Orig­i­nal source pub­li­ca­tion: de Sá-Soares, F. (2010). Inter­pret­ing Leg­isla­tive Con­trols of DNA Data­bases. In Karls­son, F., K. Hed­ström and R.-M. Åhlfeldt (Eds.), Pro­ceed­ings of the First Euro­pean Secu­rity Con­fer­ence 2010. Öre­bro (Swe­den).

Inter­pret­ing Leg­isla­tive Con­trols of DNA Data­bases

Fil­ipe de Sá-Soares

Uni­ver­sity of Minho, Por­tu­gal

1. Introduction

DNA (Deoxyribo­Nucleic Acid) is a nucleic acid found within the cells of liv­ing organ­isms that con­tains the genetic code used in the devel­op­ment and func­tion­ing of those organ­isms and that trans­mits the hered­i­tary pat­tern [Web­ster 2002].

DNA was first iso­lated in 1869 by Miescher [Dahm 2008]. Grif­fith con­ducted an exper­i­ment in 1928 that sug­gested DNA car­ried genetic infor­ma­tion [Lorenz and Wack­er­nagel 1994]. In 1937 Ast­bury showed that DNA had a reg­u­lar struc­ture [Ast­bury 1947]. In 1952, Her­schey and Chase con­firmed DNA’s role in hered­ity [Her­shey and Chase 1952]. One year later, Wat­son and Crick sug­gested the first cor­rect dou­ble-helix model of DNA struc­ture [Wat­son and Crick 1953]. Fur­ther sci­en­tific devel­op­ments allowed Kho­rana, Hol­ley and Niren­berg to deci­pher the genetic code [TNF 1968].

The impor­tance of DNA-related dis­cov­er­ies has spurred inter­est in using knowl­edge about DNA in tech­nol­ogy, dri­ving new fields of study such as genetic engi­neer­ing, bioin­for­mat­ics, and DNA nan­otech­nol­ogy, or extend­ing exist­ing ones, such as foren­sics.

In the field of foren­sics, British geneti­cist Sir Alec Jef­freys devel­oped the tech­nique of DNA pro­fil­ing in 1984 [Jef­freys et al. 1985]. By apply­ing this tech­nique, foren­sic sci­en­tists can use bio­log­i­cal sam­ples, such as blood, semen, skin, saliva, and hair, to iden­tity a match­ing DNA of an indi­vid­ual. Usu­ally, DNA pro­fil­ing is an extremely reli­able tech­nique for iden­ti­fi­ca­tion of peo­ple by match­ing DNA pro­files. DNA pro­fil­ing was first used in foren­sic sci­ence to con­vict Colin Pitch­fork in 1988 Enderby mur­ders case [FSS 2008].

From then on, we have wit­nessed a grow­ing use of DNA pro­fil­ing, also known as genetic fin­ger­print­ing, DNA typ­ing, or DNA test­ing, in the realm of foren­sics, with some sug­gest­ing DNA con­sti­tutes the fin­ger­print of mod­ern times.

Since the 1990s, sev­eral inter­na­tional enti­ties have been advo­cat­ing the use of DNA analy­sis in the judi­cial sys­tem and the pos­si­bil­ity of cre­at­ing inter­na­tional acces­si­ble data­bases that include the results of those analy­ses, the so-called DNA pro­files. Sev­eral sci­en­tific groups, agen­cies, and police author­i­ties have pro­duced work in the appli­ca­tion of DNA pro­fil­ing in foren­sics, such as ENFSI (Euro­pean Net­work of Foren­sic Sci­ence Insti­tutes), EDNAP (Euro­pean DNA Pro­fil­ing Group), NIJ (National Insti­tute of Jus­tice), and INTER­POL.

World­wide, coun­tries have cre­ated DNA foren­sic data­bases which are used for crim­i­nal inves­ti­ga­tion pur­poses. The data­bases store DNA pro­files for match­ing with DNA pro­files obtained from bio­log­i­cal sam­ples col­lected in crime scenes or for pur­poses of iden­ti­fi­ca­tion of peo­ple in other con­texts, such as miss­ing per­sons.

Com­monly, these data­bases may con­tain three types of infor­ma­tion: DNA pro­files, per­sonal data, and sam­ples.

Sam­ples are any bio­log­i­cal sub­stances which may be uti­lized for the pur­pose of DNA analy­sis. Usu­ally, the ori­gin of sam­ples is human and the sam­ples may be obtained directly from a liv­ing per­son or col­lected from corpses, things, or places.

DNA pro­files are the result of a sam­ple analy­sis through the exam­i­na­tion of DNA mark­ers, defined as spe­cific regions of genome that con­tain dif­fer­ent infor­ma­tion in dif­fer­ent peo­ple and that, accord­ing to cur­rent sci­en­tific knowl­edge, do not con­vey health infor­ma­tion nor spe­cific hered­i­tary char­ac­ter­is­tics (what is usu­ally known as non-cod­ing DNA).

Per­sonal data are infor­ma­tion related to a sin­gu­lar iden­ti­fied or iden­ti­fi­able indi­vid­ual. In the con­text of DNA pro­fil­ing, a set of per­sonal data is asso­ci­ated with a par­tic­u­lar per­son whose DNA pro­file has been ana­lyzed.

Con­sid­er­ing the arti­fact DNA data­base, one can usu­ally dis­tin­guish two kinds of repos­i­to­ries: DNA pro­files data­bases and biobanks. A DNA pro­files data­base may be under­stood as a set of struc­tured files con­tain­ing DNA pro­files and per­sonal data. A biobank is any repos­i­tory of bio­log­i­cal sam­ples and their deriv­a­tives.

From an infor­ma­tion sys­tems per­spec­tive, DNA pro­files data­bases and biobanks can be under­stood as arti­facts that con­tain infor­ma­tion of bio­log­i­cal nature (the sam­ples) and of sym­bolic nature (the DNA pro­files and the per­sonal data) and that are object of a set of infor­ma­tion manip­u­lat­ing activ­i­ties, namely inser­tion of infor­ma­tion, access to infor­ma­tion, com­par­i­son of infor­ma­tion, and removal of infor­ma­tion. By con­sid­er­ing these arti­facts and their con­tents, together with the set of man­ual or com­puter-based infor­ma­tion manip­u­lat­ing activ­i­ties¹ that gives pur­pose to their use, one is faced with an infor­ma­tion sys­tem as an object of study.

Tak­ing into account the sen­si­tiv­ity of the infor­ma­tion con­tained in the data­bases and the pur­poses that their users have in mind when manip­u­lat­ing the data, we get an inter­est­ing sys­tem to develop inquiry in the con­text of infor­ma­tion sys­tems secu­rity.

Although the research may take dif­fer­ent forms and assume dif­fer­ent goals, the use of national DNA data­bases is nor­mally framed by a set of leg­isla­tive ini­tia­tives that aim to spec­ify their pur­poses of use and the para­me­ters for their oper­a­tion, main­te­nance, and man­age­ment. Hence, leg­is­la­tion is usu­ally the first delib­er­ate step Gov­ern­ments take in order to cre­ate such arti­facts, and as such leg­is­la­tion deter­mines and delim­its sub­se­quent tac­ti­cal or oper­a­tional deci­sions regard­ing the use of the data­bases.

From an infor­ma­tion sys­tems secu­rity per­spec­tive, we can say that leg­is­la­tion plays the role of a reg­u­la­tory con­trol, that sub­se­quently informs the selec­tion of any infor­mal, for­mal, or tech­ni­cal con­trols deemed nec­es­sary to pro­tect the infor­ma­tion manip­u­lated in the con­text of DNA data­bases.

The pur­pose of this paper is to ana­lyze the leg­is­la­tion that was pro­duced in order to estab­lish a spe­cific DNA data­base and to dis­cuss its fea­tures and impli­ca­tions from an infor­ma­tion sys­tems secu­rity stand­point. The con­text selected for analy­sis was the Por­tuguese DNA pro­files data­base.

The paper is orga­nized as fol­lows. After this intro­duc­tion, the fol­low­ing sec­tion con­ducts a brief overview of DNA foren­sic data­bases in the world. Then, in Sec­tion 3, the the­o­ret­i­cal and method­olog­i­cal approaches are described. The cen­tral part of the paper fol­lows, with the analy­sis of the Por­tuguese leg­is­la­tion on DNA pro­files data­base and the dis­cus­sion of the find­ings. In the final sec­tion the con­clu­sions of the paper are pre­sented and future work oppor­tu­ni­ties are iden­ti­fied.

2. Overview of DNA Forensic Databases

The Eng­lish police started to use the tech­niques of DNA pro­fil­ing reported by Jef­freys in the con­text of crim­i­nal inves­ti­ga­tion in 1985 [Wal­ter and Cram 1990].

On 10 April 1995, the first oper­at­ing national DNA foren­sic data­base was estab­lished in Eng­land and Wales. Four years later, this data­base con­tained over 700,000 pro­files and achieved around 700 DNA matches each week [Mar­tin et al. 2001]. Since then, this data­base has been con­stantly grow­ing, hav­ing reached 4,856,902 pro­files and 354,132 stains in Decem­ber 2009 [ENFSI 2010].

Fol­low­ing the exam­ple of Eng­land and Wales, sev­eral coun­tries have devel­oped foren­sic DNA data­bases, such as Scot­land, New Zealand, the Nether­lands, Aus­tria, USA, Ger­many, Slove­nia, France, Fin­land, Nor­way, Bel­gium, Canada, Den­mark, Switzer­land, Swe­den, Croa­tia, Bul­garia, Lithua­nia, Spain, and Por­tu­gal.

These data­bases dif­fer in terms of con­tent admis­si­ble to entry them (sam­ples, pro­files, etc.) as well as size. Prob­a­bly, the largest DNA data­base in the world is main­tained by the USA, hold­ing over 6.5 mil­lion records of offender pro­files and approx­i­mately 250 thou­sand records of foren­sic pro­files in the National DNA Index Sys­tem, as Decem­ber 2008 [USDJ 2008]. Table 1 dis­plays sta­tis­tics for DNA data­bases main­tained by some coun­tries (the sources of the data were ENFSI [2010] and USDJ [2008]). Col­umn “Matches” pro­vides an indi­ca­tion of the num­ber of hits between DNA pro­files dis­cov­ered by a data­base search.

Table 1: DNA Data­bases Sta­tis­tics

In order to store and com­pare DNA pro­files, as well as to per­form other func­tions, sev­eral soft­ware pro­grams, com­monly called DNA-data­base soft­ware, have been designed. These pro­grams can be inter­nally devel­oped by a coun­try to meet its own par­tic­u­lar needs or they can be obtained from a pro­ducer.

Exam­ples of DNA-data­base pro­grams that can be obtained with­out cost are CODIS, which has been devel­oped by the FBI, and STR-lab, a pro­gram devel­oped in South-Africa [ENFSI 2010].

Pro­grams which are or have been avail­able in a com­mer­cial base are: FSS-iDTM, of the Foren­sic Sci­ence Ser­vice in the UK; Dimen­sions, of the Aus­trian com­pany Yssel­bach Secu­rity Sys­tems; eQMS::DNA, of the Hun­gar­ian com­pany Par­dus, and fDMS-STRdb, dis­trib­uted by the Czech Repub­lic com­pany Foren­sic DNA Ser­vice [ENFSI 2010].

Table 2 shows which DNA-data­base pro­grams are in use by dif­fer­ent coun­tries (the sources of the data were [ENFSI 2010] and [USDJ 2008]).

Table 2: DNA Data­base Soft­ware in Use

3. Theoretical and Methodological Approaches

As pre­vi­ously stated, the pur­pose of this paper is to ana­lyze the leg­is­la­tion that was pro­duced in order to estab­lish the Por­tuguese DNA data­base and to dis­cuss its fea­tures and impli­ca­tions from an infor­ma­tion sys­tems secu­rity per­spec­tive.

After the delim­i­ta­tion of the study’s con­text—Por­tuguese leg­is­la­tion—the next main deci­sion is to select the the­o­ret­i­cal and method­olog­i­cal approaches that may guide the analy­sis of data and the syn­the­sis of find­ings. Since the data to be ana­lyzed in this paper are pub­lic legal doc­u­ments related to the Por­tuguese DNA data­base, one may con­sider diverse modes of con­tent analy­sis applic­a­ble to writ­ten doc­u­ments, such as tech­niques that pro­ceed from a pre­vi­ously estab­lished scheme of cat­e­gories to those that build that scheme as the analy­sis evolves, a la grounded the­ory.

In this paper, the selected approach that guided the analy­sis of the leg­is­la­tion was the The­ory of Action. To the best of our knowl­edge, the appli­ca­tion of The­ory of Action to leg­is­la­tion in the domain of infor­ma­tion sys­tems secu­rity con­sti­tutes a propo­si­tion of a novel approach to the inter­pre­ta­tion of writ­ten data and, specif­i­cally, to make sense of infor­ma­tion secu­rity leg­isla­tive con­trols. In de Sá-Soares [2005], The­ory of Action was applied to the analy­sis of infor­ma­tion secu­rity stan­dards, infor­ma­tion secu­rity poli­cies, and user behav­iors in the realm of infor­ma­tion sys­tems secu­rity. In this paper, it is sug­gested that the same approach may be use­ful not only for guid­ing data analy­sis pro­ce­dures on leg­is­la­tion, but also to ground and inter­pret the find­ings result­ing from that analy­sis. The prac­ti­cal demon­stra­tion of this propo­si­tion may be under­stood as an addi­tional aim of this paper.

In order to sus­tain the propo­si­tion advanced above, a brief descrip­tion of The­ory of Action will be pre­sented, fol­lowed by the enun­ci­a­tion of the moti­va­tions and expected ben­e­fits of The­ory of Action appli­ca­tion to leg­is­la­tion in the field of infor­ma­tion sys­tems secu­rity.

The fun­da­men­tal assump­tion of The­ory of Action is that human beings hold the­o­ries or men­tal schemes that they use to design their actions [Argyris and Schön 1974].

Accord­ing to this The­ory, indi­vid­u­als develop and main­tain the­o­ries of action with the assump­tion that they con­sist in the­o­ries about how to act effec­tively [Argyris 1982]. This effec­tive­ness is per­ceived as the degree that con­se­quences intended by an indi­vid­ual when doing cer­tain action mate­ri­al­ize in prac­tice.

The­ory of Action rec­og­nizes two kinds of the­o­ries of action: espoused the­o­ries and the­o­ries-in-use. Espoused the­o­ries are those that peo­ple claim to fol­low when design­ing their actions. The­o­ries-in-use are those that peo­ple really use when design­ing their actions. The lat­ter the­o­ries causally explain the action that is observed [Argyris 1996].

It should be noted that the dif­fer­ence between these two kinds of the­o­ries is not found in the dis­tinc­tion between what peo­ple say that should be done and what peo­ple really do. Both the­o­ries are at the same level, con­sist­ing in the­o­ries about action; how­ever, the­o­ries-in-use should not be con­fused with con­crete action. In fact, The­ory of Action advises the study of behav­ior, not for its own inter­est, but for being the means that allows the infer­ence of the­o­ries-in-use [Argyris and Schön 1974].

Method­olog­i­cally, the pro­ce­dures for ana­lyz­ing data (in the present case legal texts) should fol­low the tenets of The­ory of Action for the rep­re­sen­ta­tion of espoused the­o­ries and the­o­ries-in-use, which may be mod­eled accord­ing to the con­struc­tion illus­trated in Fig­ure 1.

Fig­ure 1: Generic Model of The­o­ries of Action
Adapted from Argyris et al. [1985, p. 84]

This rep­re­sen­ta­tion is des­ig­nated by action map and schema­tizes the com­po­nents of a the­ory of action: gov­ern­ing vari­ables—the val­ues that an indi­vid­ual tries to sat­isfy, action strate­gies—under­stood as the means that lead to the sat­is­fac­tion of those val­ues, and con­se­quences—the results of the actions under­taken [Argyris 1993].

Action maps are usu­ally built in two phases. The first con­sists in the iden­ti­fi­ca­tion of the action map’s com­po­nents and the sec­ond involves the order­ing of each com­po­nent accord­ing to the role it plays in the the­ory of action.

Another impor­tant con­cept of The­ory of Action is that of action­abil­ity. This con­cept deals with the prob­lem­atic of cre­at­ing or pro­duc­ing in prac­tice what one rec­om­mends or defends. The goal is to cre­ate knowl­edge, for instance in the form of propo­si­tions or rec­om­men­da­tions, that enables the design of actions that pro­duce the intended con­se­quences.

In order to be action­able, it is nec­es­sary that rec­om­men­da­tions stip­u­late the sequence of action strate­gies required to pro­duce the intended con­se­quences, be artic­u­lated in ways that make the causal­ity trans­par­ent, spec­ify the val­ues that under­lie and gov­ern them, and that their embed­ded causal­ity is testable in the daily con­text of prac­tice [Argyris 2000, p. 239]. This means that rec­om­men­da­tions should con­sti­tute a the­ory of action.

Although The­ory of Action has been used to guide inquiry that focuses on indi­vid­ual or orga­ni­za­tional behav­ior, in this paper it is sug­gested an exten­sion of its use to leg­is­la­tion. The ratio­nal under­ly­ing this sug­ges­tion is that legal texts can be inter­preted as doc­u­ments that enclose espoused the­o­ries related to a spe­cific area of action, in the present case the cre­ation, use, main­te­nance, and man­age­ment of DNA data­bases. Hence, the action maps asso­ci­ated with those texts will con­vey the explicit espoused the­o­ries of the leg­is­la­tor, in other words, the schema for the actions the leg­is­la­tor is try­ing to spec­ify via the legal doc­u­ments.

It should be stressed that the tech­nique of doc­u­ment analy­sis to be applied needs to restrict itself to what is stated in the doc­u­ments, avoid­ing infer­ences not clearly and fully sup­ported by what is exposed in the legal texts. This is not only impor­tant for the rigor of analy­sis, but it also derives from the fact that a legal text, although poten­tially ambigu­ous as any non-math­e­mat­i­cal text, should con­vey what it means.

From a the­o­ret­i­cal point of view, a moti­va­tion for the use of The­ory of Action on leg­is­la­tion results from its capac­ity to make explicit the causal­ity embed­ded in legal texts. By focus­ing on the iden­ti­fi­ca­tion of the objec­tives being aimed by the leg­is­la­tion (the gov­ern­ing vari­ables), the means allowed or not allowed to be under­taken in order to attain those objec­tives (the action strate­gies), the expected effects of enact­ing those means (the con­se­quences), and on clar­i­fy­ing how these three con­structs are inter­con­nected, The­ory of Action may prove use­ful in demon­strat­ing the sound­ness of the ratio­nal under­ly­ing a par­tic­u­lar piece of leg­is­la­tion. This closely relates to the above con­cept of action­abil­ity. By apply­ing crit­i­cal thought to the action map rep­re­sent­ing the espoused the­ory of a leg­isla­tive con­trol, we may be able to start dis­cussing and antic­i­pat­ing poten­tial dif­fi­cul­ties in its obser­vance or enforce­ment, really plac­ing the reflec­tion on its infor­ma­tion secu­rity action­abil­ity.

Con­sid­er­ing that any enacted law imposes a set of con­trols on the object of the leg­is­la­tion (the DNA data­base, in this case), it should be noted that the legal texts to be ana­lyzed as enc­los­ing espoused the­o­ries, in prac­tice, should also enclose the­o­ries-in-use. Actu­ally, due to the manda­tory nature of leg­isla­tive con­trols, it is expected that the espoused the­ory con­veyed by the law at the time of its pub­li­ca­tion will be trans­formed in a the­ory-in-use once the law is in effect. In other words, the legal doc­u­ments con­sist of designs for action whose authors expect to per­fectly explain the actions that are sub­se­quently observed—the pub­li­ca­tion of a law is accom­pa­nied by the sup­po­si­tion that its pro­vi­sions will be observed. Hence, The­ory of Action may also prove use­ful in the study of the com­pli­ance of leg­isla­tive con­trols.

Armed with the action map of the law that con­veys the respec­tive espoused the­ory (and that will be the focus of this paper), the appli­ca­tion of The­ory of Action to the real actions that fol­low the enforce­ment of the law allows the infer­ence of the cor­re­spond­ing the­ory-in-use. With these two actions maps—of the espoused the­ory that results from the legal text and of the the­ory-in-use that emanates from the spe­cific actions of the agents in the realm of DNA data­base cre­ation, use, main­te­nance, and man­age­ment—we will have the instru­ments to com­pare both the­o­ries. Any dif­fer­ences between that claimed the­ory and the the­ory revealed by the appli­ca­tion of the law should be closely scru­ti­nized, since it may point to dif­fer­ent gov­ern­ing vari­ables try­ing to be met in prac­tice, to unan­tic­i­pated con­se­quences, to mis­un­der­stand­ings in the action strate­gies to be exe­cuted, or to vio­la­tions of the legal pro­vi­sions, to name a few. This com­par­i­son may uncover issues that explain the effec­tive­ness (or the lack of effec­tive­ness) of par­tic­u­lar leg­is­la­tion.

4. Portuguese DNA Profiles Database

The analy­sis of the Por­tuguese leg­is­la­tion on DNA pro­files data­base pro­ceeds in two phases. The first phase involves the analy­sis of the legal back­ground. This analy­sis pro­vides the con­text for under­stand­ing the work per­formed in the sec­ond phase, which cor­re­sponds to the review of the leg­isla­tive process and to the analy­sis of its main results in the form of legal doc­u­ments.

4.1 Legal Background

The con­sid­er­a­tion of the legal back­ground of the Por­tuguese leg­isla­tive process embraces two sets of doc­u­ments regard­ing DNA pro­fil­ing, fun­da­men­tal rights, and genetic related leg­is­la­tion: those that emanate from the Euro­pean Union (Por­tu­gal is an Euro­pean Union Mem­ber State since 1986) and those that are in effect result­ing from domes­tic leg­isla­tive delib­er­a­tions. In this sec­tion, these two sets of doc­u­ments are con­sid­ered suc­ces­sively.

4.1.1 The European Union Arena

In the Euro­pean Union arena there are three doc­u­ments related to DNA pro­fil­ing that have a direct impact on Mem­ber States’ leg­is­la­tion.

The first doc­u­ment was issued in 1992 and focuses the use of DNA analy­sis in the realm of crim­i­nal jus­tice [CE 1992].

The sec­ond and third doc­u­ments were issued in 1997 and 2001, respec­tively, and both focus the exchange of DNA analy­sis results [CEU 1997, 2001]. These doc­u­ments are ana­lyzed below.²

Rec­om­men­da­tion No. R (92) 1

Rec­om­men­da­tion No. R (92) 1 was issued by the Com­mit­tee of Min­is­ters to Mem­ber States on 10 Feb­ru­ary 1992. This non-bind­ing act of the Com­mit­tee was on the use of analy­sis of DNA within the Euro­pean frame­work of the Crim­i­nal Jus­tice Sys­tem.

The action map of the Rec­om­men­da­tion is pre­sented in Table 3.

Table 3: Action Map of Rec­om­men­da­tion No. R (92) 1

Although Rec­om­men­da­tions are with­out legal force, they are nego­ti­ated and voted, which means they have polit­i­cal weight. This Rec­om­men­da­tion may be under­stood as an instru­ment of indi­rect action for the use of DNA analy­sis by Mem­ber States.

Res­o­lu­tion 97/C 193/02

Res­o­lu­tion 97/C 193/02 was issued by the Coun­cil of Europe on 9 June 1997. The aim of this deci­sion was to enable the exchange of DNA analy­sis results between Mem­ber States.

The action map of the Res­o­lu­tion is pre­sented in Table 4.

Table 4: Action Map of Res­o­lu­tion 97/C 193/02

Res­o­lu­tion 2001/C 187/01

Res­o­lu­tion 2001/C 187/01 was issued by the Coun­cil of Europe on 25 June 2001. As with the pre­vi­ous Res­o­lu­tion, the objec­tive of this doc­u­ment was to enable the exchange of DNA analy­sis results between Mem­ber States.

The action map of the Res­o­lu­tion is pre­sented in Table 5.

The inte­grated analy­sis of these three action maps shows that the Euro­pean Union pro­ceeded into two stages in what con­cerns DNA pro­fil­ing. First, it sug­gested Mem­ber States to con­sider the use of DNA analy­sis in the field of crim­i­nal jus­tice. Sec­ond, it urged Mem­ber States to exchange DNA analy­sis results and to stan­dard­ize pro­ce­dures and data­bases.

In issu­ing these legal doc­u­ments, the Euro­pean Union sub­jected their intents to the sat­is­fac­tion of the fol­low­ing objec­tives: respect the dig­nity of the indi­vid­ual (jus­ti­fied given the need to col­lect indi­vid­ual body sam­ples), improve­ment of crim­i­nal jus­tice sys­tem (the active objec­tive which sat­is­fac­tion could not put in dan­ger the pro­por­tion­al­ity of inves­ti­ga­tion mech­a­nisms and the rights of the defense), the restric­tion of the use of DNA sam­ples and infor­ma­tion to the stated pur­poses (the demar­ca­tion objec­tive), the pro­tec­tion of per­sonal data (given that all data manip­u­lated are related to the indi­vid­ual), the acknowl­edg­ment of mul­ti­ple nature of the phe­nom­e­non (it sum­mons tech­ni­cal, legal, polit­i­cal, and eth­i­cal issues), and the har­mo­niza­tion of pro­ce­dures.

Table 5: Action Map of Res­o­lu­tion 2001/C 187/01

In order to sat­isfy these goals, the doc­u­ments stress five major types of actions: those that are con­cerned with the qual­ity and reli­a­bil­ity of DNA analy­sis tech­ni­cal pro­ce­dures, those that enable the stan­dard­iza­tion of pro­ce­dures between Mem­ber States, those related to infor­ma­tion secu­rity (these include pri­vacy pro­tec­tion actions and are applic­a­ble to sam­ples, pro­files, and per­sonal data), those that specif­i­cally aim the exchange of DNA analy­sis results, in com­ple­ment with actions that make more agile this exchange of results between Mem­ber States.

The doc­u­ments are explicit in what con­cerns the expected con­se­quences of under­tak­ing these actions: an improved crim­i­nal inves­ti­ga­tion; a simul­ta­ne­ously effi­cient, sys­tem­atic, and con­trolled com­bat against crime; and reli­able DNA analy­sis tech­niques employed by all Mem­ber States.

4.1.2 The Constitution of the Portuguese Republic

The Con­sti­tu­tion of the Por­tuguese Repub­lic dates from 1976 and its most recent revi­sion was made in 2005 [CRP 2005].

There are sev­eral arti­cles in the Con­sti­tu­tion that set the back­ground for the cre­ation of a DNA pro­files data­base. Some of these arti­cles con­vey fun­da­men­tal per­spec­tives on cit­i­zens’ rights and life in soci­ety; oth­ers are specif­i­cally con­cerned with the use of com­put­ers and genet­ics. The most rel­e­vant arti­cles of the Con­sti­tu­tion for the pur­poses of the cur­rent analy­sis are arti­cles 1–“Por­tuguese Repub­lic”, 25–“Right to per­sonal integrity”, 26–“Other per­sonal rights”, 32–“Safe­guards in crim­i­nal pro­ceed­ings”, and 35–“Use of com­put­ers”.

The pro­vi­sions of these arti­cles that are per­ti­nent to the sub­ject of DNA pro­fil­ing are trans­mit­ted in the action map of Table 6 (for bet­ter ref­er­ence the iden­ti­fi­ca­tion of the arti­cles was included).

Table 6: Par­tial Action Map of the Con­sti­tu­tion of the Por­tuguese Repub­lic

These action strate­gies high­light the impor­tance of the dig­nity of the human per­son, the invi­o­lable qual­ity of per­sonal integrity, the guar­an­tees that assist the indi­vid­ual in the realm of crim­i­nal processes, the fun­da­men­tal right of a per­son to per­sonal iden­tity (includ­ing the genetic iden­tity), the need for pro­tect­ing peo­ple against pro­cure­ment and mis­use of infor­ma­tion, and the pro­tec­tion of per­sonal data,³ with a spe­cial empha­sis on com­puter-based data pro­cess­ing.

4.1.3 Law n. 12/2005

Law n. 12/2005 was pub­lished on 26 Jan­u­ary 2005 and is titled “Per­sonal genetic infor­ma­tion and health infor­ma­tion”.

The arti­cles found to be rel­e­vant for the pur­poses of this paper were arti­cles 6 (num­ber 1)–“Genetic infor­ma­tion”, 7–“Genetic data­bases”, and 19–“Banks of DNA and other bio­log­i­cal prod­ucts”.

The pro­vi­sions of these arti­cles per­ti­nent to DNA pro­fil­ing are trans­mit­ted in the action map of Table 7 (for bet­ter ref­er­ence the iden­ti­fi­ca­tion of the arti­cles was included).

Table 7: Par­tial Action Map of Law n. 12/2005

These action strate­gies are rel­e­vant since this Law pre­dates the Por­tuguese law on DNA Pro­files data­base by three years and it advances a set of impor­tant def­i­n­i­tions and pro­ce­dures on genetic infor­ma­tion and genetic mate­r­ial banks.

4.2 The Legislative Process

In this sec­tion the leg­isla­tive process that led to the pub­li­ca­tion of the Por­tuguese act on DNA pro­files data­base is reviewed. The first doc­u­ment that should be ana­lyzed is the Pro­gramme of the XVII Con­sti­tu­tional Gov­ern­ment [PCM 2005] since it con­veys the polit­i­cal deci­sion for estab­lish­ing the data­base.

Pro­gramme of the XVII Con­sti­tu­tional Gov­ern­ment

The Pro­gramme of the XVII Con­sti­tu­tional Gov­ern­ment was issued by the Pres­i­dency of the Coun­cil of Min­is­ters of Por­tu­gal on 24 March 2005 for the leg­isla­tive period of 2005 to 2009. In sec­tion “II–Jus­tice” of “Chap­ter IV–Qual­ity of Democ­racy, Cit­i­zen­ship, Jus­tice, and Secu­rity”, point 6, titled “Make more effec­tive the com­bat of crime and penal jus­tice, respect­ing defense guar­an­tees”, reads

“To improve crim­i­nal inves­ti­ga­tion, it will be per­fected the Inte­grated Sys­tem of Crim­i­nal Infor­ma­tion [bold in orig­i­nal] and it will be estab­lished inter­con­nec­tions between appro­pri­ate pub­lic data­bases. Besides, it will be cre­ated a gen­eral base of genetic date for pur­poses of civil iden­ti­fi­ca­tion, which will equally serve pur­poses of crim­i­nal inves­ti­ga­tion [bold in orig­i­nal] (assur­ing that its cus­tody will not be due to an organ of crim­i­nal police).”

This dis­po­si­tion may be trans­lated in the fol­low­ing action map (cf. Table 8).

Table 8: Par­tial Action Map of Gov­ern­ment’s Pro­gramme

The Gov­ern­ment’s Pro­gramme set the polit­i­cal back­ground for the cre­ation of the Por­tuguese DNA pro­files data­base. The doc­u­ment that actu­ally ini­ti­ated the leg­isla­tive process was Order (extract) n. 2584/2006 [DR 2006]. In the sequence of this doc­u­ment, a series of ini­tia­tives took place, as depicted in Table 9.

Besides Order (extract) n. 2584/2006, the other legal doc­u­ments that will be ana­lyzed are Law n. 5/2008 (the cen­tral leg­isla­tive doc­u­ment) [DR 2008a], Delib­er­a­tion n. 3191/2008 [DR 2008b], Res­o­lu­tion of Par­lia­ment n. 14/2009 [DR 2009a], and Order n. 270/2009 [DR 2009b]. These four doc­u­ments con­sti­tute the Por­tuguese legal frame­work for the cre­ation, use, main­te­nance, and man­age­ment of the DNA pro­files data­base.

Order (extract) n. 2584/2006

The Order (extract) n. 2584/2006 was issued by the Min­is­ter of Jus­tice on 19 Jan­u­ary 2006. The text of the doc­u­ment starts by high­light­ing the impor­tance of genetic to the jus­tice sys­tem. It con­tin­ues by argu­ing the use­ful­ness of cross­ing iden­tity data to sup­port civil iden­ti­fi­ca­tion and crim­i­nal inves­ti­ga­tion, as long as fun­da­men­tal rights are pro­tected. This pro­tec­tion is elab­o­rated by acknowl­edg­ing as unques­tion­able assump­tions the safe­guard of the “total con­fi­den­tial­ity” of per­sonal data, the inde­pen­dence in the use of infor­ma­tion and the respect for cit­i­zens’ rights, free­doms, and guar­an­tees. The doc­u­ment pro­ceeds by stress­ing the guid­ing nature of sev­eral texts, specif­i­cally those emanated from the Euro­pean Union (cf. sec­tion 4.1.1—The Euro­pean Union Arena). Then, ful­fill­ing what was estab­lished in the Pro­gram of Gov­ern­ment, and in order to elab­o­rate a pro­posal for the cre­ation and oper­a­tion of a genetic data­base for pur­poses of civil iden­ti­fi­ca­tion and crim­i­nal inves­ti­ga­tion that safe­guards the con­sti­tu­tional prin­ci­ples, it appoints a com­mit­tee to present the leg­isla­tive pro­posed until the end of year 2006.

Table 9: Time­line of the Leg­isla­tive Process

Law n. 5/2008

Law n. 5/2008—“Approves the cre­ation of a DNA pro­files data­base for pur­poses of civil and crim­i­nal iden­ti­fi­ca­tion” was pub­lished in Diário da República on 12 Feb­ru­ary 2008 [DR 2008a].

The text of the Law con­sists of 41 arti­cles orga­nized into eight chap­ters, titled: (I) Gen­eral Pro­vi­sions, (II) Col­lec­tion of Sam­ples, (III) Data Pro­cess­ing, (IV) Con­selho de Fis­cal­iza­ção of DNA Pro­files Data­base, (V) Biobank, (VI) Penalty Pro­vi­sions, and (VIII) Final and Tran­si­tional Pro­vi­sions. Chap­ter III (Data Pro­cess­ing) was fur­ther divided into four sec­tions, namely (i) Con­sti­tu­tion of Data­base, (ii) Inser­tion, Com­mu­ni­ca­tion, Inter­con­nec­tion, and Access to Data, (iii) Con­ser­va­tion of DNA Pro­files and Per­sonal Data, and (iv) Data­base Secu­rity.

The insti­tu­tional enti­ties that the Law iden­ti­fies as play­ing a direct role in the oper­a­tion, mon­i­tor­ing, and inspec­tion of the DNA pro­files data­base are Lab­o­ratório de Polí­cia Cien­tí­fica da Polí­cia Judi­ciária (LPCPJ),⁶ Insti­tuto Nacional de Med­i­c­ina Legal (INML),⁷ Con­selho de Fis­cal­iza­ção (CF),⁸ and Comis­são Nacional de Pro­tecção de Dados (CNPD).⁹

The Law assigns to LPCPJ and to INML the respon­si­bil­ity for extract­ing DNA pro­files from sam­ples at national level.

The DNA pro­files data­base will be phys­i­cally located at INML (in the city of Coim­bra), who will be respon­si­ble for the data­base, namely for the inser­tion, access, com­mu­ni­ca­tion, inter­con­nec­tion, and elim­i­na­tion of data con­tained in the DNA pro­files data­base; for assur­ing access to data by pro­filed peo­ple and for the update, cor­rec­tion, and mod­i­fi­ca­tion of data con­tained in the data­base.

INML will have to com­ply with an inter­nal reg­u­la­tion to be elab­o­rated by the Pres­i­dent of INML’s Medico-Legal Coun­cil and to be approved by Medico-Legal Coun­cil in six months after pub­li­ca­tion of the Law.

The con­ser­va­tion of the biobank, con­tain­ing the sam­ples, was also assigned to INML. How­ever, the Law allows the estab­lish­ment of pro­to­cols with other enti­ties as long as they are able to com­ply with stated secu­rity and con­fi­den­tial­ity require­ments, impend­ing on them the rules and lim­i­ta­tions set forth by the Law under analy­sis.

CF will be a new inde­pen­dent admin­is­tra­tive entity with author­ity pow­ers, appointed by the Par­lia­ment and that will report only to Par­lia­ment. Its main attri­bu­tion will be to con­trol DNA pro­files data­base and, con­comi­tantly the activ­ity of INML in the realm of DNA pro­fil­ing. This entity will be formed by three cit­i­zens of rec­og­nized capac­ity in full employ­ment of their civic and polit­i­cal rights and not per­tain­ing to other super­vi­sory coun­cils or com­mit­tees for a term of office of four years.

The legal statue of CF will be pub­lished in six months after pub­li­ca­tion of the Law under analy­sis. The head­quar­ters of CF will be in the city of Coim­bra and the human, admin­is­tra­tive, tech­ni­cal, and logis­tics resources needed for its oper­a­tion will be pro­vided by INML, through trans­fer of Par­lia­ment’s funds to INML. Among CF’s com­pe­tences there are the fol­low­ing: to autho­rize the prac­tice of cer­tain acts pre­scribed by Law, to emit opin­ion on DNA pro­files data­base reg­u­la­tion, to ask and get infor­ma­tion and clar­i­fi­ca­tions from INML in order to pros­e­cute its mis­sion, to make inspec­tion vis­its, to elab­o­rate reports to be pre­sented to the Par­lia­ment on the oper­a­tion of DNA pro­files data­base at least once per year, to com­mand INML’s Pres­i­dent to destroy sam­ples, to present sug­ges­tions of leg­isla­tive ini­tia­tives on DNA pro­files data­base, and to emit opin­ion on any sim­i­lar ongo­ing leg­isla­tive ini­tia­tive.

The respon­si­bil­i­ties assigned to CNPD regard the emis­sion of opin­ion on the list of DNA mark­ers to inte­grate in DNA pro­files files, pro­vi­sion of clar­i­fi­ca­tions on per­sonal data pro­cess­ing on INML’s request, emis­sion of opin­ion on the com­mu­ni­ca­tion of data con­tained in DNA pro­files data­base to other enti­ties for sta­tis­tics and sci­en­tific research pur­poses, the emis­sion of opin­ion on unfore­seen inter­con­nec­tion of data con­tained in DNA pro­files data­base, and the ver­i­fi­ca­tion of the oper­at­ing con­di­tions of the data­base as well as the stor­age con­di­tions of sam­ples in order to cer­tify the com­pli­ance with per­sonal data pro­tec­tion pro­vi­sions.

Arti­cle 2 of the Law pro­vides a set of def­i­n­i­tions in order to clar­ify con­cepts and expres­sions used on the leg­isla­tive text, namely for DNA, sam­ple, prob­lem-sam­ple, ref­er­ence-sam­ple, DNA marker, DNA pro­file, per­sonal data, sin­gu­lar iden­ti­fi­able per­son, DNA pro­files file, per­sonal data file, DNA pro­files data­base, biobank, and con­sent of pro­filed per­son.

Arti­cle 4 of the Law is titled “Pur­poses” and states that “DNA analy­sis uniquely serve civil iden­ti­fi­ca­tion and crim­i­nal inves­ti­ga­tion pur­poses” with the only excep­tion of using the infor­ma­tion for sta­tis­tics and sci­en­tific research pur­poses.

The Law’s action map is pre­sented in Table 10.

Table 10: Action Map of Law n. 5/2008

In what con­cerns the DNA pro­files data­base con­tents, the Law defines six types of files. Table 11 lists those files, as well as the sources that will pro­vide the sam­ples for DNA pro­fil­ing, the explicit pur­pose of the files, the require­ments that need to be observed when insert­ing data to the files, the con­ser­va­tion peri­ods for data con­tained in the files, and the tim­ing for destruc­tion of sam­ples that where used to extract DNA pro­files.

Table 11: Struc­ture of Por­tuguese DNA Pro­files Data­base

By con­sid­er­ing the inser­tion require­ments, con­ser­va­tion peri­ods, and destruc­tion of sam­ples, the table clearly define the infor­ma­tion life cycle of the data con­tained in the DNA data­base: in what sit­u­a­tions new data is cre­ated, for how long it should be with­held, and when to pro­ceed to the removal of DNA pro­files and per­sonal data, and to the destruc­tion of bio­log­i­cal sam­ples. Actu­ally, these cri­te­ria enclose a major part of the data­base infor­ma­tion man­age­ment tasks (the con­sid­er­a­tion of access rules would com­plete the spec­trum of those tasks).

Although not explic­itly stated, the pur­pose of file F is to clar­ify any sit­u­a­tion of sam­ples con­t­a­m­i­na­tion. In what con­cerns the pur­pose of file A the Law is silent. How­ever, this pur­pose can be dis­cov­ered when one con­sid­ers what parts of the DNA pro­files data­base are allowed to be inter­con­nected as estab­lished by the Law. The inter­con­nec­tions are indi­cated in Table 12. The rows and columns refer to the six types of files that con­sti­tute the DNA pro­files data­base (the inter­con­nec­tions allowed should be found out by read­ing the table from rows to columns).

Table 12: Allowed Inter­con­nec­tions between DNA Pro­files Data­base Files

Based on this Table, one can con­clude that file A—“Vol­un­teers” can be used for pur­poses of civil iden­ti­fi­ca­tion and crim­i­nal inves­ti­ga­tion.

The action strate­gies con­cern­ing the sat­is­fac­tion of the gov­ern­ing vari­able “Secu­rity of iden­tity ele­ments” were orga­nized into two sets: data­base secu­rity action strate­gies and biobank secu­rity action strate­gies.

The data­base secu­rity action strate­gies are espoused in the Law under two head­ings: infor­ma­tion secu­rity and secrecy duty, as pre­sented below:

• Infor­ma­tion secu­rity

  • Seg­re­gate log­i­cally and phys­i­cally DNA pro­files from cor­re­spond­ing per­sonal data

  • For­bid iden­tity ele­ments of pro­filed per­son on DNA pro­files file

  • For­bid searches of DNA pro­files file by name

  • Pre­vent unau­tho­rized con­sul­ta­tion, mod­i­fi­ca­tion, sup­pres­sion, addi­tion, destruc­tion, or com­mu­ni­ca­tion of data con­tained in DNA data­base

  • Pre­vent unau­tho­rized read­ing, dis­clo­sure, copy, alter­ation, or elim­i­na­tion of data sup­ports and unau­tho­rized trans­porta­tion of data sup­ports

  • Pre­vent unau­tho­rized intro­duc­tion, acknowl­edge, dis­clo­sure, alter­ation, or elim­i­na­tion of per­sonal data

  • Pre­vent the use of data pro­cess­ing sys­tems by unau­tho­rized per­son­nel

  • Restrict per­son­nel access to data to the exer­cise of their legal attri­bu­tions

  • Restrict data trans­mis­sion to autho­rized author­i­ties

  • Log per­sonal data inser­tion in data pro­cess­ing sys­tems in terms of what was inserted, when, and by whom

  • Sub­ject the prac­tice of col­lec­tion and analy­sis of DNA sam­ples and of other sim­i­lar func­tions that pre­sup­poses direct con­tact with genetic data sup­port to secur­ing free, informed, and writ­ten con­sent from those pro­fes­sion­als

• Secrecy duty

  • Restrict the com­mu­ni­ca­tion and dis­clo­sure of DNA pro­files and per­sonal data con­tained in the data­base to the terms estab­lished in this Law and in com­pli­ance with the Per­sonal Data Pro­tec­tion Law

  • Bind sam­ples col­lec­tors, pro­fes­sion­als involved in obtain­ing DNA pro­files, per­son­nel respon­si­ble for the inser­tion, com­mu­ni­ca­tion, inter­con­nec­tion, and access to DNA pro­files or per­sonal data files, and CF mem­bers to pro­fes­sional secrecy, even after they cease their pro­fes­sional func­tions or after term of office, respec­tively

  • Pun­ish those who dis­close infor­ma­tion con­tained in DNA pro­files data­base under Penal Code and Per­sonal Data Pro­tec­tion Law

  • Pun­ish vio­la­tions of per­sonal data pro­tec­tion norms under Per­sonal Data Pro­tec­tion Law

The biobank secu­rity action strate­gies made explicit by the Law are the fol­low­ing:

• Pre­vent imme­di­ate iden­ti­fi­ca­tion of per­son from sam­ple

• Pre­vent unau­tho­rized peo­ple to access biobank facil­i­ties

• Store sam­ples cor­rectly, safely, and securely

• Cor­rectly and securely trans­port sam­ples to INML

• Restrict access to lab­o­ra­to­ries and stor­age premises of sam­ples to spe­cial­ized per­son­nel, upon coded iden­ti­fi­ca­tion and pre­vi­ous autho­riza­tion by the per­son in charge of the ser­vice

From this set of action strate­gies con­nected to the secu­rity of the DNA data­base, one may con­clude that the Por­tuguese data­base will com­prise three autonomous repos­i­to­ries. One will hold the DNA pro­files (this repos­i­tory in turn com­prises the six files described in Table 11), other the per­sonal data, and the third the bio­log­i­cal sam­ples (the biobank). This sug­gests that the expres­sion “DNA Pro­files Data­base” (as it is used in the title of Law n. 5/2008 and in its arti­cles) might not be a rig­or­ous des­ig­na­tion for encom­pass­ing the dif­fer­ent kinds of infor­ma­tion main­tained in the data­base.

Still in what con­cerns the secure data­base action strate­gies it is pos­si­ble to rec­og­nize safe­guards that tar­get instal­la­tions and areas, media (data sup­ports), equip­ment (data pro­cess­ing sys­tems), infor­ma­tion, per­son­nel, and infor­ma­tion manip­u­lat­ing activ­i­ties, namely the ones related to infor­ma­tion inser­tion, trans­porta­tion, trans­mis­sion, removal, and destruc­tion.

Con­sid­er­ing the action map of the Law (cf. Table 10) it is evi­dent that the text does not state any con­se­quences for the exe­cu­tion of the action strate­gies that pro­poses. Although this is indeed the case, the Bill that orig­i­nated the Law included the iden­ti­fi­ca­tion of sev­eral con­se­quences. This iden­ti­fi­ca­tion was advanced in the Pre­am­ble of that Bill, a part that was dis­carded in the final edit­ing of the leg­isla­tive text.

Focus­ing the atten­tion on the other com­po­nents of the action map, it is pos­si­ble to con­clude that the improve­ment of civil iden­ti­fi­ca­tion and crim­i­nal inves­ti­ga­tion are the dom­i­nant objec­tives of the Law and the espoused rea­sons for it come into being. How­ever, they are not the sole val­ues that the leg­is­la­tor aimed to sat­isfy. These val­ues have to be fit­ted together with the respect for sev­eral con­sti­tu­tional rights, as well as with the assur­ance of sev­eral qual­i­ties of the iden­tity ele­ments main­tained in the data­base and manip­u­lated by com­bi­na­tions of peo­ple and equip­ment. Besides these val­ues, the action map points some lat­eral objec­tives that must be sat­is­fied, some for the sake of sci­ence, oth­ers for com­pli­ance with more global con­cerns, like the secu­rity of the State and the con­for­mity with the law.

In order to attain that set of goals, the action map cap­tured a list of action strate­gies. A lim­ited sub­set of these strate­gies directly tar­gets the active objec­tives of the Law. A sig­nif­i­cant sub­set deals with means for assur­ing the respect for con­sti­tu­tional rights. A small sub­set of other strate­gies exists for the sat­is­fac­tion of the pre­vi­ously referred global con­cerns. How­ever, it should be noted that there is a sig­nif­i­cant and diverse sub­set of action strate­gies that focuses the infor­ma­tion secu­rity of the data­base (under­stood at large, encom­pass­ing data, equip­ment, media, per­son­nel, and facil­i­ties con­trols). These action strate­gies play a fun­da­men­tal role in achiev­ing sev­eral of the action map’s gov­ern­ing vari­ables, namely the secu­rity of iden­tity ele­ments, the pro­tec­tion of per­sonal data, and the assur­ance of the authen­tic­ity, verac­ity, and qual­ity of iden­tity ele­ments, prin­ci­ples that authors like Parker [1998] and Dhillon and Back­house [200] have argued should be con­sid­ered along­side with the tra­di­tional infor­ma­tion secu­rity prin­ci­ples of con­fi­den­tial­ity, integrity, and avail­abil­ity. By act­ing directly on the achieve­ment of these objec­tives, infor­ma­tion secu­rity action strate­gies become enablers (nec­es­sary, although not suf­fi­cient) not only of the improve­ment of iden­ti­fi­ca­tion processes, but also for the preser­va­tion of fun­da­men­tal rights of peo­ple.

A sig­nif­i­cant part of the infor­ma­tion secu­rity action strate­gies con­veys rules for con­trol­ling access to the data by data­base pro­fes­sion­als, the judi­cial sys­tem, author­i­ties, pro­filed peo­ple, pro­filed peo­ple rel­a­tives, third par­ties, and for­eigner gov­ern­ments. Together with pro­vi­sions for insert­ing, main­tain­ing, remov­ing infor­ma­tion, and destroy­ing sam­ples, these action strate­gies estab­lish a pro­gram for the man­age­ment of the infor­ma­tion life cycle in the con­text of the DNA data­base.

Delib­er­a­tion n. 3191/2008

As estab­lished by Law n. 5 /2008, INML’s Medico-Legal Coun­cil should elab­o­rate and approve the Reg­u­la­tion of Oper­a­tion of DNA Pro­files Data­base. The date of approval of this doc­u­ment was 15 July 2008 and the pub­lish­ing date in Diário da República, as an INML’s Delib­er­a­tion, was 3 Decem­ber 2008 [DR 2008b].

The Reg­u­la­tion has 19 arti­cles and four annexes. The arti­cles are orga­nized into six chap­ters, titled (I) Gen­eral Pro­vi­sions, (II) Assump­tions to Obtain DNA Pro­files, (III) Per­form­ing Analy­ses, (IV) Removal of DNA Pro­files and Per­sonal Data, (V) Per­son­nel, and (VI) Final Pro­vi­sions.

The Delib­er­a­tion’s action map is pre­sented in Table 13.

Table 13: Action Map of Delib­er­a­tion n. 3191/2008

The action map shows that an impor­tant part of the pro­ce­dures con­cerns the pro­duc­tion of sev­eral doc­u­ments, accord­ing to a set of mod­els whose lay­out is pro­vided in the annexes of the Reg­u­la­tion.

As expected, the Reg­u­la­tion presents as its main gov­ern­ing vari­able the com­pli­ance with arti­cle 39 of Law n. 5/2008 that estab­lished the need to approve the reg­u­la­tion of oper­a­tion of DNA pro­files data­base. The other gov­ern­ing vari­ables espoused in the Delib­er­a­tion refer spe­cific val­ues that some of the espoused action strate­gies should sat­isfy.

The analy­sis of the action strate­gies sug­gests a set of pro­ce­dures that, to a cer­tain extent, repli­cate part of the action strate­gies con­tained in the action map of Law n. 5/2008. This is hardly sur­pris­ing, since the Reg­u­la­tion must be aligned with the pro­vi­sions of that Law.

Albeit a con­sid­er­able num­ber of the action strate­gies focuses the sam­ple col­lec­tion pro­ce­dures and in par­tic­u­lar the data record­ing aspects of those pro­ce­dures, the Reg­u­la­tion does not address spe­cific con­cerns with the infor­ma­tion secu­rity of the data­base. Although the Law pre­scribed an exten­sive set of action strate­gies aimed to secure the data­base, to pro­tect per­sonal data, and to pre­serve or improve the integrity of the iden­tity ele­ments, none of these action strate­gies were fur­ther devel­oped or detailed at the level of the Reg­u­la­tion. Actu­ally, aspects like the seg­re­ga­tion of the data­base con­tents, the pro­ce­dures for insert­ing data into the infor­ma­tion pro­cess­ing sys­tem that inter­faces with the data­base, the spec­i­fi­ca­tion of con­trols aimed to pre­serve the con­fi­den­tial­ity, integrity and avail­abil­ity of the data­base, the access con­trols that will medi­ate the use of infor­ma­tion con­tained in the data­base, the use of DNA-data­base soft­ware, the main­te­nance of the soft­ware, the com­mu­ni­ca­tions and oper­a­tions man­age­ment, and inci­dent han­dling are not addressed by the Reg­u­la­tion.

Appar­ently, the pro­vi­sion of mech­a­nisms and con­trols for assur­ing the secu­rity and func­tion­ing of the data­base from an infor­ma­tion sys­tems per­spec­tive was side­lined, and instead it was given pri­or­ity to the tech­ni­cal work under­taken by DNA col­lec­tors and ana­lysts. Of course, one might argue that a sub­stan­tial part of those mech­a­nisms and con­trols presents a sen­si­tive nature that goes against its pub­lic treat­ment. This could be the case, how­ever, it still there would be space for spec­i­fy­ing roles, respon­si­bil­i­ties, and gen­eral poli­cies that should guide the plan­ning, devel­op­ment, imple­men­ta­tion, and eval­u­a­tion of those mech­a­nisms and con­trols. Alter­na­tively, it is pos­si­ble that the authors of the Reg­u­la­tion left these con­cerns and pro­vi­sions to the pro­ce­dural man­ual on DNA pro­files data­base oper­at­ing tech­ni­cal rules to be elab­o­rated dur­ing the first year of oper­a­tion of the data­base. If this is the case, the trans­po­si­tion of the infor­ma­tion sys­tems require­ments spec­i­fied in the Law n. 5/2008 will be one more level fur­ther apart.

Res­o­lu­tion of Par­lia­ment n. 14/2009

In this Res­o­lu­tion, pub­lished in Diário da República on 13 March 2009, Por­tuguese Par­lia­ment des­ig­nated the three indi­vid­u­als that will com­pose DNA Pro­files Data­base CF.

Order n. 270/2009

This doc­u­ment, pub­lished in Diário da República on 17 March 2009, and signed by the Min­is­ter of Jus­tice and by the Min­is­ter of Health, pre­scribes the DNA mark­ers that will be inte­grated in the DNA pro­files files of the DNA Pro­files Data­base.

The DNA mark­ers were orga­nized into two cat­e­gories: manda­tory inser­tion mark­ers and com­ple­men­tary inser­tion mark­ers.

The action map of the Order is shown in Table 14.

Table 14: Action Map of Order n. 270/2009

The gov­ern­ing vari­ables of this action map, together with the con­se­quences advanced to the action strat­egy regard­ing the set­ting of com­ple­men­tary inser­tion DNA mark­ers, show two inter­est­ing char­ac­ter­is­tics. One is the clear inten­tion of com­pli­ance with Euro­pean Union res­o­lu­tions to facil­i­tate the exchange of DNA analy­sis results, an end that depends heav­ily on com­pat­i­bi­liza­tion efforts by Mem­ber States. The other is the con­cern with the effec­tive­ness of the DNA pro­files data­base, sug­gested by the goal of reduc­ing coin­ci­dences and the antic­i­pated con­se­quence of an increased dis­crim­i­na­tive capac­ity of the iden­ti­fi­ca­tion process.

In a cer­tain way, this leg­isla­tive doc­u­ment marks the point where the nec­es­sary con­di­tions for the oper­a­tion of the DNA pro­files data­base have been met. Since Law n. 5/2008 required the appoint­ment of CF and the approval of the Reg­u­la­tion, with these two last doc­u­ments the leg­isla­tive con­trols of the Por­tuguese DNA pro­files data­base are in place.

5. Conclusion

This paper has reviewed the main leg­isla­tive pieces that sup­port and reg­u­late the cre­ation, use, main­te­nance, and man­age­ment of the Por­tuguese DNA pro­files data­base.

The appli­ca­tion of The­ory of Action allowed the inter­pre­ta­tion of the legal doc­u­ments in terms of three cor­ner­stones: the explicit val­ues or objec­tives that the leg­is­la­tor aims to sat­isfy (the gov­ern­ing vari­ables), the means devised to achieve that sat­is­fac­tion (the action strate­gies), and, wher­ever iden­ti­fied, the expected out­comes of those means (the con­se­quences).

It is argued that The­ory of Action pro­vides an inter­est­ing approach to make sense of leg­is­la­tion and, con­sid­er­ing the par­tic­u­lar sub­ject of this paper, to ana­lyze and inter­pret leg­isla­tive con­trols in the domain of infor­ma­tion sys­tems secu­rity.

The action maps that were con­structed clar­ify the depen­dences between the ana­lyzed legal texts, mak­ing pos­si­ble to trace how pre­vi­ous and encom­pass­ing leg­is­la­tion, such as Euro­pean direc­tives, fun­da­men­tal con­sti­tu­tive text, and prior national acts, pro­vide the con­text for sub­se­quent leg­is­la­tion, con­di­tion­ing its for­mu­la­tion and guid­ing its align­ment in a web of legal texts.

Another find­ing was the mul­ti­ple objec­tives nature of the legal texts, namely the cen­tral one (Law n. 5/2008), some of them con­sist­ing of poten­tial con­flict­ing goals (such as the pur­pose of improv­ing crim­i­nal inves­ti­ga­tion and civil iden­ti­fi­ca­tion; the pur­pose of respect­ing fun­da­men­tal rights, free­doms, and guar­an­tees; and the pur­pose of pro­tect­ing per­sonal data) and the spe­cific pro­vi­sions estab­lished for their achieve­ment.

An addi­tional find­ing was that some of the doc­u­ments do not enclose a com­plete the­ory of action, since some of its com­po­nents are miss­ing, rais­ing the ques­tion of its action­abil­ity and sug­gest­ing the work­ing propo­si­tion that leg­is­la­tion may, indeed, con­sist of incom­plete the­o­ries of action.

This work sug­gests sev­eral oppor­tu­ni­ties for devel­op­ing fur­ther research on DNA pro­files data­bases. Three spe­cific oppor­tu­ni­ties are pre­sented below.

First, it would be impor­tant to study the prac­ti­cal con­se­quences of the appli­ca­tion of Law n. 5/2008, as well as any asso­ci­ated dif­fi­cul­ties or prob­lems. This would allow find­ing out if the espoused the­ory enclosed in the Law (one of the results of this paper) is con­gru­ent with the the­ory-in-use that its appli­ca­tion might led to infer. The appli­ca­tion of The­ory of Action in this post-leg­isla­tive pub­li­ca­tion study could pro­vide the means to link leg­is­la­tion and behav­ior. Besides the analy­sis of the prac­ti­cal con­se­quences, it would be impor­tant to mon­i­tor the evo­lu­tion of the leg­is­la­tion in order to ver­ify if new leg­isla­tive ini­tia­tives take place, so that any mod­i­fi­ca­tions of the espoused the­ory may be traced to adjust­ments in the action strate­gies (and to the causes of those adjust­ments) or in the gov­ern­ing vari­ables (prob­a­bly as evi­dence of exten­sions or restric­tions of stated pur­poses of the DNA pro­files data­base). This oppor­tu­nity is clearly related to the study of the action­abil­ity of the Law, i.e., the poten­tial that the ana­lyzed leg­isla­tive con­trols have to pro­duce in prac­tice what they pre­scribe in legal form.

A sec­ond oppor­tu­nity for future research would be to under­take an infor­ma­tion sys­tems secu­rity eval­u­a­tion of the use of the Por­tuguese DNA pro­files data­base. This exer­cise would revise how well the require­ments and pro­ce­dures pre­scribed by the law in terms of infor­ma­tion secu­rity were trans­lated and put in effect in prac­tice. This inquiry could prove use­ful in clar­i­fy­ing the trans­for­ma­tional process that takes place in order to trans­late the generic and even­tu­ally ambigu­ous secu­rity require­ments estab­lished by leg­is­la­tion into spe­cific tech­ni­cal, for­mal, and infor­mal secu­rity con­trols.

The third oppor­tu­nity for future work would be to apply the the­o­ret­i­cal and method­olog­i­cal approach selected for this study to ana­lyze equiv­a­lent leg­is­la­tion of other coun­tries that have imple­mented DNA data­bases. It is expected that the con­struc­tion of the respec­tive action maps, with the char­ac­ter­i­za­tion of the com­pe­tences and roles of the major play­ers in the oper­a­tion of the data­base and the iden­ti­fi­ca­tion of cri­te­ria for sam­ple col­lec­tion, reten­tion, and destruc­tion, and of cri­te­ria for inser­tion, access, con­ser­va­tion, removal, com­mu­ni­ca­tion, inter­con­nec­tion, and exchange of data in the data­base may pro­vide the oper­a­tional ele­ments required for the com­par­i­son of those dif­fer­ent leg­isla­tive con­trols. Even­tu­ally, these may allow clus­ter­ing coun­tries’ leg­is­la­tion on DNA data­bases in terms of pur­poses, pro­ce­dures, and expected ben­e­fits and costs.

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Endnotes

¹ Given the vol­ume of stored infor­ma­tion and the types of DNA pro­files pro­cess­ing func­tions, espe­cially the search oper­a­tions, the repos­i­to­ries of DNA pro­files and per­sonal data (sym­bolic data) nat­u­rally assume the form of an IT-arti­fact.

² A fourth doc­u­ment—Coun­cil Deci­sion 2008/616/JHA of 23 June 2008 [CEU 2008]—could also be con­sid­ered. This doc­u­ment, that has ori­gins in the Prüm Treaty or Con­ven­tion, includes pro­vi­sions on DNA pro­files, but since its approval was after the pub­li­ca­tion of the Por­tuguese law on DNA pro­files data­base, it will not be ana­lyzed in this paper.

³ Per­sonal data pro­tec­tion con­cerns and safe­guards are detailed in Law n. 67/98 of 26 Octo­ber 1998—“Per­sonal Data Pro­tec­tion Law” [DR 1998]. This Law trans­posed to Por­tuguese legal frame­work Direc­tive 95/46/EC of the Euro­pean Par­lia­ment and of the Coun­cil of 24 Octo­ber 1995 on the pro­tec­tion of indi­vid­u­als with regard to the pro­cess­ing of per­sonal data and on the free move­ment of such data.

⁴ Diário da República (Daily of the Repub­lic) is the offi­cial jour­nal of Por­tu­gal, where Laws, Decree-laws, deci­sions of the Con­sti­tu­tional Court, Reg­u­la­tions, pub­lic con­tracts, etc., are pub­lished.

⁵ This is a Par­lia­ment’s stand­ing com­mit­tee com­posed of 20 to 30 Mem­bers of the Par­lia­ment that has com­pe­tences on con­sti­tu­tional and insti­tu­tional affairs; human rights; jus­tice and prison related affairs; inter­nal affairs; Euro­pean space of free­dom, secu­rity and jus­tice; immi­gra­tion, inte­gra­tion poli­cies and inter­cul­tural dia­logue; and equal­ity of oppor­tu­ni­ties.

⁶ Sci­en­tific Police Lab­o­ra­tory of Judi­cial Police—http://www.poli­ci­a­ju­di­cia­ria.pt

⁷ National Insti­tute of Foren­sic Med­i­cine—http://www.inml.mj.pt

⁸ Coun­cil of Inspec­tion

⁹ Data Pro­tec­tion National Com­mis­sion—http://www.cnpd.pt

¹⁰ Under Por­tuguese Law, an arguido is a per­son who is sus­pect but has not been arrested, accused, or charged. The dec­la­ra­tion of arguido sta­tus can be done by the police or the per­son. Argui­dos have legal pro­tec­tion that does not apply to wit­nesses, such as the right to remain silent dur­ing ques­tion­ing and the right to legal rep­re­sen­ta­tion. A ten­ta­tive trans­la­tion of the term to Eng­lish is “named sus­pect” or “for­mal sus­pect”.

¹¹ A pub­lic insti­tute that exe­cutes and mon­i­tors poli­cies related to reg­is­tra­tion ser­vices (civil iden­ti­fi­ca­tion, civil reg­is­tra­tion, nation­al­ity reg­is­tra­tion, land reg­is­tra­tion, com­mer­cial reg­is­tra­tion, etc.).