A threat to privacy

By GovernanceToday
In Issue 12
September 14, 2015
0 Comments
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Provisions are too intrusive, usage too vague and possibility of abuse too high to have any positive impact

YES, OUR country is going hi-tech but there is a word called customized imbibing of something new as per the health of the recipient and here India is the recipient. Good news that we are taking up new ways to check crime but bad news is that feasibility with regard to the Indian scenario does not seems to have been taken into account as far as the Human DNA Profiling Bill is concerned.

A study by the Council for Responsible Genetics — Overview and Concerns Regarding the Indian Draft DNA Profiling Act, explains “the draft DNA Profiling Bill (hereinafter “Bill”) pending before parliament attempts to create an ambitious centralized DNA bank that would store DNA records of virtually anyone who comes within any proximity to the criminal justice system. Specifically, records are to be maintained of suspects, offenders, missing persons and “volunteers.” The schedule 2 to the Bill contains an expansive list of both civil and criminal cases where DNA data can be collected including cases of abortion, paternity suits and organ transplant.

In all fairness, the Bill contains provisions limiting access to and use of information contained in the database, and provides for the deletion of a person’s DNA profile upon their acquittal.

In simple terms, the Bill will codify the set procedures of a comprehensive legislation regulating the collection, use, analysis and storage of DNA samples while creating a DNA Database. DNA analysis has consistently been instrumental in criminal investigation as strong scientific evidence under the Criminal Procedure Code. However, the clouds of doubt are hovering on the ethics, privacy, use and abuse of the data. Such advanced forensic information collection involves a lot of money which increases the risk of corruption. Another factor is the consent of individuals that is mandatory in order to collect the body substances for record. Forensic, legal and genetic experts raise some reasonable doubts, expressing possibilities of cross contamination of samples, mislabeled samples, and misrepresentation of test disclosure, typing errors and transplanting DNA samples intentionally.

In a country where almost all the developmental parameters indicate a developing trend, where there are scams, allegations of misuse and abuse and where over 70 per cent of the population do not understand what DNA means, taking such  a vital decision of establishing and maintaining a DNA database doesn’t seem to be wise in any way. In India around 3.3 million arrests have been made in criminal offences. And the task of creating a DNA database of such magnitude is enormous, and costly.

This apart, there are several ambiguities regarding the provisions of the bill. For example, the Bill doesn’t say clearly with  regard to the circumstances under which one’s DNA will be collected for the database building ‘with or without consent’ of the person. The UK and the USA grant collection of DNA sample without consent within a  stipulated time frame as their laws clearly assign when DNA sampling can be done.

When DNA data are collected, the persons will have to provide their name, gender, address and caste. However, the timeframe  for the deletion of one’s DNA from the database is yet to be set. So it raises serious doubts on how long one’s DNA is kept on record.

DNA Profiling Bill allows victims of accidents and disasters to trace missing persons for civil disputes. The Bill even permits creation of population statistics, identification research, parental disputes, issues related with reproductive technologies and migration as well.

Infringement into the privacy of a person as mentioned in the bill also raises eyebrows across demographics. DNA Profile can disclose the privacy of a person including medical history, family history and other such private details. One of the databases based on caste may deepen social rift as the politicians may target some specific caste for their criminal indulgence for mere divisive social vote bank engineering.

The worst part is that the draft bill has provision of collection of “intimate body samples” from “the genital or anal area” and also breasts in the case the suspect is a female. Further, there are provisions of external examination of private parts. Taking photograph or video recording in those areas is also allowed in case there are any wound or impression that the help further investigations. Such provisions may push civilian priorities set aside and DNA Database may get abused.

Even the study by the Council for Responsible Genetics points out that there are certain ambiguities in the bill that raises security concerns. It states that “rather than choose to link the DNA profile data to a specific offender or case, the drafters of the Bill instead like the “body substance or body substances” with that specific offender or case. Whether sloppy drafting or clever nuance, this provision elides the DNA profile with the DNA sample, injecting unneeded — and potentially harmful — ambiguity into the proposed law.”

The paper further suggests compounding of this ambiguity. It  states that, “Access to Information” opens the door to much  more than DNA profiles alone being kept on the government database. In all three of its subsections it purports to govern access to “the information” contained in the database, not “the DNA profiles” contained in the database.

Taken at face value, this provision of the Bill suggests that any and all sort of “information pertaining to a convict” that might be derived from his or her DNA can be stored on the database. Even if prudential oversight provisions elsewhere in the Bill suggests a tightly controlled technoforensic apparatus, the overbroad construction of provisions raise significant questions about the wisdom of enacting the text in this form, states the study.

A social activist, on the condition of anonymity, said that police excesses have been making headlines and allegations pop up almost every now and then. People in India do not feel secure with police around and passing of this bill will give them all the  necessary power to interfere and disturb the private lives of any individual.

The potentials of the bill in solving crime is not that great when compared to the threats it poses on the privacy and security of the citizens of India. Not only police, even terror outfits, red rebels and other anti-social elements could have a free way into committing hi-tech crimes, with access to such data. And the record of Indian establishment in maintaining sanctity or secrecy of data is not enviable.

The supporters of the bill assure that the data will be maintained in the safest corridors but they fail to take into account the extent of advancement in cyber-crimes. Moreover, there are several grounds on which any investigation officer can have access to the data with all legal consent and abuse the same for personal purpose.

The DNA bill is, therefore, not fit for contemporary India. Every step, right from collection of samples to maintaining it, using for investigation to its deletion remains unclear in the present draft of the bill. The situation therefore will be alarming if the bill actually becomes a law.

Kumar Deepak, Environmentalist with the United Nations Development Program (UNDP), sums up what more is needed to get the bill passed. He says, “The draft of the DNA Profiling Bill needs a more comprehensive legislation regulating the collection, use, analysis and storage of DNA Samples.” Perhaps an even more imperative  requirement is to sensitize and the law enforcement apparatus so that citizens are willing to trust them with any information, personal or otherwise.

DNA DECODED

Deoxyribonucleic Acid (DNA) contains the instructions needed for an organism to develop, survive and reproduce. To carry out these functions, DNA sequences must be converted into messages that can be used to produce proteins, which are the complex molecules that do most of the work in our bodies.

DNA is rock solid evidence that convicts the guilty and exonerates the innocent. Analysts can compare the suspect’s DNA to DNA left behind at the scene of the crime. Results can confirm that a suspect was involved, or can help clear someone wrongly accused.