While a noble attempt, this bill does bring up concerns around biases in law and infringement of personal privacy
This Bill, while a noble attempt to address the existing gap in regulating the use of biological sample evidence, does bring up concerns around biases in law and the lack of privacy and dignity of individuals. Policymakers and relevant authorities must address these issues before such legislation extends to other areas of law enforcement.
The DNA Technology Bill, in its draft, aims to set up DNA data banks across the country and DNA laboratories for testing and storing DNA profiles and use these for case resolution in crimes (primarily sexual assault).
The Bill highlights the need for court approval in civil matters, consent of individuals in criminal investigations, and identifying missing persons. However, the Bill still needs to outline the necessary consent requirements for use in civil cases, taking agency away from those who may be involved in civil disputes. Further, a segment of the Bill discusses the “taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body”. This inclusion indicates an incongruity in the Bill’s understanding of DNA evidence as biological samples to further include photographic forensic samples. The integration of photographic or video material in this legislation has created an unnecessary caveat in how this evidence can be collected, stored, and used, especially since such samples may go against privacy requirements (if the photographic forensic data is used in combination with other digitised data), even if the evidence espouses the collection guidelines within this regulation.
The application areas cover controversial disputes relating to pedigree, issues pertaining to reproductive technologies, immigration or emigration, and issues relating to establishing national identity.
DNA evidence can place suspects at the location of the crime; this, in isolation, is not enough to mandate their conviction. Thus, other evidence, such as geotagged evidence, mobile records etc., will be needed to approach the case holistically. In addition, the combination of digital and biological data digitised and maintained on a database further induces privacy concerns. These concerns regard not only the suspects but also the risk of larger audiences’ DNA being hosted by data laboratories if they have interacted with the crime scene in any capacity. In addition, DNA profiles will likely include virtually everyone since DNA is left at the crime scene before and after the crime by several persons who may not have been involved in the crime. Thus, if combined with existing data biases in law enforcement, the DNA profiling bill can contribute to data that can be misused for caste-based or community profiling in the country, especially in cases where minority groups are disproportionately criminalised. DNA can reveal sensitive information used to criminalise a community and disclose information on ancestry, feeding into social discrimination. Further, with video evidence being under the umbrella of data collected in this Bill and the introduction of FRT to enhance Indian policing, the possible linkages of forensic data to surveillance systems need immediate oversight as lack of accountability can add to existing concerns on privacy. The Bill creates an umbrella databank for multiple purposes; the main concern is the need for clarity on what data may be stored. With the recent introduction of the new Digital Personal Data Privacy Bill removing differences between sensitive personal data and personal data and adding to it the nuance of only governing digital data, privacy has become a popular concern. Since individual privacy is a criticism brought up in every facet of use, the DNA Technology Bill should not depend on launching a personal data protection bill and, in its absence, should create further clarifications on privacy guidelines. In addition, to make DNA profiling more reliable, the account must be enhanced with specific guidelines to address the use of DNA technology in combination with other tools used in the justice system to avoid a future miscarriage of justice.
With video evidence being under the umbrella of data collected in this Bill and the introduction of FRT to enhance Indian policing, the possible linkages of forensic data to surveillance systems need immediate oversight as lack of accountability can add to existing concerns on privacy.
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Shravishtha Ajaykumar is Associate Fellow at the Centre for Security, Strategy and Technology. Her fields of research include geospatial technology, data privacy, cybersecurity, and strategic ...Read More +