Sonia M. Suter is the Kahan Family Research Professor at the George Washington University Law School. Erin E. Murphy is the Norman Dorsen professor of civil liberties at New York University School of Law. Natalie Ram is a Greenwall faculty scholar in bioethics at the University of Maryland Carey School of Law.
Technological advances are upending nearly every part of our society. The past year has hastened that upheaval, forcing us to rely on cyber, rather than physical, space. But even before the pandemic turned us all into Zoom images, technology was changing many aspects of business as usual.
That is especially true within criminal justice. In recent years, we have witnessed law enforcement’s deployment of a dizzying array of new digital tools and methods of technological surveillance. Police increasingly solve cases using facial recognition and license-plate readers, geolocation trackers, drones, artificial intelligence, forensic genetic genealogy and data mining methods that tap the vast trove of information in our cellphones and Internet browsers.
Despite the terrifyingly intrusive nature of these technologies, they are all largely unregulated by either constitutional or statutory law. The police do what they think they should do, not what a legislative or judicial body has told them they can. Concerns about the Wild West of investigative surveillance have led to sporadic interventions. The Supreme Court ruled that law enforcement must obtain search warrants for certain targeted investigations of cellphone location records or to track vehicle movements by placing GPS devices on cars. States and municipalities have shown interest in regulating or even banning especially intrusive or questionably reliable technologies, including a recent spate of laws restricting facial recognition technology. Even so, too many investigative techniques, in too many jurisdictions, remain fully unconstrained.
A recent law passed in Maryland offers a template for how legislatures across the country — including Congress — ought to respond to these threats to privacy and liberty. This law is one of only two statutes that regulate forensic genetic genealogy (FGG). This method grabbed public attention in 2018, when the FBI utilized it to identify and arrest the Golden State Killer, who recently pleaded guilty to a series of long-unsolved rapes and murders in California. Critics, concerned about genetic and nongenetic privacy, expressed alarm that law enforcement was commandeering genetic records shared for recreational purposes. According to a 2021 survey, more than 70 percent of U.S. respondents rated government use of consumer genetics platforms to generate investigative leads as “intrusive.” Similar majorities found the technique violated a reasonable expectation of privacy. Despite public concerns, law enforcement has been quick to embrace FGG, using it to identify or arrest a suspect in 70 violent crimes and generate investigative leads in nearly 200 cold cases in the United States — all without any meaningful constraints on this investigative technique.
In fact, until Maryland’s law, there had been no formal standards for or constraints on the use of FGG and virtually no transparency about when or how it was used. The closest thing to regulation is the Justice Department’s interim policy on FGG — a unilateral pronouncement of the law enforcement arm of the federal government that does not apply to most state and local investigations.
The legislative process that led to the passage of the Maryland FGG statute provides a valuable model for how best to regulate emerging technologies. Recognizing the conflicting objectives and perspectives of interested parties, state Sen. Charles E. Sydnor III (D-Baltimore County) and Del. Emily K. Shetty (D-Montgomery) convened a working group of stakeholders and experts in relevant areas, including law enforcement, genetics, forensic laboratories, law, bioethics, criminal defense and prosecution. Over several months, the group (of which the authors were a part) debated various approaches to regulating FGG. Ultimately, Sydnor and Shetty drew from those conversations a balanced approach to regulating FGG so it can be used to solve crimes, exonerate the innocent and identify human remains while minimizing the threats to privacy, inequality and civil liberties.
The result is a robust and comprehensive statute that goes well beyond the Justice Department’s threadbare and one-sided policy. It addresses not just law enforcement access to such searches but also defense and post-conviction investigations. The law aims to serve the needs of law enforcement, but also to protect innocent citizens who engage in recreational genomics and who might be inadvertently ensnared in a criminal investigation. It also imposes competency and transparency standards aimed at ensuring that the privacy and liberty sacrifices are borne fairly and equitably in society and that FGG yields the promised return in public safety.
In other words, Maryland’s process and the law that resulted from it are not only a model for regulating FGG but also a model for a legislative process that can cultivate public trust in new technologies. By involving a broad array of relevant stakeholders to develop consensus legislation, Sydnor and Shetty encouraged careful consideration of the risks and benefits of the technology. A smart and sensible middle ground was achieved, despite the different priorities and strongly held beliefs of a wide-ranging group of interested parties. The success of this approach is evident in the bill’s near-unanimous passage and strong support from law enforcement and privacy and civil liberty proponents.
It is a necessary path forward in thinking about how to manage emerging technologies so they support and uplift, rather than dehumanize and debilitate, our society.