Enable us, Family Tree DNA!
The furor over the unilateral decision of the genealogical DNA testing company Family Tree DNA to change its terms of service and open its customer database to law enforcement for use in criminal investigations comes down in the final analysis to one word: choice.
As The Legal Genealogist pointed out in Friday’s blog post, the change occurred on some unspecified date in December 2018 and — despite an express commitment in the terms of services (TOS) themselves to “notify (customers) via email of any changes or additions to these TOS” — nobody was told about it until the press got wind of the change and Buzzfeed broke the story.1
FTDNA has defended this “our way or the highway” change by saying that broad law enforcement access to the database was part of a change in the TOS that everyone did get notice of last May and the more recent change just a narrowing tweak — pure sophistry since those May changes were to comply with the European Union’s General Data Protection Regulation (GDPR) and the GDPR flatly prohibits processing of genetic data unless express consent is given for a specific purpose.
Its President, Bennett Greenspan, then added his own defense in a video clip attached to a press release, saying: “…I felt it important to enable my customers to crowd source the catching of criminals.”2
The word enable means to give the means to do something. To make it possible. To make it available.3 In other words, to have a choice.
For those customers who applaud the change, their choice has been honored. Under the change as announced, they don’t have to do anything and don’t lose any benefit from their tests from it.
For those customers who are appalled by it, there is no real choice. Under the change as announced, to prevent some of their information from being opened up to police, they must take affirmative action to opt out of some of the most fundamental features they paid for when they tested with Family Tree DNA such as matching with other customers, to lose the long term benefit of testing with Family Tree DNA.
And that’s always what’s wrong with any system that’s opt out and not opt in.
Here’s what reader Laurie Huey had to say about it in a comment to Friday’s blog post:
I don’t find that Bennett Greenspan enabled me, his customer since 2008, to have any say in whether I wanted to be part of the crowd catching criminals. My only recourse is to go through the 22 active kits (33 separate DNA tests) I manage and opt out of matching. I will also table the other 7 tests I’ve purchased and have yet to use.
I highly disagree with the way this whole matter has been handled by FTDNA. I should have been informed of FTDNA’s change to its Terms of Service that allows law enforcement to use the database as a tool to solve crime. I should have been allowed to make my own decision if I wanted to be part of that tool. And I should not be cast out of the database that I paid FTDNA to be part of because I choose not to be part of law enforcement’s tool. If FTDNA wants to use the database as a tool for law enforcement to solve crimes, then FTDNA should let its customers decide if they want to be part of it and allow its customers to opt in to be part of that tool.
I have purchased every kit from FTDNA as part of a hobby. I never purchased one to become a crime fighter. I own my DNA; I should own the decision of how it’s used. Does FTDNA not see the conflict in its belief that we own our DNA and its actions that contradict that belief? Why am I not allowed to say I don’t want to be part of a law enforcement tool, but I want the service that I paid for? And, by the way, “law enforcement” is NOT like any other customer who purchases a kit from FTDNA. Clearly, law enforcement’s motive is very different. (I’m not even going to address my thoughts of whether FTDNA should be inviting law enforcement into the database and working with the FBI.)
I’m obligated to be a good steward to the 21 other kits that I manage. I don’t feel I have the authority to speak for the DNA owners until we can have a conversion about what their wishes are on the matter. Why did FTDNA feel they had the authority to decide for them and opt them into this law enforcement tool? I think Bennett Greenspan needs to spend more “many, many nights and many, many weekends” thinking about what he has done and the repercussions of his actions.4
What might those repercussions be? Well, we already know that there’s been at least one complaint filed with EU regulators and there is serious talk about class-action lawsuits in the United States. If this unilateral no-choice decision is found to violate the GDPR, the fines under that regulation are staggering. And just defending against a lawsuit in the United States can be crippling.
So… what’s Family Tree DNA to do about it? How can it save itself from potentially disastrous consequences from imposing its judgment on its customers without their input or consent?
It’s easy, really. It can do what Laurie suggests: change this from an opt out system (where the customer who opts out loses) to an opt in system (where nobody loses and anyone who wants to “crowd source the catching of criminals” can do so).
Making it expressly opt in would clearly comply with the GDPR and with every reasonable expectation of every customer who’s ever tested (you want in? great! you don’t want in? great!).
It would truly honor the company’s commitment to put the privacy of its customers first.
And by taking the target sign off of its back in the eyes of regulators and litigators, it might well make the difference in whether Family Tree DNA — the smallest and most vulnerable of the genealogical testing companies — survives in the long run.
So here’s a heartfelt plea to Family Tree DNA: enable us. Really enable us. Give all your customers a real choice. Not the fake choice to take it or lose the benefits of what we paid for — but the choice to have our wishes on privacy honored — whatever those wishes may be.
One little change, from an imposed opt out system that hurts a large number of customers to an opt in that hurts no customer at all.
Come on, Family Tree DNA — enable us.
Cite/link to this post: Judy G. Russell, “One little change,” The Legal Genealogist, posted 3 Feb 2019 (https://www.legalgenealogist.com/blog : accessed (date)).
- See Judy G. Russell, “Opening the DNA floodgates,” The Legal Genealogist, posted 1 Feb 2019 (https://www.legalgenealogist.com/blog : accessed 3 Feb 2019). ↩
- “Press Release: Connecting Families and Saving Lives,” Family Tree DNA blog, posted 1 Feb 2019 (https://blog.familytreedna.com/ : accessed 3 Feb 2019). ↩
- See Merriam-Webster Online Dictionary (https://www.merriam-webster.com/ : accessed 3 Feb 2019), “enable.” ↩
- Laurie Huey, comment to “Opening the DNA floodgates,” posted 2 Feb 2018. ↩