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
Wait.
Stop.
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)).
SOURCES
- 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. ↩
I fear that our friend has visions of glory that outweigh his better judgment in this. Watching that PR video made my stomach fall.
I’ve been imagining the conversations with some fast-talking fed that resulted in this…
Every FTDNA customer (like me since 2006) should forward a copy of this to FTDNA so he understands there are many who do not approve. I have not put any of the DNA packets on GedMatch just for this reason, thinking that I was protected on the paid sites. I have no right to put my family privacy out there for law enforcement. Today they are solving old murder cases, tomorrow they could be finding my and my families jewish background in Germany – and we all know how well that went. This is a HUGE invasion of my family privacy.
Agree. Fear of persecution of Jews or others. Jews have over 20,000 matches. Will they all be downloaded into an FBI database? How long will it be kept. How will it be protected? When will it be deleted? I paid a fortune for all the kits I have given to family members. Just let. Us t out!
I agree. Laurie Huey, thank you for putting into words what I’ve been thinking for the last 48 hours.
Judy, you describe my exact feelings. FTDNA offers its customers several crowd-sourcing options, from scientific research to various surname and local population study groups, but all except just this one are “opt in” (and the person who opts in is required to be an adult). What makes them think that all those of us who have refused to opt in to scientific studies which might use our dna information to find a cure for cancer are suddenly anxious to give it away to a government agency to possibly be kept forever for future reference and shared with other government agencies, or possibly even the same research programs from which we specifically opted out. Any FTDNA customer who wants to have their dna used by law enforcement to crowd-source Criminal investigations is already free to do so by uploading their data file to GEDmatch. Could it be the reason FTDNA didn’t notify anyone of the changes made to the Terms of Service is that they knew many of us would prefer to NOT participate in this particular “crowd-sourcing opportunity”? After all, many of us chose to test with FTDNA precisely because of its strong privacy protection. By depriving us of the protection they promised without following the notification procedure they promised they would follow, they have, in effect, stolen their own customers’ sensitive personal identity information and committed a deliberate mass data breach.
First – I have, for the time being, opted-out of sharing. I also did the same for the kits I administer. I’ve contacted everyone I know who tested with FTDNA of the change so that they can decide for themselves what they wish to do.
Second – I wrote a blistering email to FTDNA regarding their reprehensible, morally and ethically bankrupt conduct.
Third – I strongly object to Bennett Greenspan’s assertion that if we don’t wish to participate we are hiding rapists and murderers. That is utter nonsense. If that were the case, individuals would hardly have their DNA tested.
I also have opted out of matching and sent a message to FTDNA explaining why, and letting them know I would be deleting my kit and account on Mar 1 if the policy did not change.
Unfortunately I suspect most of their customers won’t even notice the change, and most of those that do notice won’t understand the impact.
The “this is only a problem if you have something to hide” meme is a sad and worrying insight into our failure as a society to educate children (and adults) on how our system of democracy works.
I have my Big Y DNA and Full MtDNA test through FTDNA. Where can I join the Class Action Law Suite. I turned my match option off, which limits my research.
I don’t believe there is such a suit — yet. But there has been talk and, unless this gets switched over to opt in, I do expect one to be filed.
Count me in!!!
I so appreciate the thoughtful commentary by so many.
This whole situation is scary. Mr. Greenspan was wrong in his decision which unfairly affects his clients. I tested with FTDNA as did my cousin with the expectation of privacy and to find our ancestors. We did not expect BIG BROTHER to suddenly track our DNA-is the Government setting up a DNA database? Mr. Greenspan just may find his company going out of business. He obviously has no concern for his clients. And, I highly doubt murderers and rapists are flocking to DNA companies. He needs to get a grasp on reality.
Another reason for Opt in is for those who submitted DNA and have since passed. How can they Opt Out? I shall be writing to them too
FtDNA is absolutely ruining genetic genealogy with this change. I’m a co-admin of a Y-DNA surname project and I have promoted Y-DNA testing to countless people because of the wonderful effects it is having in expanding and clarifying lineages but I will no longer do that. FtDNA is undoubtedly shooting themselves in the foot as well as possibly destroying our surname projects as more and more people “opt out” under the current terms.
Will the Association of Professional Genealogists be actively encouraging Mr. Greenspan to create the opt-in option?
Hopefully the APG will also create an online petition we can all sign and record comments.
How many kits have been sold and uploaded because professionals have advised us to do so? APG should have an outsize influence on Mr. Greenspan’s next actions.
That’s a question to be raised with APG.
Thanks for raising our awareness on this issue, Judy. You have done a great service here!
Thank you, Judy, for putting into words exactly what I (and so many genealogists) feel about this situation.
At the time I’m writing this, others seem to have received an email from Mr. Greenspan, but I have not. I’ve been a customer since 2009 and have used the Yand Mtdna testing, as well as autosomal uploads, for a total of 16 tests/kits on the site. I haven’t pulled my kits, but I am going to stop matching until this is resolved to my satisfaction. If that doesn’t happen, I will pull them (and all data) from the site and not ever use them or suggest their services, again.
Renate
All the above, and particularly Laurie Huey, have so well articulated my thoughts/feelings on this (very important) development with “Family Tree” DNA and the prospects for genetic genealogy. Although Mr Greenspan stated they “received an incredible amount of support from those of you who believe this is an opportunity for honest, law-abiding citizens to help catch bad guys”….I don’t think he’s really heard from his customer base in “Family Tree” DNA, yet
Thanks for these updates Judy! Please keep us posted on the progress towards a class action lawsuit. I would like to know what I could do to help as an FTDNA customer.
European FTDNA customers who are unhappy about this, please continue filing GDPR complaints with your respective data protection agencies. You can find a list here:
https://www.varonis.com/blog/gdpr-data-protection-authority-supervisory-listing/
Thanks Judy! I have had so many emotions about this entire issue since last year. I’ve been working on two 1970s homicide cases since 2012, and was looking for the serial killer lurking in Exeter, CA, so the arrest of DeAngelo should have been a happy day – but it wasn’t. There is no evidence that these private DNA searches will pass future legal analysis under federal and state constitutions. One attorney in the LA FBI office gave his opinion that what Paul Holes wanted to do was ok. Some of his thinking was faulty – the people being arrested did not voluntarily give up their privacy rights by uploading their data – distant family members did. Some of his thinking was overturned by SCOTUS in Carpenter last June. These searches may be DOOMING these criminal cases, and actually allow identified criminals to walk free, with no way to ever undo the fruit of this poisonous evidence tree. Rather than wait for DeAngelo’s case to go through the courts, and be properly tested, Holes and Kramer have run around the country possibly contaminating dozens of cases with privacy and search violations. Also, what started as catching cold case serial killers has now morphed into current rape cases. What’s next? Immigration violations? People with Iranian ancestry? There are no rules, because two individuals just got it in their heads one day to do something that every other DA and law enforcement agency believed was unconstitutional. Allowing the FBI into the database is likely hurting criminal cases, not helping. My son was involved in several ongoing y-str studies, but I turned off his matching after the TOS change last May, and had his data removed and swabs destroyed this week. To equate the FBI with a general member is absurd, both legally and practically. As we all know, there is no need for a warrant – the FBI gets access to match names, family history into, and direct contact with matching members. Failing to notify us, pretending that there is some kind of court oversight of these searches, and violating their own policies is unforgivable. We all gave up our rights to a class action suit in the TOS, but hopefully an attorney who specializes in that area can find a way around that. I will be the first in line to join the class.
After years of work (New York is so difficult!) I’ve just reached a good guess at the identity of my maternal 3G-GM (maternal line all the way), and identified a handful of living half-4th-cousins of completely separate but also entirely maternal descent from that woman by her 1st marriage.
I was at the point of tracking these strangers down and asking if one of them will please do an mtDNA test which would definitively rule this candidate in or out, as a shared ancestor.
Many people would see it as somewhat “creepy” to be tracked down in this way to begin with. It strikes me that the change that FtDNA just made, and the (appropriate) furor over it, makes it far less likely that strangers will choose to cooperate, and as a result the potential to confirm this particular line may soon be lost forever.
I hope the new panel of advisers will include this kind of issue in their work with FtDNA.
I too am bothered by this, and I think the effects will spread far beyond FTDNA, as consumers paint all other DNA testing companies with the same brush.
Kristen brings up a very good point about this contaminating the evidence and possibly letting killers walk because of it. I think it’s only a matter of time until that exact thing happens. Frankly, I’d be a lot more sympathetic to using these services to identify long-unidentified murder victims, than I am to tracking down criminals. But this attempt to do an end-run around due process is not acceptable, and by prioritizing law enforcement over his own customers’ consent Greenspan is damaging the reputation of all consumer genetic testing.
I think there should be several “Opt In” choices. One for matching to Unknown Remains, if you’re comfortable with that. One “Opt In” for ‘violent crimes’, if you’re comfortable with that. Maybe there are other “Opt In” scenarios that haven’t been thought of yet. I like the “Opt In” idea. But yes, give us the customer a choice.
Here is the reply I got from FamilyTreeDNA:
“Hi Dee, we have not made your DNA or your DNA test results available to the FBI. The FBI does not have any kind of special access to our database.
The FBI is able to transfer test results into our database just like someone who has tested with Ancestry DNA or 23andMe. They’re only able to access the information that a regular transfer user would be able to access. They can only see matches that are related to the data they’ve uploaded and they can only see the information those matches have chosen to share (typically a name and an email address).
You might find this letter from our CEO, Bennett Greenspan, helpful: https://mailchi.mp/familytreedna/letter-to-customers“
I really wish FTDNA would quit saying it’s just name and email address. It’s far more than that. It’s matching segment data, matches in common with other family members (and segment data for the ICW matches), family trees and the like.
On the odd coincidence front I was just watching “Three Billboards Outside Ebbing, Missouri”. The main protagonist’s character played by Frances McDormand, whose daughter was brutally murdered, brow beats the small-town sheriff as to why he has not DNA-tested every boy and man over the age of eight in town. The conversation continues on about testing everyone in the country. DNA plays a role in later in the movie also.
She could have added, “Well have you checked gedmatch or loaded to the DNA into FTDNA or one of the the other DNA databases so you can at least hone in him through his #%#%$#$ cousins.”
Maybe if this film was made a few years from now, that will been a common thing to ask.
Someday everybody will be tested at birth and they’ll all wonder why we were so upset about this. Getting from here to there… not so easy.