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From DNA of Family, a Tool to Make Arrests
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"How is that not familial searching?" said Simoncelli of the ACLU. "You're still using the database to try to get to family members."
The key is intent, Callaghan said. The bureau is "not deliberately trolling the database looking for relatives," he said.
Heightening privacy concerns are the growing number of local jurisdictions that maintain DNA databases not restricted to criminals. Some include the DNA of victims, suspects or even lab workers. Such collections, which critics call "rogue databases," are barred from inclusion in state and national databases, but rules about their use by law enforcement agencies are unclear.
The Supreme Court has repeatedly held that authorities may not conduct searches for general law enforcement purposes without suspicion about individuals. Although convicted criminals have a diminished expectation of privacy, searching a database for unknown relatives might violate that principle, said Jeffrey Rosen, a George Washington University law professor.
"The idea of holding people responsible for who they are rather than what they've done could challenge deep American principles of privacy and equality," he said. "Although the legal issues aren't clear, the moral ones are vexing."
Finding BTK
BTK first struck in 1974, strangling a man, his wife and their two children, 11 and 9, in their home. He killed six more times over the next 17 years, tying up his prey with electrical tape, nylon stockings and rope.
After 14 years of silence, BTK reemerged in 2004, sending messages to authorities via the media hinting that he was about to strike again. Computer forensics revealed that a document on a CD sent to a local television station had been saved by a person named "Dennis" at a local church.
Investigators zeroed in on Dennis Rader, the congregation president, but before they moved, they wanted evidence tying him to the crimes.
They learned that Rader had a daughter who had attended Kansas State University, and they reasoned that at some point she must have used the medical clinic, said Wichita police Lt. Ken Landwehr. "It was suggested that she probably had a Pap smear," he said. Federal law requires that labs keep Pap smears for five years, principally in case of legal challenges over diagnoses.
The prosecutors obtained a subpoena and a court order for the daughter's specimen to compare with BTK's DNA. (An exemption in the Family Educational Rights and Privacy Act allows law enforcement to obtain a student's health data with a court order.)
"It was obviously good detective work," said Nola Tedesco Foulston, the prosecutor in the case.
At the same time, said George Washington University law professor Sonia Suter, "it is so troubling to think that somebody would have a sample taken for her medical welfare that is then used to implicate her father."
