Forensic DNA phenotyping: Privacy breach, bias reification and the pitfalls of abstract assessments of rights
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/14613557231184707 |
| Author | Margaux Coquet,Nuria Terrado-Ortuño |
| Date | 01 September 2023 |
| Subject Matter | Special Issue: Technology in Policing |
Forensic DNA phenotyping: Privacy breach,
bias reification and the pitfalls of abstract
assessments of rights
Margaux Coquet
University of Luxembourg, Luxembourg
Nuria Terrado-Ortuño
Luxembourg Centre for Systems Biomedicine, Luxembourg
Abstract
Although the practical benefits of forensic DNA phenotyping (FDP) in criminal investigations remain unclear, this emer-
ging forensic technology is the subject of increasing interest from various European stakeholders. However, the risks that
the technology poses to data privacy, as well as its negative impact on racialized sub-populations are well documented.
Yet, we argue that the abstract nature of the current legal framework and judicial review allows predictive technologies
with uncertain outcomes, such as FDP, to still be considered socially desirable while normalizing their adverse conse-
quences on human rights and social equity. We also argue that criminal law and criminal sciences are in a synergistic rela-
tionship in which the reification of socially constructed categories of deviancy by forensic technologies contributes to the
legitimization of the repressive apparatus, which in turn calls for the use of more investigative tools despite their inherent
pitfalls or limits. We conclude with the need to be mindful of this phenomenon when analysing the social costs attached to
emerging forensic technologies, as well as to request disclosure from public authorities of comprehensive data regarding
its concrete benefits.
Keywords
Forensic DNA phenotyping, predictive policing, racial biases, data protection, proportionality doctrine, necessity test,
critical penal studies
Submitted 31 Jan 2023, Revise received 05 Jun 2023, accepted 09 Jun 2023
Introduction
Since the earliest 2000s, a new technology has made its way
into the field of forensic genetic analysis. This is currently
known as forensic DNA phenotyping (FDP), an intelli-
gence tool with the final aim of predicting the appearance
of a person of interest using DNA (deoxyribonucleic
acid) and its association with an individual’s externally
visible characteristics (EVC) such as eye, skin and hair
colour, age and biogeographical ancestry (BGA)
(Frudakis, 2008; Schneider et al., 2019). The scientific
development of FDP has not gone unnoticed, as it was
quickly perceived as a tool to assist police forces and
increase public security. Indeed, when a biological sample
is found at a crime scene, and in the absence of a DNA
match allowing individual identification of the potential
owner of the genetic material, the use of FDP is regarded
as a means to narrow down the investigation to a ‘suspect
population’, i.e. a ‘group of people genetically sharing
Corresponding authors:
Margaux Coquet, Faculty of Law, Economics, and Finance, University of
Luxembourg, 4 Rue Alphonse Weicker, L-2721 Luxemburg, Luxembourg.
Email: margaux.coquet@uni.lu
Special Issue: Technology in Policing
International Journal of
Police Science & Management
2023, Vol. 25(3) 262–279
© The Author(s) 2023
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DOI: 10.1177/14613557231184707
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particular visible traits, or a range of commonly (read: cul-
turally) associated visible traits’(Toom et al., 2016: 2).
FDP is attracting increasing interest from a range of sta-
keholders including geneticists who see it as an opportunity
to develop fundamental knowledge about the genome,
forensic geneticists who seek the advancement of forensic
DNA methods, and the police and public authorities who
see FDP as a way of solving criminal cases in the
absence of direct witnesses and arresting potentially dan-
gerous suspects. But this new technique for analysing
DNA is also the subject of debate among academics from
various disciplines such as sociology, anthropology and
law, who point to the risks to the rights to privacy, data
control and bodily autonomy associated with the use of
FDP in criminal investigations. Furthermore, even if some
European Union (EU) Member States have adopted specific
legislation to regulate FDP and how it can be used by the
police, these are not harmonized and show, in counterpoint,
the legislative shortcomings of most countries in this area
(Samuel and Prainsack, 2018). Indeed, most domestic crim-
inal laws do not provide for a clear framework of applica-
tion for FDP, thus raising doubts and concerns about the
possibility for actors to develop and use it, and if so, accord-
ing to which limitations. The search for guiding principles
or case law that could apply by analogy to FDP has thus
already begun, both to facilitate the decision-making
process and to ensure harmonization of the regulation
between EU Member States in a context of mutual influ-
ences in terms of legislation and cross-border cooperation.
However, actors wishing to develop effective and
balanced regulation must be aware of the pitfalls stemming
from the abstract nature of both the legal criteria and judi-
cial review that currently serve as safeguards when asses-
sing the lawfulness of a new investigative tool. Indeed,
FDP raises many issues concerning the right to data
privacy, which requires an assessment of its compatibility
with the legal instruments governing its protection, such
as the General Data Protection Regulation and the
European Convention of Human Rights (Zieger, 2022)
Yet the regulatory frameworks implemented by these
instruments rely on abstract concepts and a subjective bal-
ancing of costs and benefits, which leaves much room for
interpretation. These pitfalls are particularly problematic
in the instance of emergent forensic technologies such as
FDP, considering that the difficulty in obtaining consistent
information regarding the reliability of the data they
produce, as well as the complexity of the scientific knowl-
edge in which they are rooted, already raise concerns in
respect of their use by police forces (Wienroth et al.,
2022). Moreover, the interlacing of genetics and ethnicity
that FDP entails, taken in the context of the criminal
justice system the outcome of which partly consists in label-
ling individuals or a group of individuals as deviant, implies
that special attention should be paid to the way in which
racial biases are being legitimized by scientific technology
and carried over by the law (M’charek and Wade, 2020).
This article thus aims at discussing whether the current
legal framework can provide for an adequate regulation of
FDP, particularly regarding the risks that the technology
raises in terms of a breach of privacy and its effect on the
perpetuation of racial bias and discrimination.
In this respect, we first detail the shift from DNA match-
ing to FDP, then discuss the elusive nature of FDP’s social
contribution, before addressing the substantial effect
of FDP on bias reification and the stigmatization of
sub-populations.
The shift from DNA matching to FDP
Current use of genetic analysis in the forensic context is
based on so-called DNA profiling (Marano and Fridman,
2019). In this process, a genetic profile is generated from
extracted biological evidence (DNA samples from body
fluids) found in a crime scene or on human remains. The
profiling consists of analysing the uniqueness of the DNA
sequence and linking it to the potential donor of that
DNA sample (suspect, victim, etc.). It is applied to solve
cases and to identify victims of natural disasters
(Montelius and Lindblom, 2012), mass crimes (Phillips
et al., 2009; Vanderpuye and Mitchell, 2020) or human
remains (e.g. historical figures, missing persons) (Gomes
et al., 2017; Kurosaki et al., 1993). Two entirely different
types of profiling methods coexist: identification (or match-
ing) and phenotyping (FDP or molecular photofitting in the
USA). The latter is the object of this study.
Our DNA can be divided into different segments called
genes, which contain the information to determine our
appearance and biological characteristics. Traditionally,
genes can be classified into two groups: coding, if they
will be translated into proteins that have a defined function
in the body; and non-coding, if they do not form proteins
per se but serve to regulate gene expression. Coding
genes represent roughly 10% of the total human DNA,
with the rest composed of non-coding genes and other non-
coding segments such as intronic regions, promoters and
regulatory elements. Moreover, because the functions of
many non-coding parts are still unknown, they are contro-
versially called ‘junk DNA’(Moran, 2023). Some pair of
genes can have different alleles, i.e. genetic changes that
appear due to so-called variants or mutations that originate
by sudden or de novo ultra-rare DNA alterations. They
occur by chance during cell division or because of external
factors, such as chemicals (mutagens) or radiation, and are
further inherited over generations depending on their evolu-
tionary success (Ewens, 2001). Many types of allelic varia-
tions exist, but current forensic interest falls mainly onto
Coquet and Terrado-Ortuño 263
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