Read the fine print

The genealogy website MyHeritage announced this week that it’s launching a new DNA matching service. Using raw DNA files from testing companies such as Family Tree DNA, AncestryDNA or 23andMe, and family tree files uploaded by its users, the company will match users to others in its database. (Update: MyHeritage has amended its terms of use — see the updated post here.)

And before you even think about doing this, make sure you understand the terms of use — and that you do NOT have to agree to the Consent Agreement to participate.

That warning has to come even before explaining what the service is here, because — the way the upload page is presented right now — it’s got a built-in “Gotcha!” that needs to be fixed even if the rest of the program is perfectly fine. The Legal Genealogist repeats: you do NOT have to agree to the Consent Agreement to participate.

I’ll explain what that is once we all understand what this matching service is all about.

The main benefit of the new MyHeritage matching service is that you’ll be able to combine the DNA matches with MyHeritage’s other matching technologies, such as Smart Matches™ and Record Matches, and, because of the size of MyHeritage’s international user base, potentially link up with more — or at least other — cousins to work with on your research.

As MyHeritage puts it, you can “review your matches’ family trees (excluding living people), and filter your matches by common surnames or geographies to focus on more relevant matches. This new technology will also enable you to prove and disprove other types of matches (such as Smart Matches™ and Record Matches) and connect with new relatives in order to collaborate. You’ll benefit from our vast international user base of 82 million registered users, plus the 10 million additional registered users on Geni.com, and get matches you would not receive otherwise.”¹

The company notes that “DNA and traditional genealogy methods, such as family trees and historical records, go hand in hand. DNA can sometimes help where traditional research encounters a dead end, while traditional genealogy is often required to pinpoint an exact relationship path discovered by DNA.”²

At the moment, only data uploads are active — the matching service hasn’t launched yet. Users who get in on this ground floor can upload their data for free and the matching service will remain free for them even if, as seems likely, the DNA matching service becomes a premium feature down the road.

Sounds good. And it’s likely to be good. But with this and any service like this, it’s essential that we’re all sure we read, understand and are comfortable with those pesky legal details called terms of use.

Terms of use, remember, are the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.³

And when it comes to a system like this one, terms of use also govern whether we can use the MyHeritage DNA matching service and, if we do, what rights we’re giving MyHeritage.

And that’s where that built-in “Gotcha!” comes into play: the upload area on MyHeritage has two sets of terms and two “I have read and accept” checkboxes. Only one — the DNA Terms of Use — is required to participate. The other one — the Consent Agreement — is not required. But if you go ahead and check that checkbox, thinking that it is required, you’re giving up rights to MyHeritage that you might not want to give up.

The Consent Agreement is for a program “designed to facilitate DNA-based research (both internal and through third-party organizations) based on the DNA Results uploaded or transferred to MyHeritage” and it “collects, preserves and analyzes genealogical lineage, historical records, surveys, genetic information, and other records (collectively, “Research Information”) provided by users in order to conduct research studies to better understand, among other things, human evolution and migration, population genetics, regional health issues, ethnographic diversity and boundaries, genealogy and the history of the human species. Researchers hope that the Project will be an invaluable tool for a wide range of scholars and researchers interested in genealogy, anthropology, evolution, languages, cultures, medicine, and other topics.”⁴

MyHeritage says, plainly, in the Consent Agreement, that “(p)articipation in this Project is purely voluntary and may be revoked at any time” — so again it isn’t required to participate in DNA matching, and if you accidentally checked that checkbox already, you can get out of it now. If you do choose to participate, you’re authorizing MyHeritage and its unidentified “third-party organizations” to access your personal information, in combination with your DNA data. It won’t publish any identifying information without your specific express permission — but it will use it for research.

There’s nothing wrong with this kind of a research project. AncestryDNA has one, too. So does 23andMe. But it should be clearer from the outset that you don’t have to participate in the research project in order to use the DNA matching service.

As for the terms of use for the service itself, again, we need to read, understand and be comfortable with what they provide before participating. Here are the basics, drawn from the terms of use dated 1 May 2016, that apparently can only be displayed once you’re on the website and logged in there (I couldn’t find any externally accessible link):

• You give MyHeritage permission “to analyze and match the DNA Results using methods available now and developed in the future, to disclose the results of the matching and analysis to you, to disclose the matches to others that your DNA has matched and provide them the opportunity to contact you through the Website.”

• You can remove your DNA results from your profile page, but your permission to MyHeritage to use them is forever: “you grant MyHeritage a perpetual, royalty-free, world-wide, transferable license to use your DNA Results, and any DNA Results you submit for any person from whom you obtained legal authorization as described in this Agreement, and to use, host, sublicense and distribute the resulting analysis to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered.”

• You give MyHeritage the right to “transfer, lease, rent, sell, share and/or or otherwise distribute de-identified information to third parties for any purpose, including without limitation, internal business purposes. Whenever we transfer, lease, rent, sell, share and/or or otherwise distribute your information to third parties, this information will be aggregated and personal identifiers (such as names, birth dates, etc.) will be removed.”

• You give up all claims against MyHeritage arising from the DNA matching service: “You hereby release the Company from any and all claims, liens, demands, actions or suits in connection with the DNA Results, including, without limitation, errors, omissions, claims for defamation, invasion of privacy, right of publicity, emotional distress or economic loss. This Agreement continues even if you stop using the Website or DNA Services.”

• If there is a dispute, it has to be litigated in Israel under Israeli law: “This Agreement and any dispute regarding the DNA Services, shall be exclusively governed by the laws of the State of Israel, without regard to conflict of law provisions, and you agree that any legal proceeding in connection with the execution, performance and/or enforcement of this Agreement shall be brought exclusively to the courts located in Tel Aviv, Israel.”

• You can’t bring any kind of class action, but can sue — if at all — only as an individual: “ALL CLAIMS MUST BE BROUGHT IN EACH PARTY’S INDIVIDUAL CAPACITY AND NOT AS A REPRESENTATIVE PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, EACH OF YOU AND MYHERITAGE WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION CLAIM.” (Capital letters in the original.)

• If you do something with respect to the DNA results that gets MyHeritage into any kind of legal jam, you’re on the hook to MyHeritage: “You agree to indemnify and hold MyHeritage, its subsidiaries, agents, licensors, managers, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of or access to the DNA Services, your violation of this Agreement, breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any DNA Results that you post on the Website or through the DNA Services causes the Company to be liable to any third party.”

So… read these documents carefully. Make sure you understand what they say. If you’re not comfortable with them, don’t upload your data. Once you upload it, you can stop it from being displayed, but otherwise can’t stop it from being used.

And again… you do NOT have to agree to the Consent Agreement and the research project in order to get in on the DNA matching.

SOURCES