…and the ethical need to follow them
NOTE: This blog’s recommendation at any time of GEDmatch has been withdrawn due to privacy issues. See “Withdrawing a recommendation,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 15 May 2019).
Only someone who’s been living in the north woods without electricity or cellphone service can be unaware at this point in 2018 that law enforcement is intensely interested in using our genealogical DNA test results as resources in criminal investigations.
Since the news broke in April that police in California had used the genetic genealogy database GedMatch.com to help identify a suspect in the decades-old Golden State Killer case — reported by The Legal Genealogist and many others then and since1 — we’ve all been on notice that DNA results that came into being solely for genealogical reasons are exceedingly useful in solving cold cases and that law enforcement has figured that out.
The GedMatch terms of service have since been revised to make that possibility abundantly clear and to limit that use as much as it can to major crimes of violence: it allows submission of DNA samples “obtained and authorized by law enforcement to … identify a perpetrator of a violent crime against another individual,” and it defines violent crime as murder or sexual assault. Anyone who violates the policy “will have their Raw Data or other personal information deleted without warning, their access will be blocked, and/or other remedial steps may be taken, including any legal action allowed under law.”2
So… what about the testing companies themselves? What have they done in response? And what is and isn’t allowed there? When our cousins start saying they’re not going to test because they don’t want to allow police use of their data this way, what can we tell them?
Here’s the bottom line: none of the testing companies permit law enforcement agents to upload data to their databases in the absence of appropriate legal oversight and with full disclosure of the nature of the upload. Nobody but nobody — not the police and not a genealogist working for or with the police — is allowed to upload a sample surreptitiously or using an alias or pretending that the sample is just another ordinary tester.
Some of the companies couldn’t be clearer about this:
• At MyHeritage DNA, the terms and conditions state that “using the DNA Services for law enforcement purposes, forensic examinations, criminal investigations and/or similar purposes, without a court order and without prior explicit written permission from MyHeritage, is strictly prohibited. It is our policy to resist law enforcement inquiries to protect the privacy of our customers.”3
• At Family Tree DNA, users must “agree to not use the Services for any law enforcement purposes, forensic examinations, criminal investigations, and/or similar purposes without the required legal documentation and written permission from FamilyTreeDNA.”4
Other companies haven’t been quite as quick to amend their terms to expressly bar law enforcement, but their intent has long been clear. At AncestryDNA, the terms and conditions state that the company and they require each adult who uses the service to create an individual account. Not an account on behalf of someone else, mind you. His or her own personal account.5
Likewise, 23andMe doesn’t expressly bar law enforcement but does require that any sample submitted be that of the person submitting it or someone who has legal authority to do so and requires each user to “provide true, accurate, current, and complete Registration Information” — no fake accounts to sneak a law enforcement sample into the database.6
There are potential consequences if the police or genealogists (amateur or professional) violate these rules and manage to sneak a sample in when they shouldn’t:
• A genealogist caught doing this will be blackballed from the use of that service — and may find himself or herself blackballed from all of the services.
• The genealogist could face legal action by the service and by any match whose privacy was invaded by the inappropriate use of the database.
• The genealogist’s ethical reputation will frankly be ruined. Nobody wants to work with or hire somebody who won’t play by the rules.
• And the ultimate prosecution of the bad guy — which, we all hope, is the reason why the test was attempted — could be jeopardized and the entire case at risk if the evidence used at trial is held by the court to be the “fruit of the poisonous tree”: a legal doctrine that says you can’t use evidence at trial if you got it only because one of your first steps was illegal.
So when our cousins ask if it’s still safe for them to take a DNA test when they only want it used for family research, we can tell them what the rules are.
And tell them we’ll have nothing to do with any genealogist who doesn’t follow them.
SOURCES
- See Judy G. Russell, “The bull in the DNA china shop,” The Legal Genealogist, posted 29 Apr 2018 (https://www.legalgenealogist.com/blog : accessed 5 Aug 2018). ↩
- “Terms of Service and Privacy Policy,” GedMatch.com (https://www.gedmatch.com/ : accessed 5 Aug 2018). ↩
- “Terms and Conditions,” MyHeritage DNA (https://www.myheritage.com/ : accessed 5 Aug 2018). ↩
- “Terms of Service,” Family Tree DNA (https://www.familytreedna.com/ : accessed 5 Aug 2018). ↩
- “Terms and Conditions,” Ancestry.com (https://www.ancestry.com/ : accessed 5 Aug 2018). ↩
- “Terms of Service,” 23andMe.com ( : accessed 5 Aug 2018). ↩
Thank you for so clearly outlining and communicating the guidelines for usage of the genetic genealogy databases for law enforcement applications, Judy. I hope that if anyone is considering this type of surreptitious action, they will read your post and consider the very serious potential consequences.
I have a further question in relation to this tangled issue. All of the DTC sites have a global reach. What happens when a person who is neither a US resident, nor a US citizen, finds that their DNA has been used to identify a relation as a suspect in a crime?
And what happens if a foreign police service seeks to identify a criminal from among those of their own compatriots using US DNA databases?
I think that the DNA companies’ rules would not prevent a foreign policeman coming to the US and uploading a DNA profile with a false name from inside the US, thus bypassing any laws in their home country. Likewise US law enforcement could seek to bypass the DNA companies’ rules and any US laws by travelling abroad and doing the same.
Realistically, the only thing that will stop any law enforcement officer from skirting the rules is a court decision that the evidence gained that way can’t be used. Without that, it’s only a matter of time…
And this goes hand in hand with genealogists who do not work to the standards of the profession, endangering cases, their reputations, and the forensic and genetic genealogy profession.
More reasons why we must absolutely have written reports demonstrating all methodology meets professional standards.
There is no way of stating this without sounding ominous. Those databases can be accessed, copied and stored by other government agencies. Companies listed in this blog plus others can not do anything about it, neither can they warn or notify their clients it is going to happen or has happened without violating secrecy acts. So you might think “Well, these government agencies probably would never be interested in these databases”. Don’t bet on it. It has probably already happened.
every single DNA tester listed uses words like “without a court order” ‘legitimate’ request by authority, etc. All this is BS, trusting any database to be secure? Forever? By a fair minded law biding government? Announcement of a “national emergency” etc will override any of this. As example Venezuela overrode the rights and ownership of companies (including US ones) and took them over “nationalized’ them..for their own benefit. We now see starving humans there, because a poorly run gov. failed. If RESOURCES are limited in future people can be cherry picked OUT..based on health factors, genetic problems, etc. I have other examples in force NOW (VA is one). Which country is aborting all Down Syndrome babies in utero? Offering suicide options for severely ill? It’s happening.
I am going to set the cat amongst the pigeons I think but, I don’t understand the fear everyone has about the use of DNA to help Police – imagine if this was also able to help solve a brick wall of any genealogist.
You mention that the DNA tests came into being solely for Genealogical purposes. But as genealogists we use a miriad of databases that were not designed for Genealogical purposes, the Census was not to enable genealogists in the future to find their relatives, the Parish records from the Churches were not for the use of genealogists 100-200 years in the future, and do we not also use police records to find out about our unruly relatives? So in future are we going to have to fill in a question on a birth, marriage or death record that it can be used in future genealogical research.
Providing the correct processes are put in place, then I would have no qualms about the use of the DNA database to help anyone.
The problem is two-fold here: (1) many people tested before this use of the data became an issue and therefore were never asked for informed consent to that use (and some are now deceased and can’t be asked); and (2) because of (1) and the companies’ terms of use, the “correct processes” you speak of probably should include issuance of a search warrant by a detached and neutral magistrate applying the legal rules of probable cause.
My family expressed concern about the availability of parental DNA on GEDmatch as well as other databases. We decided to pull all our test results from GEDmatch but have left them with the other companies which have more explicit terms. It’s not that we don’t support solving crimes. But we don’t trust that the information will be kept confidential and not used against us at some point. Whether those fears are justified or not, we still have the right to our DNA and how it’s used.
my biggest concern is not for myself but for blood relations in FUTURE. All of the DNA companies have the ‘right’ to keep your DNA forever I have read (aka a master database) and I would not want a great grandson, or any far future family member be denied health insurance or treatment because I had cancer, or mental illness genes!!! We have NO IDEA how this info can be used against people by a totalitarian government, or those needing to limit WHO gets to live. I don’t think there is a comprehension in most Americans of this possibility. See what China is doing NOW…facial recognition software allows them to post on huge billboards, lists your crimes, shames you, all to have full control. Having my DNA also used in that way against family-for ‘control’ is horrific to me. Having your DNA IN any database, no matter what they promise means it is accessible.
I still am uneasy about DNA databases, even those intended only for genealogy.
On February 8, 2015, you wrote: “First, the tests we take for genealogy aren’t all that useful to the police. Our tests tell us how we are like other people — other family members who share common ancestors with us. The CODIS markers focus on parts of the DNA that make us unlike other people and set us apart as individuals.”
If law enforcement uses genealogical databases merely to narrow the pool of suspects, and not to collect evidence to be used in court, does that poison the evidence? How easy is it to know that this has happened?
Our DNA is substantially similar to our cousin’s DNA. Anne Myers wrote, “we have a right to our DNA.” How is this different from “we have a right to our cousin’s DNA?”
Here’s another scenario: an insurance company offers you a lower premium if you agree to have them test your DNA. (It’s happening.) They can then charge your cousins more or less based on your claim history and risk profile.
Can anyone tell what the implications of being in a DNA database may be in the future? The technology, its uses and the law are still evolving.
Judy, you’ve done a great job in explaining the benefits of DNA testing. But I’m still uneasy.
>> Can anyone tell what the implications of being in a DNA database may be in the future? The technology, its uses and the law are still evolving.
The second sentence answers the first question. No. We’re living in the transitional period. Twenty years from now, my guess is that all of this will pretty much be resolved. But we’re the guinea pigs on whom that resolution is being worked out.
Personally, I think we also ought to set guidelines that clearly prevent potential conflicts of interest. I think that genetic genealogists should not also work cases for law enforcement and vice versa. The potential conflicts of interest, real or perceived by clients, could be damaging and send mixed messages to our community. One community is focused on bringing families together, no matter what the background of the individuals. The other community is focused on resolving crimes, which, by nature, should have no interest in how that impacts the extended family of the criminal. In context, the two goals are somewhat incongruous and I don’t know how we can play in both worlds as professionals and commit to both.
I am grateful to have something written that I can show relatives regarding this topic. I have my own opinions, but I want the consent to be truly “informed.” Thanks so much for this clearly written explanation!
Truly informed consent is the only way to go.
These company statements seem to be more posturing than definitive.
“without a court order and without prior explicit written permission from MyHeritage, is strictly prohibited”
for instance. Do you imagine the WITH a court order, MyHeritage’s “explicit written permission” means a darn thing?
The Genealogy Co’s may update their T&C’s, however it doesn’t stop Police from creating a fake profile to submit DNA. Then there’s 23andMe selling DNA to drug companies. How long before Health Insurance companies try to gain access? 😉 https://www.businessinsider.com.au/dna-testing-delete…
Changes in the laws, and attempts to circumvent the rules, are of course a concern.