Letter to the Editor—Context-specific considerations for development of guidelines for the implementation of rapid DNA

Editor,

Over a decade since rapid DNA technologies were conceived, we see its potential utility in non-governmental, governmental, and law enforcement contexts, as well as the potential risks. Rapid DNA instruments were initially developed through U.S. governmental contracts to streamline the processes of creating individual DNA data and of verifying relationships claims [1]. The U.S. Rapid DNA Act of 2017 [2] expanded the field of implementation of rapid DNA technologies by relaxing the requirement that DNA data for CODIS be produced in a qualified laboratory [3]. Since then, rapid DNA technologies have been piloted or used in the contexts of evidence processing [4], booking or detention stations [5], disaster victim investigations [6], human trafficking [7], and immigration fraud detection [8,9]. The technology also could be applicable for detecting repeat border crossers, processing unidentified human remains and/or family reference samples in missing persons investigations, and reunifying separated migrant families. These emerging use contexts beyond law enforcement highlight the importance of developing guidelines informed by a wide range of stakeholders that incorporate ethical and social implications, particularly in light of policy changes in immigration to expand rapid DNA testing [8]. Some groups have critiqued [10–12] or considered measures [1,9,13] for the technology’s use in law enforcement and national security contexts. Forensic DNA oversight groups within and outside of the United States are developing policies and guidelines for rapid DNA (e.g., Scientific Working Group for DNA Analysis Methods [14], American Society of Crime Laboratory Directors [15], National District Attorneys Association [16], European Network of Forensic Science Institutes, and others [17,18]). Forensic professionals are obligated to hold to a professional and ethical standard for any scientific applications [19]. Too often, we see technology guidelines intended to prevent individual harm constructed in a way that restricts use for humanitarian and/or human rights contexts. We as bioethicists and policy scholars cannot alone suggest or devise such guidelines; new policies are best informed by input from a variety of stakeholders. To our knowledge, a diverse group has yet to convene to discuss or conduct formal research to define best practices for the implementation of rapid DNA that take into consideration the various use contexts. We can contribute, however, by suggesting a scaffold for framing rapid DNA guidelines in such a way as to maximize usefulness of the approach while minimizing personal harm.

We developed a set of ethical considerations through consultation with four key informants (two humanitarian and civil liberties advocates, one law enforcement professional associated with an oversight organization, and one rapid DNA use expert). Our discussions with the informants explored broad ethical or social concerns for the use of rapid DNA in the various contexts, the ability of rapid DNA to address privacy concerns associated with traditional DNA analysis, and potential protections to enable rapid DNA to have the maximum benefit to society while limiting concerns. The framework we present here was not a generalizable research study, but rather intended to develop a list of topics that we could collate outside of our study team; the informants served to ensure that we were considering as many topics as possible, absent a formal research strategy. Notes from each conversation were reviewed to capture salient issues and compared to identify points of agreement. Issues were categorized into one of five topics: advantages, data collection issues, data access and storage issues, oversight and data protection, and general forensic DNA issues. General forensic DNA issues were not included in the development of the rapid DNA considerations, but compiled separately as they also are important for development of forensic DNA guidelines. Advantages were aggregated and described separately, as well. Each issue identified within the categories of data collection, data access and storage, and oversight and data protection was framed as an unbiased, actionable consideration supported by a description of its significance.

2 |. USE CONTEXTS

Use contexts for new technologies must be considered when balancing the risks and benefits of implementation. Some use contexts share social or ethical considerations, whereas some contexts present distinct challenges. In order to apply principles uniformly, we defined seven distinct use contexts:

• Evidence processing—Allows forensic analysis by non-DNA experts at or near crime scenes to be processed efficiently for cases with adequate evidence quantities. This approach can generate leads for confirmation by a forensic laboratory (e.g., rapid DNA instruments have been used to analyze crime scene samples [20–22] and to analyze sexual assault kit samples [23]).

• Booking or detention stations—Allows law enforcement to develop DNA data from arrestees or detainees to be compared against a forensic index while a person is still in custody. For CODIS, a second specimen is sent to a CODIS laboratory for upload according to LDIS/SDIS/NDIS legal provisions (e.g., an early example of a police booking station to have a rapid DNA instrument was in Bensalem, Bucks County, Pennsylvania [24]; use of rapid DNA instruments in booking stations has continued to expand into other states [25]).

• Disaster victim identification—Allows disaster relief officials to rapidly process DNA of family members of victims during their visit to family assistance centers to file missing persons reports (e.g., rapid DNA instruments were used to identify victims of the 2018 California wildfires [6]).

• Missing persons investigations—Allows law enforcement, medico-legal officials, and forensic anthropologists to rapidly process unidentified human remains and/or family reference samples. This approach can generate leads for confirmation by a forensic laboratory (e.g., rapid DNA was used in 2019 to compare family members of a missing woman in Orange County, Florida to a Jane Doe [26]).

• Border security—Allows law enforcement and/or immigration officials to develop DNA data from detainees to be compared against an index of prior border crossers while a person is still in custody (this approach has not been used to the authors’ knowledge).

• Human trafficking and immigration fraud detection—Allows immigration officials to verify family relationship claims in order to reduce fraud and detect human trafficking (e.g., in 2019, U.S. Immigration and Customs Enforcement piloted rapid DNA instruments at border checkpoints to investigate suspicions of fraudulent family claims [9,27] and U.S. Citizenship and Immigration Service has proposed expanding DNA testing for fraudulent families [8]; also, a study in 2014 explored the utility of rapid DNA for investigating sex crimes and identifying trafficking victims [7]).

• Migrant family reunification—Allows advocates and immigration officials to verify parentage claims in order to reunify families separated at the border (this approach has not been used to the authors’ knowledge).

While these context categories overlap to some degree, the distinctions help to define the principles that are applicable in one context and not another.

3 |. GENERAL FORENSIC DNA ISSUES

Many of the concerns raised in our analysis are social, ethical, and legal challenges associated with forensic DNA analysis generally, including the following:

• sample collection challenges

• sample and data retention policies

• unregulated databases

• subpopulation bias in DNA databases

• inconsistent validations

• inconsistent oversight

• lack of public engagement

• privacy protections

• consent for voluntary samples

• handling of incidental findings

• geneticization of the concept of family

Rapid DNA has the potential to ameliorate or exacerbate some of the longstanding challenges facing DNA forensics. Any discussion or research among stakeholders of how best to guide the use of rapid DNA should take these general issues into account along with rapid DNA-specific challenges. In particular, privacy rights of citizens and non-citizens are affected by increased collection of biometric data and DNA database development. Privacy protections for DNA data are especially lacking in unregulated DNA databases.

The portability of rapid DNA and its utility for non-expert users could lead to the expansion and acceleration of DNA collection, processing, and data storage. Unfettered expansion of DNA collection raises questions on how best to balance Fourth Amendment rights and privacy [10] with public safety and national security. Rapid DNA introduces a greater risk of coercion for sample provision when DNA testing is carried out at the time of detention or arrest. What constitutes “voluntary” provision of DNA samples has not been defined in most DNA collection scenarios [28]. Furthermore, DNA is collected from arrestees and detainees within the context of a biased criminal justice system, which exacerbates the existing biases (including racial bias) in DNA offender databases [3].

DNA technologies and databases are inconsistently overseen; the mechanism for and stringency of oversight depends on the context of use rather than the scope or capabilities of the science. Where samples and data are collected, clearly defined uses, restrictions on uses, and plans for sample retention and data expungement are necessary. This includes regulation of government-accessible databases containing genetic information.

Additionally, the challenges of communicating unexpected findings to families and the repercussions of the geneticization of the concepts of family and identity must be considered. Public engagement and consumer-accessible information on forensic DNA applications are needed, including transparency and clear communication to the public of the purpose of collection and storage.

4 |. POTENTIAL ADVANTAGES

The speed of rapid DNA technologies has potential advantages across use contexts that should not be disregarded in the formulation of best practices. Quicker sample processing could shorten the time that arrestees are held in custody before being excluded as a suspect. It can also speed the verification process for family units migrating as one aspect of screening for human trafficking. Following a disaster or for missing persons, rapid DNA could allow family reference sample (FRS) collection and database searching while families are present at family assistance facilities. This could bring greater transparency and streamline communication of results, including misattributed relationships. The hands-free methodology limits access to the physical sample, lowering the risk of contamination or inadvertent swapping, provided operators receive adequate training. Many rapid DNA instruments include built-in security features such as encryption systems, audit tracking, passwords, facial recognition, and keycards, all of which could improve confidentiality and data security. The rapidity of testing provides end-users with the ability to view and expunge DNA data using the instrument’s internal database. At this time, rapid DNA instruments are developed for short tandem repeats, which are useful for close kinship verification and identification of individuals but do not reveal sensitive traits discoverable with other types of DNA data.

Most instruments exhaust the provided DNA specimen, rendering it untestable for secondary uses and thereby eliminating concerns about indefinite storage and retesting of known samples. The potential for rapid DNA technologies to be used by non-expert users outside of law enforcement and government authorities also creates flexibility for non-governmental groups (e.g., human rights or humanitarian organizations) to administer their own DNA testing in sensitive contexts.

5 |. SOCIAL AND ETHICAL CONSIDERATIONS

The potential impact of rapid DNA technologies should be considered in light of the purpose of testing (e.g., kinship verification, known person genotyping, evidence genotyping) and the use context (outlined above). Ethical considerations outlined in Table S1 address ethical, legal, and social concerns for (a) data collection; (b) data access and storage; and (c) oversight and data protection. We highlight in particular the security issues that accompany the use of DNA technologies by non-experts, confidentiality and privacy issues with DNA-based information about biological relationships (e.g., communication of unexpected results), and challenges with consenting for voluntary samples.

The science and technology of rapid DNA instruments and consumables continue to evolve, meaning that the status of validations for various sample types and equipment is precipitously changing. As a result, consensus on what sample types are appropriate for rapid DNA is lacking, particularly in terms of DNA sources with mixtures, and/or low amounts of DNA, despite some evidence of the utility of rapid DNA in challenged specimens [4]. At this stage, it is important to note that validation of equipment, consumables, and sample sources is important for each context of use, including the suitability of the technology given the specimen type, and in the hands of non-experts.

6 |. CONCLUSIONS

The ethical considerations derived from our analysis address rapid DNA’s role in the challenges facing forensic DNA analysis generally, the advantages of rapid DNA over traditional DNA analysis, and issues unique to rapid DNA technologies. Guidelines are needed to ensure that rapid DNA implementation takes ethical, legal, and social issues into account for each context of use. Our analysis is intended to aid in the structuring of formal research to inform guideline development. Indeed, an important insight from our discussions with informants was that they did not agree on all points, supporting the urgent need for discussions to encompass all stakeholders. Further research should draw on the perspectives of stakeholder groups, including law enforcement, federal authorities, non-governmental organizations, humanitarian and civil liberties advocates, oversight organizations, policymakers, the general public/community, technology vendors, and other users. As the technology continues to develop and policy landscapes of the use contexts for rapid DNA shift, best practices must keep pace.