…and the ethical need to follow them

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

DNA terms and conditions

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

  1. 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).
  2. Terms of Service and Privacy Policy,” GedMatch.com (https://www.gedmatch.com/ : accessed 5 Aug 2018).
  3. Terms and Conditions,” MyHeritage DNA (https://www.myheritage.com/ : accessed 5 Aug 2018).
  4. Terms of Service,” Family Tree DNA (https://www.familytreedna.com/ : accessed 5 Aug 2018).
  5. Terms and Conditions,” Ancestry.com (https://www.ancestry.com/ : accessed 5 Aug 2018).
  6. Terms of Service,” 23andMe.com ( : accessed 5 Aug 2018).
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