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Let’s not overstate the case…

In legal circles, the phrase “with all due respect” is used to preface a statement or set of statements that can roughly be summarized in two words: “I disagree.”

That’s pretty much the reaction of The Legal Genealogist to a piece written by another New Jersey lawyer (update 2018: his post now here) about the legal issues and risks inherent in DNA testing in general and testing with AncestryDNA in particular.

It’s not that everything said in the article was wrong; to the contrary, much of it is absolutely right. It’s more that perfectly ordinary facts are presented in alarmist terms, as if they were new or surprising or unusual when they’re none of those things.

Let’s start with one thing the article says that is wrong: that testing means the testing company owns your DNA forever but you lose your ownership of your data after a period of years.

Um, no. With all due respect, there’s nothing in any company’s testing terms and conditions that strips you of your right to your data down the road. Your data remains your data, period.

You do have to agree to license your data to the testing company in order to test. The company can’t analyze your sample, compare it to others’ data, report your ethnicity estimates or present you with your match lists if you don’t allow it to do so.

It is true that you give AncestryDNA a broader forever-and-ever license when you test. You are agreeing, in the terms and conditions, to allowing the aggregated use of your anonymized data with that of other customers for research that may end up with a commercial application — and you won’t personally benefit. No royalties, for example.

There’s nothing new or startling or unusual about this. It’s clearly spelled out in the terms and conditions. I’ve written about this in the past, as have other bloggers. If you don’t want your data used this way, don’t test. Or at least don’t test with AncestryDNA.

Next, the article sounds all kinds of alarums about the risks that genetic genealogy testing data will be used against you by law enforcement, employers and insurers. Here again … with all due respect… the statements are overblown.

Genetic genealogy data is different from the data collected by law enforcement and processed through CODIS. We test to see how people are alike and can be grouped into families. Law enforcement tests to identify unique individuals who can be distinguished from everybody else.

Our data surely can be used, with great effort and expense, to aid in criminal investigations. But because of that great effort and expense, and because our data can’t be used directly in court (because of chain of custody issues), it’s not the easy first choice of the police. It’s only in the most serious of cases (murders, for example) where all other leads have failed that it’s even been tried.

That being said here’s a simple word of advice: if you’re worried about the police investigating you or a family member for a very serious crime, don’t test.

As far as employment and insurance are concerned, there are some legal protections– and some risks. There is a federal law prohibiting use of genetic information to discriminate in employment or health insurance. Life and long term disability insurance aren’t included.

Most genetic genealogy testing won’t be useful to show the kinds of conditions that might be a real risk for those types of insurance, and your family health history is a bigger problem in almost every case. Here again, if you’re concerned, don’t test.

The employment example in the article about the police officer who faced harassment on the job after a DNA test disclosed he had African-American ancestry is just plain silly. With all due respect, DNA testing companies aren’t responsible for co-workers who turn out to be racist idiots.

I do generally agree with the article author that it’s a pain to be forced to consent to arbitration if we do have a dispute with the testing company, rather than being allowed to sue. Again, that’s nothing new, and it’s hardly unique to DNA testing. Everybody these days is pushing for arbitration rather than litigation. Take your car in for service and, chances are, you have to agree to arbitration in the service agreement.

Calling it the “final indignity” and linking it to the risk of misuse of data, however, is — with all due respect– a bit much. It’s not the fault of the testing company that the law today pushes arbitration. Both state and federal laws are pushing it as a means of resolving disputes without clogging up the courts. Don’t like it? Change the law. Or — in this specific case — don’t test.

And I heartily agree with the author’s position that we should never just click through to agree to terms and conditions without reading and understanding them. There are some very real risks involved in DNA testing, the most cogent of which is the risk of learning something about ourselves or our families that we aren’t truly prepared for. That a parent isn’t a biological parent. That we have relatives we didn’t know about. That our cherished stories about our ethnic origins are only stories…. and not truth.

But with all due respect let’s not overstate the case. There are risks involved in any human endeavor, and each of us must decide — based on facts and not hype — whether the risks are worth it in our individual circumstances.

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