Jennifer Wagner (@DNAlawyer) has a great post up on the potential legal implications of the recent ENCODE project publications. As a little background, the ENCODE project generated tremendous headlines by suggesting that a much larger portion of the genome is functional than previously estimated, though with what many have pointed out is a questionable rendering of the term “functional.” It turns out this is not merely an academic matter, as Wagner demonstrates in reference to CODIS (the FBI’s Combined DNA Index System):
Across the United States there are numerous cases challenging the constitutionality of statutes that integrate DNA profiles (namely, the CODIS profiles often called “DNA fingerprints”) into the routine booking procedures upon arrest.[i] At the heart of these cases is whether a CODIS profile provides law enforcement with only identification information or, in the alternative, with information about an individual’s physical appearance or health conditions.
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Motivated to provide clarity for the legal profession, we explored the human genome and scoured the available literature and databases for evidence that the DNA markers used by CODIS have any function. We found that, while the markers often lie within genome regions and genes associated with disease states or genome function, there was no evidence that the markers’ “short tandem repeat” genotypes are predictive of human traits.
The tricky and non-trivial semantic understanding of “associations” and “functions” (related to my previous comments on genomic “information” vs. “knowledge”) is at issue here, and the pressures of headline-generating publications do not help.
We are hopeful that how the forensic, scientific and legal communities think about genome “function” and “associations” will become more nuanced to include genotypes so that policy discussions regarding law enforcement use of DNA markers and constitutional privacy rights afforded by the Fourth Amendment can be appropriately placed on whether any of the CODIS genotypes have measurable positive (or negative) predictive value for any known human traits.
This is an issue I bring up in several of my courses. While we might use the phrase “genetic fingerprint,” that phrase embodies a significant paradox. Whereas we generally associate the concept of fingerprints with a value-neutral identifying marker (perhaps with negative connotations associated with the process of “being fingerprinted” and criminality). In contrast, ask a non-biologist about what your genome is, and the most common answer you will here in response is some version of “the blueprint of life.” There are many problems with this conceptualization of the genome as a “blueprint,” but it highlights the commonly held view that your genome reveals something more about you than simply who you are, it also has the potential to say who you might become. That is a big difference.
I try to avoid being a genetic fearmonger, but this distinction between a value-neutral identifying marker and a value-laden marker of potential is an important point to keep in mind.
