The recently elected portuguese government has just announced plans to create a DNA database to aid in fighting crime. The idea is worth applauding, as Portugal is one of the few countries in the EU (along with Spain and Italy) that does not yet possess such a useful mechanism for crime investigation. However, the government's plan is much more ambitious: Portugal is to be the world's first country with a DNA forensic profile of all its inhabitants. Despite the threats that such a universal system poses to citizens' liberties, the country does not seem alarmed enough. So far, there has been little public debate.
The first DNA forensic database was implemented in 1995 in the UK. Ten years later, the application of genetics in the resolution of crime cases has achieved worldwide acceptance as a reliable means of identification and has had a major impact on criminal justice systems. DNA databases have been successfully used in criminal cases, in convicting criminals and exonerating innocents, in determining paternity, in tracing missing persons and identifying disaster and war dead. In 2002 an Interpol survey concluded that 41 of its 179 member countries already had implemented forensic DNA databases, and predicted that the percentage of members having DNA databases was to double in the near future.
In fact, in recent years, a large number of European countries have successfully introduced national databases holding DNA profiles from suspected and convicted criminals offenders as well as from biological stain materials from unsolved crime cases. Although such databases have proven extremely helpful in solving crime, the criteria for including a DNA profile in a database, as well as the rules that govern the access to or the removal of that data, still vary enormously from country to country.
The UK has the largest forensic DNA database in the world. In July 2004 it held over 2.5 million reference profiles and around 200,000 crime-scene profiles, and is projected to reach 5 million samples, around 10 percent of the population in the coming years. Since its creation there have been more than 550,000 matches between reference profiles and crime scenes and currently the probability of identifying a suspect when a crime-scene profile is checked against the DNA database is around 40%. The considerable size and success of the country's database is a direct result of the permissive rules for database entry: many samples are taken, with or without consent, from individuals arrested for offenses that could lead to a prison sentence, and the profiles are retained even from exonerated suspects.
Most other EU countries have set tougher legal restrictions which, albeit limiting the efficiency of the database, aim at assuring a greater protection of citizen's rights. For this reason, according to recent data, the total number of reference profiles in 7 EU countries' databases (Germany, France, Austria, Netherlands, Slovenia, Finland, Sweden) is only around 400,000.
There is a current trend for harmonization of forensic DNA databases, so that searching and sharing genetic profiles across EU countries is made easier. This drive is fueled by widespread concern with terrorism, transnational crime and the increase ease of the population mobility, both across the EU and into the more "permeable" states of the EU with the wider world. A range of organizations is thus currently involved in developing and promoting the standardization of technologies, quality requirements, proficiency tests and markers. In a wider scale, the WHO has affirmed the fundamental importance of international standards, which establish the precise conditions under which genetic databases can be introduced, kept, and made use of in an ethically acceptable way.
However, no country has yet attempted at implementing a universal DNA database for forensic purposes. In the UK, law enforcement authorities, have argued for the UK database to be extended to the entire population, but civil liberties groups strongly opposed such plan, due to the serious issues it raises in ethics and law.
What are the arguments for and against the implementation of a universal DNA profiling system for criminal investigation?
It is clear that for maximum efficiency in criminal investigation, the genetic fingerprinting of the greatest population span possible would be needed. A universal database could prove particularly useful for unsolved crimes. Furthermore, experience with the UK and US databases seems to indicate that minor criminals might also be perpetrators of more serious crimes. This fact, associated to the repetitive motif of some serious crimes helps support the use of DNA universal profiling in the prevention of crime. Such a system could also contribute to the reduction of crime, as it works as an additional deterrent to criminals.
It is frequently argued that the existing forensic databases are discriminatory, for some groups in the population tend to be over-represented among suspects. A universal DNA profiling system, managed by an independent body of experts is thus seen as the only system that can guarantee equality between citizens.
Genetic data poses significant ethical and legal issues because, more than serving as an identifier, it can also convey sensitive personal information about the individual and his or her family. A number of fundamental rights might be infringed by a universal DNA database, namely the dignity of the person, the right to privacy, to physical and moral integrity, the right not to declare, the presumption of innocence, and the right to liberty.
If most forensic databases only possess an identifying value, found in the non-codifying parts of DNA, some others also store physical samples (UK, Austria). The custody of these physical samples is a crucial issue for human rights' groups, as there are great fears that the genetic information could be used for purposes that are completely unrelated to identification. It is critical to assure that the databases will not be used by employers, insurance companies, the biomedical industry or others, without the individual's informed consent. There are also concerns about government use of the database outside of the realm of law and order. Civil liberties groups worldwide have been warning to the risk that governments in years to come might want to access the database as an instrument of social policy. The possible implications of the database being (mis)used for non-forensic purposes, conjures up images of a "genetic surveillance" worthy of an Orwellian nightmare.
Due to the informative potential which the analysis of DNA entails, the sensitivity of its information and its discriminating power, it is of vital importance that the implementation, use and maintenance of DNA databases is carefully regulated at the national level. Regulation should address specific issues such as: security of the DNA database; entities that control the access to the database; re-use of DNA samples for research, education and planning; due process in the collection of DNA evidence; length of time profiles remain in the database.
As for the economic viability of such a database, it is clear that a universal system of DNA profiling involves high costs, as its implementation would demand considerable initial investment in tests, equipment and personnel. In the UK and the US, it has been estimated that the implementation of a universal DNA database would cost approximately 40 to 80 euros per person. Based on these numbers - which come from countries that already possess large expertise, infrastructures and personnel working in DNA databases - one can conservatively estimate an average cost of 50 Euros per profile. In a country of 10 million inhabitants, the DNA database would imply an investment of at least 500 million euros.
In most EU countries, legislators, scientists and civil liberties' groups, tend to agree that the creation of a DNA database for forensic purposes comprised of the entire population is a disproportionate means to the ends pursued. The principle of proportionality, in a broad sense, obliges the legislator to attempt at reaching a just balance between the interests in conflict, that is, to determine whether it is proportional to limit fundamental rights for the greater benefit of society.
The introduction of a universal forensic DNA database involves a fundamental tension between between public safety and efficiency in combating crime and protection of human dignity and rights. Finding an adequate balance between these conflicting interests is a complicated task, particularly when the full potential of these recent scientific developments has not yet been reached.
For this reason, the WHO, the EU, scientific organizations and human rights' groups all endorse extensive public debate prior to the establishment of new genetic databases. Research in human genetics can affect the whole community, and therefore, it is legitimate that the community itself and not only politicians and scientists should debate and decide what it is prepared to accept or reject.
In Portugal, however, the public debate about the defense and safeguard of personal genetic information, is almost inexistent. It is imperative that both the opportunities and challenges in developing and using forensic genetic databases are widely discussed, with the necessary appreciation of its social, ethical, legal, economic and scientific implications.
It is evident that Portugal should be following the general trend of implementing a forensic DNA database. However, before embarking on the government's plan of a universal DNA profiling system - which involves very high costs, serious risks for citizens' liberties and undemonstrated efficiency - the portuguese people should discuss it seriously, and perhaps keep in mind the words of Benjamin Franklin: "Those who sacrifice liberty for security deserve neither liberty nor security."
Written by Maria João Boavida
