Three Dutch laboratories, one of them being the Erasmus Medical Centre of the Rotterdam University, have over the past several years been conducting DNA research in cooperation with Chinese scientists, as shown by the results of an inquiry by Follow the Money and RTL Nieuws. In this DNA research, blood samples were used from members of the Uighur population, an oppressed (religious) minority in China. Dutch researchers were also working together with China on the development of sensitive DNA techniques. According to professor Yves Moreau of the Belgian University of Liège, the joint Dutch-Chinese project is ‘fundamentally unacceptable’, as the scientific insights garnered may be used by the Chinese authorities to keep track of minority members in a political climate of oppression.
So what exactly does the law have to say about the use of DNA? And should we be generally happy or rather cautious about the development of (new) DNA technology? In this blogpost we will take a closer look at the use of DNA by governments.
DNA techniques as practical and helpful tools
In The Netherlands, the governmentprimarily uses DNA research as a tool for identifying suspects of serious crimes such as murder or sexual assault. The legitimate basis of this application is provided by the Dutch Code of Criminal Procedure and the DNA Testing Convicted Persons Act. Rules also apply to storing DNA material which are laid down in the DNA Test Decree.
DNA techniques may for instance be deployed at crime scenes. If DNA traces are found in a crime scene investigation, with no other indications of the suspect’s identity being available, DNA techniques can be used to determine skin, eye and hair colour or ethnical background of the perpetrator, as explained by investigative journalist Siem Eikelenboom on NOS Radio 1 News.
Processing special categories of personal data
Using DNA techniques implies the collection of genetic data, qualified by the GDPR as falling under the definition of special categories of personal data which need to be handled with extra care.
Because of their sensitive nature, special categories of personal data are specifically protected by law, meaning, among other things, that processing such data is not allowed (Article 9(1) GDPR) unless one of two possible exceptions applies. Either there is explicit consent from the data subject or processing is necessary for one of the reasons listed in Article 9(2)(b-j) GDPR. In the latter case consent is not required.
The GDPR however, does not apply to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences (Article 2(2)(d) GDPR).
European law perspective
From a privacy legal perspective, processing health-related data is also regulated under EU law. Article 8 of the European Convention on Human Rights (ECHR) guarantees, among other things, the right to respect for private life. Which includes protection of personal data and the right to physical integrity, the intention being to protect citizens against arbitrary interference with rights mentioned in the article.
Jurisprudence from the European Court of Human Rights shows that both collecting and storing cellular material (DNA) infringes on the rights listed in Article 8(1) ECHR. With respect to storage, the Court takes into account the future application scope of DNA analysis in terms of the many different types of information that may be derived from cellular material with the development of more advanced techniques. In view of this information potential, storing DNA is considered a (far-reaching) infringement of Article 8(1) ECHR.
As specified in Article 8(2) ECHR, this can be justified if the infringement (i) is provided for by law, (ii) serves for the performance of one of the exhaustively listed target criteria and (iii) is necessary within the context of a democratic society.
Although the Court does acknowledge the value DNA analysis brings to investigative tasks, this does not mean that no restrictions apply to the use of DNA. Storage, for instance, has to be controlled by strict safeguards, including e.g. the specification of retention periods.
Abuse of power and the violation of human rights
While DNA techniques have undisputed merit as investigative tools, there is also a very real danger of the abuse of power. The aforementioned inquiry by Follow the Money and RTL Nieuws did show, for instance, that the Chinese scientists involved in joint research projects with Dutch laboratories were indirectly (if not directly) linked to Chinese law enforcement, in some cases even being paid to share advanced DNA expertise, thereby making the related techniques available to Chinese police officials who could then use the know-how for purposes of oppression and persecution of (religious) minorities.
As early as 2017, Human Rights Watch (HRW) put out an alert to the extent that under the guise of medical research China was engaging in large-scale collection of DNA material taken from minorities within the country. The – forcibly acquired – blood samples were being provided to the national police force, stored in large databases and used for DNA profiling, thus allowing for minority disadvantaging.
This is merely an example of the way in which the use of DNA samples (by governments) can lead to the abuse of power. From a perspective of protecting fundamental human rights, therefore, it is essential for the collection and storage of DNA material to be governed by strict and unambiguous regulations.
In response to the Follow the Money and RTL Nieuws report, a number of political parties in The Netherlands are calling for measures to prevent Dutch DNA expertise from falling into the hands of the Chinese national regime.
China, already known as ‘Big Brother (2.0)’ for its extensive use of surveillance and big data to monitor the nation’s citizens, is clearly in the government-initiated process of building the world’s largest DNA database, managed by Chinese law enforcement.
Dutch member of parliament for the Christian Democrats René Peters has stated to have ‘grave concerns’ about national laboratories contributing to scientific research the results of which may be used, in this case by the Chinese authorities, in any number of potentially negative ways.
Technological progress is opening up numerous new possibilities in all sorts of areas, including in the field of criminal law. Increasingly, advanced DNA techniques are supporting the efforts of crime investigators, allowing for the successful completion of many ‘cold cases’, sometimes years after the fact.
But whatever their practical worth, using these new DNA techniques and maintaining large DNA databases may also lead to the abuse of power by national authorities – with human rights violations as a potential result. The availability of cellular material presents a clear privacy risk that can only be mitigated by strict regulatory control. The authorisation given to governments regarding the use of DNA needs to be clearly defined, because a lack of explicit and applicable rules introduces the risk of governments gaining dangerous amounts of power and influence over their citizens.
In short, it is considered highly undesirable for Dutch DNA expertise to be shared with Chinese authorities, as there are no guarantees as to the application of the research results which, worst-case scenario, may be used as tools for oppression. There is every reason to demand strict rules for the transfer of knowledge and technology. It is the only way to prevent the use of human DNA to inhumane ends.