Genometric data privacy within the ECHR regime

International Data Privacy Law, vol. 15, pp. 1–17

Abstract

The European Court of Human Rights (ECtHR) has been adjudicating law enforcement use of deoxyribonucleic acid (DNA) data since 2006. We compare and contrast DNA data-related terms used by the ECtHR with the terms genetic and biometric data as defined by law, and propose a new term: genometric data. We define genometric data as personal data resulting from specific technical processing relating to identification markers in the human genome, which allow or confirm the unique identification of an individual. We show that law enforcement use of genometric data in criminal investigations has fewer data privacy challenges compared to genetic and biometric data. The ECtHR protects genometric data under Article 8 of the European Convention on Human Rights (ECHR) on the right to respect for private life (right to privacy). We posit that the ECtHR, without explicitly naming it as such, has developed a specific category of genometric data privacy within the right to respect for private life under Article 8 ECHR. We define genometric data privacy as an interest that individuals and their genetic relatives have over their genetic data that can be used to identify them individually, whether directly or indirectly, within the bounds of data protection and privacy laws. We identify the ECtHR boundaries of genometric data privacy for the use of genometric data in criminal investigations. The European Court of Human Rights (ECtHR) adjudicated law enforcement use of deoxyribonucleic acid (DNA) data for the first time in 2006 in an admissibility decision in Van der Velden v the Netherlands.1 Given its legal weight, it is the Court’s Grand Chamber decision in S. and Marper v the United Kingdom2 that caught global attention at that time.3 In both cases, the ECtHR affirmed that the taking and retention of cellular samples and DNA profiles are sufficiently intrusive to constitute an interference with the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR).4 The ECtHR has maintained the line of reasoning in Marper in various decisions that ensued with some variations given the circumstances of the case, such as in W. v the Netherlands (2009),5 Peruzzo and Martens v Germany (2013),6 and Aycaguer v France (2017),7 and more recently, in Gaughran v United Kingdom (2020),8 Trajkovski and Chipovski v North Macedonia (2020),9 and Petrović v Serbia (2020).10 However, a closer look into the text of those judgments reveals that the ECtHR sometimes confounds various DNA-related terms, such as ‘DNA profile’ and ‘DNA material’. The first aim of this article is to propose a new term—genometric data—and distinguish it from genetic and biometric data as defined by the Council of Europe’s (CoE) Convention 108+,11 the European Union’s General Data Protective Directive (GDPR),12 and Law Enforcement Directive (LED).13 We demonstrate that the use of genometric data by law enforcement in criminal investigations is more suitable privacy wise compared with genetic and biometric data. As law enforcement continues to use DNA data in catching criminals using various DNA-based techniques—such as investigative forensic genetic genealogy in the Golden State Killer case14—we argue that it is important to provide a legal basis for this law enforcement practice in various legal jurisdictions; in the of within the The aim of this article is to propose a specific category of genometric data privacy within the right to respect for private life under Article 8 ECHR. is the aim of this article to provide a of various the and its to data to identify legal genetic article on genometric data privacy as be the of ECtHR The of this article The on and genometric data in and the a of genometric data. We the and legal of genetic data and the of the of genetic data in European We compare the genometric data with the terms, genetic and biometric and show it is a more to be used in criminal investigations. The on law law enforcement use of DNA the and of ECtHR law law enforcement use of DNA data. as a to the on data privacy within Article 8 which directly the of genometric data The on data privacy within article 8 a of genometric data privacy and the boundaries or by the ECtHR that allow law enforcement use of genometric data in criminal investigations. The on an of the of this article its In adjudicating to law enforcement use of DNA-related the ECtHR various first into the of and and to genetic and data. the of the of genetic data in European it into and terms are defined and used by the ECtHR in its law and the of the use of the the a human is a of The genetic is the within and in the The DNA the to the of the for its and is a of the DNA that for a which to an such as or The of on the of the that the DNA which are to their and have more and their for the of an genome, on the to the of an the of the DNA that are that for a can be used to identify such as those used in Human and genetic data are from of the human which the genetic and to some their DNA in the In law enforcement the of DNA is or of the from which the genetic is it is that the of DNA the of within an is and unique to that is in of the are the for that the DNA is the DNA is and the for the of the are and for the data is for the its the for and into that is In its and using data data to the DNA of an or of a of the as the that its genetic data to the DNA of In both the of the data is the genetic which is the since the DNA is to as the data that is from it is to as it that and legal on the be the it the of law, it is the legal that as to or is by that in of a legal of a legal is important it as to whether is on the law and be to in of In the category of by the European Union’s General Data which on genetic data its of of personal data under Article The Council of on the define genetic data it its data protection law, Convention the data protection the Data and on by the on the Convention it that first defined genetic and that with by the in Convention In case, the ECtHR adjudicated genetic data the as in the on law law enforcement use of DNA is by Convention and the is genetic and for that genetic data with its legal a look into the of the of genetic data in the European and the to its in In the Article Data an on the on the of the of the Human the of the in the and of in a it the to provide privacy protection to individuals to their genetic that the data protection law at the the Data Directive genetic data in its of of The to genetic data in the the category of However, that to the of genetic given that it genetic data with a and with the of an genetic data is a to genetic data in the data protection legal the Council of (CoE) and the European the of genetic data with the Data Convention of its in the and Convention this in a more global from the United in and In the Article Data its on of the of a new category of genetic in in its on of data the explicitly genetic data to be in the of data at the and it that it be the European to the which a of genetic of genetic data its to the of of personal under Article of the which in defined under Article as data relating to the or genetic of a which unique the or the of that and which in from an of a from the in of the its data protection law, Convention it genetic data its of of data under Article defined genetic data data relating to the genetic of an which have been or as from an of a from the DNA or or of to be Convention to have been from the with As a of the and legal the on whether are genetic data as and law or in the such as genetic are as genetic data under the law, or whether be as personal or the of both by the is a it is it given the of the on law enforcement use of genetic data in the law of the the category of genometric data with defined of genetic and biometric data in European legal and under the Convention under The in are in both and and and in Convention and In to the of the ECtHR law enforcement use of DNA data in the on law law enforcement use of DNA it is important to the Court’s of which has a on their In v the that the in the law the taking of a DNA from the However, the ECtHR that the the it the right to respect for private life it the taking of DNA the of using the right terms and their since have an on whether a specific at is by it or The various terms to forensic used by the ECtHR are in However, from the DNA defined in Marper the law provide of the terms In this it is that the ECtHR to the of given that it is a Grand Chamber and that the Court in its of DNA and DNA Gaughran a DNA as of from the DNA of DNA and DNA Gaughran a DNA as of from the DNA of ECtHR law law enforcement use of DNA-related data. the various DNA terms to forensic used by the DNA to of ECtHR law law enforcement use of DNA-related data. the various DNA terms to forensic used by the DNA to In DNA-related terms are cellular samples and DNA samples are with ‘DNA DNA samples to the DNA from cellular the cellular samples samples are with which technical since cellular samples are samples are cellular As to DNA the ECtHR is more in to them as that are in In a DNA is defined as of that from the DNA The ‘DNA used without the it that it to ‘DNA using the ‘DNA given that profiles are that can be and to cellular However, it is in Marper the ECtHR a as to The Court at the that of the personal by the in the case, DNA profiles and cellular constitute personal data within the of the Data Convention as to or The text that cellular samples constitute which is a more ‘DNA However, it that the ECtHR the ‘DNA to to cellular samples it DNA profiles and cellular samples into a category of ‘DNA The Court is a legal that cellular samples are the time Marper defined in European law, the of the Data Directive The ECtHR used the terms ‘DNA and ‘DNA without the text of both terms to to both cellular samples and DNA in the that it ‘DNA The ECtHR used the and DNA and and DNA of DNA profiles and cellular The ECtHR used the ‘DNA without the DNA-related it is to the ECtHR by ‘DNA material’. can both cellular samples and DNA a to ‘DNA and ‘DNA it the and DNA However, ‘DNA ‘DNA given that the the ‘DNA the ‘DNA ‘DNA in of the decision the Court to both argue that ‘DNA to ‘DNA from which the DNA profiles are or In case, the ECtHR by terms, since their legal from their as at the of this that the ECtHR is in its use of DNA-related terms, without that the it the DNA-related terms it The decisions of the Court on law enforcement use of DNA-related W. v the Netherlands Peruzzo and Martens v Germany and Aycaguer v France Gaughran v United Kingdom Trajkovski and Chipovski v North Macedonia and Petrović v Serbia on the of DNA-related The is a of on the ECtHR or to in its The of the of Trajkovski and Chipovski v North the Court used the terms DNA DNA DNA DNA DNA and DNA to this The Court that the DNA samples and DNA profiles from those samples in of the criminal the first on the DNA the DNA from the as by the DNA profiles to be in the The to the to the taking of DNA samples from the provide that DNA data is in the it has been that the or of the have on the and retention of DNA The ECtHR to DNA-related As to the use of the is that the ECtHR its use in criminal investigations by law it Marper that been as the for the protection of genetic data used for law enforcement the Court the in that at that time genetic data in Convention is that the ECtHR on the in its decisions law enforcement use of DNA Gaughran v United Trajkovski and Chipovski v North and Petrović v of which in The ECtHR the to to DNA profiles in for that the ECtHR to DNA with as in genetic biometric data the new of data under Article of the for law enforcement under Article of the biometric and genetic data as of data under Article of Convention However, their in in with the ECtHR to allow law enforcement DNA data in criminal that within the of the right to respect for private life under Article 8 ECHR. to propose the new genometric data. the of the for genetic and biometric data in Convention and and at the time define genometric data as personal data resulting from specific technical processing relating to identification markers in the human genome, which allow or confirm the unique identification of an individual. is that the of law enforcement is the of DNA to identify criminal samples at the are the use of DNA such the of an to and under the of genetic and of biometric data have privacy In this the is its use in or the unique identification of an individual. The legal of biometric data is closer to that as it or the unique identification of an data is technical However, biometric data to or as compared to genetic data which to or genetic the of identification by law enforcement using is to to of has to use identification markers in the human that are to identify the of the at the or to confirm the of a criminal a more a by a forensic the of the genometric data in criminal developed a new which is to use DNA markers that at the time is of criminal In this new use of genometric data and it is to law enforcement for criminal identification the of DNA in in new to be developed to this We argue that law enforcement to the use of genometric data in its to identify criminal samples at it fewer privacy challenges compared to using genetic and to a biometric data. has specific interest in whether criminal have a to a genetic or whether or of which can the privacy is to identify criminal law enforcement use genometric genetic data biometric that it can on its criminal investigative without with data privacy We are that genometric data can be used for law enforcement the that the use of genometric data by law enforcement in criminal investigations is more privacy at within the the use of genometric data has its privacy be in the on data privacy within Article 8 genometric data In to have a of that first in the on law law enforcement use of DNA the law of the ECtHR from which the of genometric data privacy can be the and of ECtHR law law enforcement use of DNA data in to more the of genometric data privacy that in the on data privacy within Article 8 of has given the of the Court’s over the of the Council of which are the of the the is in the of to the as its as in the the of the Van der Velden v the Netherlands is the at the ECtHR DNA and retention for law enforcement The of and to the and retention of DNA the ECtHR the for of it important that in Marper and by DNA profiles and as the Court that the of cellular a to an on the the Court affirmed that of cellular the of such as retention constitute as an interference to the decision of the European of Human Rights in v it intrusive to constitute an interference with the right to respect for private under Article The of be the of DNA data which provide more compared to a from the the which the of the DNA of an a as a to and the taking of a In cases, such as Marper Martens Aycaguer Gaughran Chipovski and Petrović the ECtHR the of the of Van der Velden in the Court’s on DNA and Van der Velden the of the ECtHR to to DNA data given that it the of The category of genometric data that propose in the this of the ECtHR, since it of the DNA that allow identification of an and a with and Marper with to resulting in the of the the line of can a the retention of DNA samples and DNA DNA their is as an interference given that are of the DNA of an is of the and the of personal that can be from DNA samples that an and their its genetic the in the of DNA profiles to identify their retention is to be to an it is that in the the is to the of a of Article 8 by of the and of the of of both cellular samples and DNA the Court’s reveals an of the privacy of cellular samples compared to DNA a in Marper is the protection that the ECtHR to as personal data. the of the decision of the European of Human Rights in and and the in the decision in the Court with the that and which are to the and without a it the that unique an their with in a of to its on cellular samples and DNA the ECtHR that the and retention of Article 8 that the ECtHR a of Article 8 in a for of personal it their on data privacy to be at the the use of genometric data as privacy intrusive compared to genetic and biometric data and it as a of personal data privacy wise for criminal investigations by law the ECtHR DNA data retention case, this time a In W. v the the Court the for that the of the compared to the in Marper of the the Court the of in the law in to the right to privacy of the which is it as the of DNA samples and DNA In the a the ECtHR the retention of DNA data of with for In Peruzzo and Martens the ECtHR with Van der Velden and Marper on the by DNA data to enforcement and the in at the time the for to such of both the the of data—and their be by such However, the Court it that the from Marper in the the in this of of a of the cellular the of the DNA and DNA data is in Martens is the Court’s to the of for the of DNA as as the have an to the of their individuals and the retention of their DNA data in both by the ECtHR provide a of W. and Martens the that the Court to provide for their the been by their that law enforcement use genometric data in criminal identification of data more given that to the identify in the on data privacy within Article 8 in the for to DNA a In Aycaguer v the to for the with an in a The to provide DNA to the of the of to a which the ECtHR to have to an interference within the of Article the of a of the right to respect for private life in this the of the retention and the of the the of to a by of the and with an at the retention Given the of of this retention of the the Court that it is as that such and the of a of to provide of a right to Aycaguer the retention of an DNA in a as the for to the ECtHR the for the of that DNA data. been to be since that the Gaughran and the retention of DNA profiles of individuals in In the ECtHR new judgments on DNA data in In Gaughran v United the of the on a for with a in the In Trajkovski and Chipovski v North of DNA used to the of the In both cases, the Court a in the practice of DNA profiles of In the ECtHR that the of the retention is in the of the retention for that with Martens retention the on the of the to the of data at of the In the retention by the Court to have to an in in the Court that the retention the of to that such retention be to in that the of the Court to a retention is it a specific of the law to the The for the of a in both Gaughran and Chipovski the or of legal in the DNA law for the protection of the right to respect for private life of the In its the ECtHR a more of the of in the from the retention the Court that the law into the of the for on the to the data of the of the the of the the of time that has and the of the with an to have data such The Court that the of in the law is be In the for be as to be In for the law a of with a for of the of data and the Court to a right to respect for private the and of are the of the of can be from this of the of ECtHR on the and retention of DNA data for law enforcement the Court has Van der DNA data constitute personal data to a private and the an interference to the right to respect for private life of those data within the of Article 8 ECHR. whether such an to a of this right to respect for private life an Court’s its a in its the of a of the right to respect for private life has been on the of the which W. and Martens have and The Court’s as more in law, has been on the of legal in the law that to this right In that the retention of the DNA data in Gaughran and line of reasoning their right to respect for private life to the of legal in their laws. The from the the to be the and of an to the retention of DNA and the of its from the in the of retention in the as in the ECtHR in Gaughran that the of individuals is the as that of in it that their right to respect for private life the of DNA data under the without a as in and is it to their retention as be to the right to private life of criminal investigations are as be from the of the ECtHR to to DNA data in Van der its to personal data its to identify an been affirmed by the Court its to that law enforcement use of genometric to identification markers in the a legal privacy wise in criminal as in the are by Article 8 private and The specific category of genometric data privacy in this to the first interest We posit that in the of adjudicating to law enforcement use of DNA data on law law enforcement use of DNA the ECtHR has a specific category of genometric data privacy within the right to respect for private life under Article 8 ECHR. We first define genometric data privacy and identify the boundaries or by the ECtHR that allow law enforcement to within this that it is more privacy wise for law enforcement to use genometric data in criminal propose its category within the under Article 8 genometric data We are of a that has privacy has been defined as interest that or have with respect to genetic be defined as a of to an genetic of genometric data in the on and genometric data in and the define genometric data privacy as an interest that individuals and their genetic relatives have over their genetic data that can be used to identify them individually, whether directly or indirectly, within the bounds of data protection and privacy laws. In genometric data privacy to privacy of individuals and their genetic relatives over their genometric data within the of The specific law in this article is the as by the ECtHR in its on law enforcement use of DNA data on law law enforcement use of DNA In to be under Article 8 an of the private life of an has to be In the at it is the personal or more genometric data as defined in the on and Data in and the We posit that the ECtHR has the boundaries or genometric data privacy that allow law enforcement to use genometric data in criminal investigations as be from the Court’s We boundaries from ECtHR law enforcement to the use of genometric that identification markers in the human that allow or confirm the unique identification of an this case, the criminal Data privacy that the use of genetic allow the use of the or of an or of biometric which allow the use of or are law enforcement use genometric data such as in the of the with Van der Velden on the of DNA data to provide personal data its to identify an individual. law enforcement cellular samples that the criminal has been with without to are that cellular samples can be as and those the the ECtHR cellular samples are as The is that cellular samples which is an personal that the Court has a on the and to provide protection to cellular samples DNA law enforcement be more in its of cellular to legal such as their the of a law enforcement and to it a the ECtHR the genetic in DNA samples in it its on the relatives of the of this and be by is for and more recently, the use of genetic genealogy to genometric data be used to identify the of an this ECtHR law to the of the of genetic the Court has on a that protects As by the privacy of genetic relatives in ECtHR be wise for law enforcement to use and genetic genealogy as a its given the of their legal in to whether law enforcement has to and genetic genealogy and to the law enforcement use genometric data for criminal identification to be given the of genometric data. However, as have been as an of the that can be used as an identification and as a or be as personal as in the of and is in a that it is by in DNA for is used by law enforcement as genometric data a is by as genetic data or The ECtHR as as Van der Velden that the use to which cellular in be in the their retention the of such as in Van der Velden by the in Marper for on the use of However, the Court to that it more that Court the that in the the with genetic be in or in a which be with law enforcement the use of that that be used in as criminal The identification of this new category of genometric data privacy the of and law enforcement use of genometric data and in their and the of the of this the of genometric data its and given its in or it a of their to law enforcement As law enforcement continues to use genometric data for criminal a in the on the of genometric data are to the ECtHR We are to the of legal on the and of genometric data privacy in their of of their as as their from the ECtHR in whether such a category with its article to law enforcement use of DNA data in criminal investigations within the of Article 8 on the right to respect for private the new as from the and biometric are defined under the Convention and We define genometric data as personal data resulting from specific technical processing relating to identification markers in the human genome, which allow or confirm the unique identification of an individual. that in the of adjudicating law enforcement use of DNA data in criminal the ECtHR has a category of genometric data privacy under the right to respect for private We define genometric data privacy as an interest that individuals and their genetic relatives have over their genetic data that can be used to identify them individually, whether directly or indirectly, within the bounds of data protection and privacy laws. We genometric data privacy by the ECtHR in its for law enforcement use of genometric data. The use of genometric data within the boundaries of genometric data privacy law enforcement to on their criminal investigative without with data privacy be for the of data privacy law and for a of protection in of the of DNA-based identification at the time law enforcement to The that have or personal that have to the in this We the of this for their on the

Authors 3

1. Oliver M. Tuazon corresponding Aachen Center for Law and Digital Technologies Institute for the Interdisciplinary Study of the Law Leiden Law School Institute for the Interdisciplinary Study of the Law Oliver M. Tuazon

   Leiden University

   Affiliation as printed

   Centre for Law and Digital Technologies (eLaw), Institute for the Interdisciplinary Study of the Law, Leiden Law School, Leiden University Oliver M. Tuazon, , Kamerlingh Onnes Building, Steenschuur 25, 2311 ES Leiden, the Netherlands

   Institute for the Interdisciplinary Study of the Law Oliver M. Tuazon, Centre for Law and Digital Technologies (eLaw), , Leiden Law School, Leiden University, Kamerlingh Onnes Building, Steenschuur 25, 2311 ES Leiden, the Netherlands

2. Bart H. M. Custers Aachen Center for Law and Digital Technologies Institute for the Interdisciplinary Study of the Law Leiden Law School Institute for the Interdisciplinary Study of the Law Bart Custers

   Leiden University

   Affiliation as printed

   Centre for Law and Digital Technologies (eLaw), Institute for the Interdisciplinary Study of the Law, Leiden Law School, Leiden University, Kamerlingh Onnes Building Bart Custers, , Steenschuur 25, 2311 ES Leiden, the Netherlands. Email: b.h.m.custers@law.leidenuniv.nl

   Institute for the Interdisciplinary Study of the Law Bart Custers, Centre for Law and Digital Technologies (eLaw), , Leiden Law School, Leiden University, Kamerlingh Onnes Building, Steenschuur 25, 2311 ES Leiden, the Netherlands. Email: b.h.m.custers@law.leidenuniv.nl

3. G.J. Zwenne Aachen Center for Law and Digital Technologies Institute for the Interdisciplinary Study of the Law Leiden Law School Institute for the Interdisciplinary Study of the Law Gerrit-Jan Zwenne

   Leiden University

   Affiliation as printed

   Centre for Law and Digital Technologies (eLaw), Institute for the Interdisciplinary Study of the Law, Leiden Law School, Leiden University, Kamerlingh Onnes Building Gerrit-Jan Zwenne, , Steenschuur 25, 2311 ES Leiden, the Netherlands. Email: g.j.zwenne@law.leidenuniv.nl

   Institute for the Interdisciplinary Study of the Law Gerrit-Jan Zwenne, Centre for Law and Digital Technologies (eLaw), , Leiden Law School, Leiden University, Kamerlingh Onnes Building, Steenschuur 25, 2311 ES Leiden, the Netherlands. Email: g.j.zwenne@law.leidenuniv.nl