Snohomish County Cold Case Detective Jim Scharf, left, presents new images rendered using phenotype technology of a potential suspect in the unsolved case of the 1987 double homicide of Jay Cook and Tanya Van Cuylenborg during a press conference in Everett, Washington on Wednesday, April 11, 2018. THE CANADIAN PRESS/AP, The Herald, Ian Terry

DNA privacy questioned in Victoria cold case arrest

While the arrest has brought closure to victim’s family, new investigative strategy has prompted debate about privacy rights

As the years stretched into decades with no arrests after his sister’s body was found in Washington state, it was becoming hard for John Van Cuylenborg of Victoria, B.C., to maintain hope for any justice or answers.

Then he received a phone call about investigators getting a break in the cold case.

It involved a controversial new investigative technique that American police have been using to comb through the genetic family trees of potential suspects in such unsolved crimes.

The technique is raising questions about privacy of a person’s DNA on both sides of the border.

“It was surreal, really, after 31 years to get that phone call,” Van Cuylenborg said. “It was very gratifying for all of us who have held out hope for that long that something would come of it, but without the technology, I don’t think it would have happened.”

Police in Snohomish County, Wash., announced the arrest of William Earl Talbott in May and have charged him with first-degree murder in the death of Tanya Van Cuylenborg, who was 18 in November 1987. The body of her boyfriend Jay Cook, 20, was found about an hour’s drive away.

READ MORE: Arrest made in 30-year cold case homicide

Detectives said they uploaded a DNA sample from the crime scene to an open-source genealogy database called GEDmatch. After identifying genetic relatives, investigators built a family tree that led to Talbott as a suspect. Police then collected a fresh DNA sample from a discarded cup. It was a match.

The charge against Talbott has not been proven in court.

While the arrest has brought some sense of closure to John Van Cuylenborg, the new investigative strategy has prompted debate in Canada about privacy rights.

Josh Paterson, executive director for the B.C. Civil Liberties Association, warned that positive results don’t necessarily justify the process.

“The fact of one story or a handful of stories seemingly going in a positive way doesn’t take away our concern for the potential of misuse for these kinds of tools,” he said.

Even in cases where a website warns users that their genetic information may be shared with police, Paterson said, it means someone’s third cousin may be consenting on their behalf.

In Canada, there are strict rules for good reason around the use of genetic information in the National DNA Data Bank, which limits samples to individuals convicted of certain crimes and regulates their use by police, he said.

In contrast, he said American detectives appear to be fishing for suspects through genealogy sites that store genetic information.

“They’re basically throwing a net in the sea and asking these companies what they might come back with,” he said.

On the other hand, Eike-Henner Kluge, a professor of philosophy at the University of Victoria with an interest in biomedical and information ethics, said there are cases where privacy rights can be breached if there’s a threat of harm to others, and unsolved murders may be one of them.

“Any right is subject to the equal and competing rights of others,” Kluge said in an email. “This is also recognized in the classic legal statement, ‘Your right to swing your arms ends just where the other man’s nose begins.’”

READ MORE: DNA sketch aims to crack cold case of murdered Victoria couple

Genetic genealogist CeCe Moore, who assisted in the Van Cuylenborg investigation, said she used genetic genealogy to help thousands of adoptees find their biological families before agreeing to help law enforcement.

“It’s something I declined to do for a very long time. I was concerned about informed consent, about people in the genetic genealogy databases having their DNA used for a purpose they had not consented to and were not aware was a possibility,” Moore said, adding it took her only eight hours to identify a suspect.

After genetic genealogy was used to make an arrest in the decades-old Golden State Killer case in April and GEDmatch changed its terms of service to alert people to possible police involvement, Moore said she feels more comfortable with the idea that people are informed.

She also said while she can help police identify suspects, their DNA must still be tested against samples from the crime scene in the traditional way.

“What I’m doing is only a hint or clue pointing them in the right direction. It’s not evidence they could use for an arrest,” Moore said.

It’s unclear if Canadian law enforcement are using the same techniques.

The Office of the Privacy Commissioner of Canada said direct-to-consumer genetic testing companies are subject to federal and provincial private-sector privacy laws, if they are based in the country or have a real and substantial link to Canada and are engaged in commercial activities.

Generally speaking, Canadian police would have lawful authority to pursue an action such as trying to identify suspects with DNA information held by private companies under those laws, the office said.

It also noted, however, that the DNA Identification Act, which introduced the National DNA Data Bank in 1998, does not allow for familial searching.

“Our view is that DNA constitutes highly sensitive personal information. While DNA profiles can help solve cold cases … and bring emotional closure to victims and families, their collection and retention must respect the highest possible standards of fair balance between security and privacy,” it said in an emailed statement.

“As direct-to-consumers genetic tests become increasingly available, particularly over the Internet, it is important to understand their privacy risks.”

The Canadian Press

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Victoria Police Chief Del Manak called changes to the More Justice, More Peace mural “offensive” in a statement Oct. 30. (Jane Skrypnek/News Staff)
Victoria police chief calls new changes to downtown mural ‘offensive’

‘ACAB’ replaced with a note accusing the City, VicPD of silencing BIPOC

Paul Nestman’s Exemplary Service Award, which will be presented to him on Oct. 27 by Lt.-Gov. Janet Austin during a virtual ceremony. (Provided by Tammy Robinson)
‘Trust your team’: Victoria man receives Exemplary Service Award from Coast Guard

Paul Nestman, along with 36 others, receive awards during virtual ceremony

The ‘fall back’ time change Nov.1 means earlier sunrises – and sunsets – for British Columbians. (Nina Grossman/News Staff)
Clocks ‘fall back’ for B.C. residents on Nov. 1

Daylight Saving Time ends, B.C. still working on permanent switch to ‘spring ahead’ time

Norm Scott, president of the Royal Canadian Legion Branch no. 91 in Lanford, pins the first poppy to launch the annual Poppy Campaign on George Baker, who served with the Royal Canadian Air Force from 1953 to 1989. Baker said it was an honour to be chosen for something so significant for veterans everywhere. (Rick Stiebel/News Staff)
Poppy campaign launches in Langford with pinning ceremony

The poppy campaign is officially underway with the first of the pins… Continue reading

Over the years, Janice Blackie-Goodine’s home in Summerland has featured elaborate Halloween displays and decorations each October. (File photo)
QUIZ: How much do you really know about Halloween?

Oct. 31 is a night of frights. How much do you know about Halloween customs and traditions?

FILE - In this Jan. 23, 1987 file photo, actor Sean Connery holds a rose in his hand as he talks about his new movie “The Name of the Rose” at a news conference in London. Scottish actor Sean Connery, considered by many to have been the best James Bond, has died aged 90, according to an announcement from his family. (AP Photo/Gerald Penny, File)
Actor Sean Connery, the ‘original’ James Bond, dies at 90

Oscar-winner was knighted by Queen Elizabeth II in 2000

President Donald Trump speaks at a campaign rally in Allentown, Pa. on Oct. 26. (AP Photo/Alex Brandon)
POLL: How closely are you following the U.S. presidential election?

It may feel like it’s been going on forever but the U.S.… Continue reading

This house at 414 Royal Ave. became notorious for its residents’ and visitors’ penchant for attracting police. It was also the site of a gruesome torture in August 2018. It was demolished in 2019. KTW
6-year sentence for Kamloops man who helped carve ‘rat’ into flesh of fellow gang member

Ricky Dennis was one of three men involved in the August 2018 attack

Cpl. Nathan Berze, media officer for the Mission RCMP, giving an update on the investigation at 11:30 a.m., Oct. 30. Patrick Penner photo.
VIDEO: Prisoner convicted of first-degree murder still at large from Mission Institution

When 10 p.m. count was conducted, staff discovered Roderick Muchikekwanape had disappeared

Among the pumpkin carvings created this year by Rick Chong of Abbotsford is this tribute to fallen officer Cont. Allan Young.
Abbotsford pumpkin carver’s creations include fallen police officer

Rick Chong carves and displays 30 pumpkins every year

An online fundraising campaign in support of the six-year-old boy, Edgar Colby, who was hit by a car on Range Road Oct. 25 has raised more than $62,000 in a day. (Submitted)
$62K raised in 1 day for boy in coma at BC Children’s after being hit by vehicle in Yukon

The boy’s aunt says the family is “very grateful” for the support they’ve received from the community

Police service dog Herc helped RCMP locate and arrest suspects in the Ladysmith area on Oct. 23, 2020, related to a stolen vehicle. (Submitted)
RCMP nab prolific property offender in Ladysmith with assist from police dog Herc

Police attempted to stop the vehicle but it fled from the area towards Chemainus.

Health care employees take extensive precautions when working with people infected or suspected of having COVID-19. THE CANADIAN PRESS/Chris Young
WorkSafeBC disallows majority of COVID-19 job injury claims

Health care, social services employees filing the most claims

Most Read