Washington Law Review

Comment

The Thickness of Blood: Article I, Section 7, Law Enforcement, and Commercial DNA Databases

December 01, 2020 | 95 Wash. L. Rev. 2057

Abstract

Law enforcement agencies increasingly use online commercial and open source DNA databases to identify suspects in cases that have long since gone cold. By uploading crime scene DNA to one of these websites, investigators can find family members who have used the website and build a family tree leading back to the owner of the original DNA. This is called “familial DNA searching.” The highest profile use of this investigative method to date occurred in California, but law enforcement in Washington State has been quick to begin utilizing the method as well. However, article I, section 7 of the Washington Constitution provides an enhanced privacy right to Washington residents when compared to the United States Constitution. This privacy right, which protects citizens’ private affairs from governmental intrusion without a warrant, is likely violated by law enforcement use of these databases in this manner. Washington courts should and will probably conclude that this investigative technique seriously threatens this crucial constitutional right. However, the Washington legislature should not wait for the courts to weigh in. Instead, lawmakers should pass legislation to ensure that this violation of citizens’ privacy is prohibited.

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