KOJO NNAMDIWelcome back. It's not just on "CSI." Law enforcement regularly uses DNA to identify suspects in criminal investigations, but as more people send their DNA to sites like 23andMe for genetic analysis, the potential database of profiles is now exponentially bigger. Police last year caught the person they suspect is the Golden State Killer through DNA a relative submitted to a genealogy site.

KOJO NNAMDIAnd Alexandria police recently used it to identify a suspect in a three-year-old sexual assault cause. So, how are police departments and investigators in our region approaching this new frontier in criminal investigation, and what privacy concerns does it raise? Joining me in-studio is Rachel Weiner. She's a local reporter for "The Washington Post," covering the courts in Alexandria, Virginia. Rachel, thank you for joining us.

RACHEL WEINERThanks for having me.

NNAMDIPolice using DNA evidence to solve cases is not new. What's different about the Golden State Killer case, and this other one in Alexandria?

WEINERWhat's different is that instead of just running DNA through their own law enforcement databases -- which only include generally people who've been at least accused and mostly convicted of a serious crime -- they're able to go to this website called GEDmatch, mostly, and they bring in an outside company that can build a profile of someone, even if, you know, some of their second cousins have used this site.

WEINERSo, that creates a family tree that brings you back to a person of interest, basically, that may have never had any contact with law enforcement, there was no reason to suspect that person, except that they were identified through this DNA.

NNAMDIJoining us now by phone is CeCe Moore, chief genetic genealogist at Parabon, which is a DNA technology company. CeCe Moore, thank you for joining us.

CECE MOOREThanks for having me.

NNAMDIWe're talking about a technique that you pioneered. Take us through the process of exactly how you work with police to use genetic genealogy in criminal investigations.

MOOREThis was a technique that I developed for people of unknown parentage, so adoptees, donor-conceived individuals, and we've been using it for that purpose for many years, very successfully. And only more recently has it been used for law enforcement. So, what we're doing is we're comparing someone's DNA, whether it be an unknown suspect or an adoptee's DNA, to about a million people at GEDmatch who've already voluntarily uploaded their raw data there.

MOORENow, in order to get your DNA in that database, you have to have tested at one of the consumer DNA testing companies. So, if you've tested at Ancestry DNA, 23andMe, et cetera, you can upload to GEDmatch, and then we would be able to compare that unknown suspect's file against your DNA and everyone else in the database. We're looking for people that have long stretches of identical DNA. If they do, that means they share a recent common ancestor.

MOOREAnd so we're building their family trees, looking for commonalities between them -- common ancestors, surnames, locations, at least -- and then trying to reverse-engineer the family tree of the unknown suspect from that data.

NNAMDIAnd we should note that your company, Parabon, worked with the Alexandria Police Department on the case that Rachel just mentioned. Does genetic genealogy essentially replace regular police work?

MOOREOh, not at all. This is really a scientific kit that we're providing. It's a -- genetic genealogy is a lead generator, and so we can provide this information, but then law enforcement has to build a traditional case, like they would in any other situation. And they also have to get DNA that they can compare to their traditional forensic genetic profile -- their CODIS profile, the one that they would have uploaded to the law enforcement databases.

MOOREAnd so arrests are not made based on genetic genealogy. That is just used as a pointer, pointing them toward the right person or family to find the unknown suspect.

NNAMDIWhat personal information can you see and not see when you upload DNA into a consumer database and look for matches?

MOOREAll we can see is what DNA is shared, meaning shared segments of DNA. So, we're not seeing medical information, and we're not seeing somebody's entirety of their genome. So, if you and I share, say, 1 percent of our DNA, I will only be able to see where that shared DNA is on the chromosome, and how much we share in total.

NNAMDISo, that would be all you'd be able to see about the people who are matches?

MOOREThat's all I would see about their DNA. But then I would also have whatever identifying information they have included when they uploaded that DNA. It could be their real name. It could be a username. It could be an alias or initials, and then an email address that is intended for people to contact that person, although we try not to do that with law enforcement.

NNAMDIThis morning, the Anne Arundel County Police in Maryland announced that they had identified a 1985 murder victim. How did genetic genealogy help them solve that cold case?

MOOREThat's actually my case, and it's exactly the same techniques that I mentioned for unknown parentage and for identifying unknown suspects. So, it can work for any type of human identification case. His DNA was analyzed in a much more advance technique than has been traditionally done. So, instead of just looking at 20 genetic markers, we're looking at hundreds of thousands of genetic markers across the genome. And then those are compared to all of the people that have uploaded to GEDmatch and their hundreds of thousands of genetic markers.

MOOREAnd so we didn't get any close relatives on that case, but we got enough that, over several months, we were finally able to reach a potential identity, and then once that was communicated to law enforcement, they were able to confirm that that was a correct identification.

NNAMDICeCe Moore is chief genetic genealogist at Parabon, a DNA technology company. Thank you so much for joining us.

MOOREOh, thanks for having me.

NNAMDIRachel Weiner, on to another local story. The Alexandria Police Department made an arrest in a three-year-old rape case on the strength of an investigation using genetic genealogy. What was that case, and why is there legal controversy over it now?

WEINERSo, this is a rape from 2016. A lifeguard at a pool was approached by a man wearing gloves. He bound her and used a gun to sexually assault her, so she could only describe him in pretty vague terms as a white man of, I think, about 6'1", in his 30s, maybe 40s, and there was really no leads until this genealogy DNA investigative technique became available. And they had the rape kit, and they used Parabon to upload the rapist's DNA to GEDmatch and were able to identify, I believe, two of his cousins, and based on location and age and appearance, narrow that down to one person, Jessie Bjerke, who the police then followed.

WEINERThey took some of his trash. They took a couple straws that he used at a restaurant, and that way, they were able to match his DNA to the rape kit. And on the strength of that evidence, they got a warrant to swab his cheek and find that it was -- there's, I think, a 1 in 7.2 billion chance that it's not his DNA from the crime scene.

WEINERSo, what his lawyers are saying is that, to do all of that, they should have had a search warrant, which they did not until they swabbed his cheek. When they were following him around, when they got his DNA, it was just based on the tip from Parabon, as Ms. Moore called it. They didn't have a warrant, and law enforcement -- generally, the law has been that to pick up abandoned property, you don't need warrant. You know, someone discarded it. They didn't -- they have no claim over it.

WEINERThe argument here is that DNA is so personal and so impossible not to abandon, that that's not really voluntary. You're not choosing to leave your DNA on a straw. You can't help it. And so you do have a privacy interest in your DNA, especially with what we can do with DNA these days. And it's akin to a cell phone, is the argument, that police need a warrant to search your cell phone, even if it's abandoned, because it's not just a piece of property. It's really a portal of information, and that DNA operates the same way.

NNAMDIQuestion -- if police did not need a warrant to get his DNA from the straw or some stuff he left in his trash, why did they then get a warrant to swab his cheek?

WEINERWell, because to build the criminal case, then they are identifying him as a suspect, and they want to use that information in court, versus all they need to get the warrant is probable cause, which they got through the cheek match. Now, part of this argument is also that if they had gotten a warrant for the straw, the Parabon report would not be probable cause for that, because it's based on outside investigators who haven’t been certified in particular ways. It just wouldn’t meet the legal standards for that. So, that's sort of a separate argument about whether, based on a Parabon report, police could get a warrant to, say, swab somebody's cheek.

NNAMDIGot to take a short break. When we come back, we will continue this conversation. You can join us by calling 800-433-8850. Would you opt-in to allowing law enforcement to use your DNA information in a criminal investigation? Have you sent your DNA in to trace your family genealogy through one of the companies that can do a profile? 800-433-8850, I'm Kojo Nnamdi.

NNAMDITalking about local law enforcement using DNA in investigations. Talking with Rachel Weiner. She's a local reporter for "The Washington Post," covering the courts in Alexandria, Virginia. Joining us now by phone is Nila Bala, associate director of criminal justice and civil liberties at R Street, a think tank. Nila Bala, thank you for joining us.

NNAMDITalking about local law enforcement using DNA in investigations. Talking with Rachel Weiner. She's a local reporter for "The Washington Post," covering the courts in Alexandria, Virginia. Joining us now by phone is Nila Bala, associate director of criminal justice and civil liberties at R Street, a think tank. Nila Bala, thank you for joining us.

NILA BALAThank you so much for having me.

NNAMDIThis is something of a new frontier. What does the law say or not say about collecting and analyzing DNA left in public like the Alexandria police did?

BALAYou're right. It really is the wild, wild West in the law right now. The law, it doesn't say that police can't do the things that they did in the Alexandria case. It's the totality of all of those steps that I think raised the privacy concerns. But right now, the law's pretty clear that if you have discarded material or you've put your trash out on your curb, police can search through that and collect evidence without a warrant.

BALABut like was mentioned earlier in this conversation, DNA is different because of the personal valance that DNA has. And there's a couple of other pieces that make the use of these open-source databases like GEDmatch different, as well. So, there is a reason to be concerned, and unfortunately, the law just hasn't caught up with the reality of the technological situation we're currently in.

NNAMDIWhy is what the Alexandria police did -- testing a straw used by the alleged rapist -- any different from collecting hair or fiber samples at a crime scene?

BALAIt's not different on its face, except for the amount of information that DNA can tell you about somebody, and also the fact that they're taking this DNA and then uploading it into a database, right? So, these open-source databases can keep this DNA in there for perpetuity. And so when officers make mistakes -- which can happen in DNA collection -- you could even have an innocent person's DNA then being exposed on these open-source databases, when they haven't necessarily consented to it.

BALAThe other thing that's really important to note about DNA is you're not just exposing that one person's information, but you're actually essentially consenting and exposing all their relatives' information, as well. And so while we might be okay with the privacy violation for the most serious or violent crimes, the percentage of people that think that these types of practices are okay for nonviolent offenses certainly drops. And the problem right now is that we don't really have a process in place, like we do for warrants, typically.

NNAMDIIndeed. Reason, who decides --

BALAYeah.

NNAMDI-- whether or not law enforcement can begin the process of using genetic genealogy to investigate a crime?

BALAWell, it's kind of the law enforcement themselves, to some extent, and then what's kind of scary is that private entities are also making these decisions. So, GEDmatch had a policy for a while that only murders and serious sexual assaults would be crimes that they would allow their services to be used for. But Curtis Rogers, one of the owners of GEDmatch, was approached in an assault case originating out of Centerville, Utah. Law enforcement wanted permission to use it in that assault case, even though assault was not something typically that they had accepted the use for before. And now that's included, as well. So, it's very interesting that private entities are now being able to determine the limits on Americans' genetic privacy.

NNAMDIOn now to Andrew in Marshall, Virginia. Andrew, you're on the air. Go ahead, please.

ANDREWThanks for taking my call. I think if you -- I've submitted my DNA to learn more about my ancestry, and I knew when I did that that there's a risk that somebody, for good or for ill, would be able to access it. I don't see any problem with choosing to allow law enforcement to use my material to catch bad guys.

NNAMDICare to comment on that, Nila?

BALASure. Well, I'm really glad that Andrew felt like he had informed consent and he knew that this could happen, that law enforcement could use his information. I guess I'll say two things. One is that I don't think that the typical consumer is necessarily like Andrew who just called in. A lot of folks may not know that this is information that can be used by law enforcement. I should note that very recently, GEDmatch changed their policy to an opt-in policy, but for a long time, they didn't necessarily have a disclaimer, or they had made it an opt-out policy.

BALAAnd perhaps because of a lack of knowledge or inertia, people may not know that their information was being used in this way. The second thing I'll quickly say is that while Andrew's comfortable with his DNA being used by law enforcement, he necessarily can't consent to his relatives or his family members, who are also being exposed, just because of the way DNA works, that when you expose your own DNA, you're not just exposing yourself, you're exposing your family that shares genetic material with you. You're essentially, in some ways, becoming a genetic informant against your family.

NNAMDIAndrew, what do you think about that?

ANDREWIt that, again, it kind of falls, the responsibility, on the person who's submitting their DNA. If my DNA is used to catch somebody who committed one of these serious crimes, I think that again, that kind of -- that's unnecessarily taking responsibility away from the participants in these different programs. I'm choosing to send --

NNAMDIOkay.

ANDREW-- my DNA out there. It should be used for good things.

NNAMDIOkay. Even if the person involved happens to be a relative of yours that you had no idea, and certainly had an opinion that this person is not a criminal?

ANDREWI think that, you know, you've got to catch the people that are doing things that are wrong, whether or not they're your family members. That doesn't change the legality of a crime they commit. So, I -- like I said --

NNAMDIOkay.

ANDREW-- I think it comes down to your own -- this is a way that you can help law enforcement put away criminals.

NNAMDIOkay. Thank you very much for your call. Caroline emails: a bit different from criminal prosecution, but a couple of men have said to me that they don't want to do a genealogy DNA test for fear that they could possibly have unidentified minor children out there, so to speak. Most of the services don't test minors, so I don't know if that information is subject to disclosure for purposes such as child support. Joining us now by phone is Jenifer Smith, director of the D.C. Department of Forensic Sciences. Jenifer Smith, thank you for joining us.

JENIFER SMITHThank you for having me.

NNAMDIWhat about these privacy concerns? Should the government have access to DNA that you or I send to a genealogy site?

SMITHWell, one thing I want to talk about is that at the Department of Forensic Sciences, we are an independent agency, and we make sure to follow the rules, both the science rules and also involved in protection of that data. So, we actually do participate in what's called the CODIS system, which is the national DNA index system that allows us to compare crime scene profiles to those of convicted offenders or individuals arrested for certain crimes. So, we are always following those scientific rules. We have good-quality science.

SMITHAnd so often these discussions have been held, over the last -- since the early '90s, when we started this database. So, privacy concerns are really kind of leading some of the decisions as states and the federal government has put this into practice.

NNAMDIRachel, after the Golden State Killer case, news broke that GEDmatch, the DNA database used in the case, changed one of its user policies, as was mentioned earlier. People now have to opt in to share their information with law enforcement. If someone agrees to those terms, what's the issue?

WEINERI think the issue is -- as was mentioned earlier -- also, that while they opt in, their relatives haven't, and it's an interesting question, legally. I think most experts would say that yes, they opted in, so there's at least legally no privacy implication. I talked to one law professor who said she believes that you do have a privacy interest in your relatives' DNA, if that can be used to identify you.

WEINERIn a sense, your identity is encoded in their DNA. And so that's an argument you can make, that you have standing to object to this. But it's tenuous, because they agreed, especially now, explicitly, although, as you pointed out, the terms of service for these websites can change. Right now, they say they're using it for these crimes, but they could choose to use it for other crimes. And it is really up to them.

WEINERIn Virginia, it's a crime to share information from CODIS, from the law enforcement database, but there's no similar legal barriers around sharing DNA that hasn't been uploaded into CODIS. So, at the point where they took Jesse Bjerke's DNA from the straw, there was no legal limits on what the police could do with that, because we really are in new territory.

NNAMDINila, what are the rules about searching for family members in law enforcement databases in Virginia and Maryland?

BALASo, in Maryland and D.C. -- and I should say Maryland and D.C. are the only two places in the country that actually ban and forbid law enforcement from doing familial matching in the CODIS database. Virginia, like the other states, I don't think has an explicit law either permitting or forbidding the practice. So, yeah, it's really interesting new territory, like Rachel was saying. I'll also mention that Maryland actually had a proposed bill in the last session, House Bill 30, that would have banned any familial searching, even using these open-source databases like GEDmatch and FamilyTreeDNA.

NNAMDIJenifer, you've been in forensics and law enforcement for decades. Just how revolutionary is genetic genealogy to the overall process of investigating crime?

SMITHWell, I think it that next step going forward. It's choosing many new processes that allows us to look at many more regions of DNA than we've been able to do before. And these are all kind of taking advantage of that technology that, now, as I said, with very small amounts of DNA that is available on forensic samples, we can now look at these additional regions. And so it is an important step forward. But all of this is based, as you said, on decades of prior work, to include discussions about privacy and what the government will be able to do with these samples.

NNAMDIThe rules and restrictions around when you can upload someone's DNA to a law enforcement database and run a search, they vary by jurisdictions. What are the regulations that govern your work here in D.C.?

SMITHSo, as your previous spokesperson talked about, D.C. is not allowed to do familial searching. We are designated, we have certain violations that if you're convicted of those we can upload your profile. When it comes to the evidentiary profile, we also want to make sure that that profile -- for example, in a sexual assault case -- is not from a consensual partner. That it is, in fact, from the individual believed to have committed the crime. So, we do have a lot of rules. We follow those, and people check up on us to make sure we are following those rules.

NNAMDIDo you think those rules strike an appropriate balance between personal privacy and public safety?

SMITHI actually do, as I said. As the technology has gotten better and we're allowed to get additional information and use this information, it's always based on the science. And I think that's what we have always wanted in the forensic science world -- we want to be able to apply the best science, whether it's in DNA or fingerprint technology, and bring that evidence into the courtroom, so individuals who have to make those decisions will make those decisions based on the science.

NNAMDIWe got an email from Will, who writes, "While finding the actual perpetrators of a crime is of course an admirable goal, it's disturbing to think that an investigation of a crime would target a group based on lineage rather than other facts that are not related to genetic collection. In this case, being genetically connected via lineage to crime can be the sole justification for investigating an entire family." Is that a concern of yours, Nila Bala?

BALAIt definitely is, and I really admire that Dr. Smith is following the protocols and making sure that when they do the testing, it's done properly. Unfortunately, there's always human error involved. I think when people think of DNA, they think it's foolproof, but in terms of collecting and processing DNA, there can be mistakes made. We actually -- a co-author and I actually wrote for the Brookings Institute about a case where the wrong person had been identified.

BALAIt was actually in the Golden State Killer case, which is probably one of the most famous genetic genealogy cases. At first, they got the wrong person, and that can happen. And then in another case where they misidentified the person, they actually had a warrant out for his arrest, and for 45 days or so, he was under suspicion of a crime that he didn't commit. So, there can be mistakes made. And so that's why I'm not against cold cases being solved using this technology, I just think we should have a third-party review in place. So, just like we get a warrant for searching a house, maybe there should be a warrant for searching open-source databases for DNA matches.

NNAMDISorry to interrupt, but we are almost out of time. Rachel Weiner, in about the 40 seconds we have left, what do you expect to see next in the Alexandria case?

WEINERWell, the government hasn't responded yet. They have to by July 3rd. I imagine they will say what experts who support the use of this technology say, which is that DNA is more like a fingerprint than a cell phone. It's just used for identification. It's not a privacy violation. And therefore, there's no reason that they cannot use the evidence that they used.

NNAMDIRachel Weiner, Nila Bala, Jenifer Smith, thank you all for joining us. That's it for today's show. This conversation on law enforcement's use of DNA technology was produced by Margaret Barthel. And our look at vaccination rates was produced by Maura Currie. Coming up tomorrow on World Refugee Day, we'll hear about arts and sports programs geared towards young refugees, and find out what these organizations are doing to help youth refugees cope with the challenges of adjusting to a new life in this region.

NNAMDIAnd we'll meet Dom Flemons, a musician and historian dedicated to keeping the musical legacy of black cowboys alive. That all starts tomorrow, at noon. Until then, thank you for listening. I'm Kojo Nnamdi.