, in our perspective, is to codify broad surveillance searches of people's genetic information."
Because DNA evidence can identify close relatives who choose not to upload their samples, Boyack said nearly all Utahns may be prone to showing up in law enforcement searches.
"It's not just about who gave consent," he continued. "You may be very privacy-conscious and say, 'I am not uploading my genetic information to this database.' It doesn't matter. GEDMatch now has the ability to track over 90% of Caucasian Americans simply because of all your cousins who do consent."
Pender said the Utah Attorney General's Office was involved in crafting the legislation and was confident it doesn't violate the Fourth Amendment's prohibition on unreasonable searches and seizures.
"When you talk about the privacy, just keep in mind the current law is if you go outside and spit a piece of gum out on the roadway, there's no law that prohibits me from picking that piece of gum up and getting that DNA tested if I choose to," Pender said. "That is the law."
Weiler compared searching public DNA databases to laws allowing detectives or private investigators to sift through trash or other refuse discarded by individuals.
"As far as, like, picking up the gum on the side of the road, that's less problematic for me than using that to run against a third-party database without a warrant or anything," said Senate Majority Assistant Whip Kirk Cullimore, R-Sandy.
Cullimore was the sole "nay" vote on the bill, which the Senate Judiciary, Law Enforcement and Criminal Justice Committee recommended favorably. SB156 will now head to the Senate floor.
"I'm not going to pretend like this is a perfect piece of legislation," Weiler said. "But I think it's a really good start, and it will enable law enforcement to quickly exclude entire lists of people based on what is known about a family tree or ancestral origins of the DNA contributor, reducing the likelihood of a wrongful conviction."