An opt-out system for police matching

It’s never easy to step back, take a deep breath, and admit you’ve made a mistake.

So The Legal Genealogist will give Family Tree DNA full credit for taking the first big move towards stepping up to the plate and doing just that.

The company announced yesterday that it has revised its terms of service, limited law enforcement access to its DNA matching system to only cases involving efforts to identify the remains of a deceased individual or a perpetrator of a homicide, sexual assault or abduction, and provided an opt-out system for all customers who are uncomfortable with the use of a genealogical database for police searches that doesn’t require them to give up the benefits of having tested.1

The announcement came after weeks of turmoil that followed the disclosure that FTDNA had quietly, without any advance warning to customers and without any notice being sent afterwards to customers, changed its terms of service to allow law enforcement agencies access to customers’ test results via its DNA matching system — and that such access had already taken place.2

The prior version of FTDNA’s terms of use had stated that users were not permitted to use its services “for any law enforcement purposes, forensic examinations, criminal investigations, and/or similar purposes without the required legal documentation and written permission from FamilyTreeDNA.”3 In that context, “required legal documentation” appeared to mean an appropriate court order or subpoena, issued with appropriate judicial oversight, especially when read in conjunction with the FTDNA Privacy Statement’s promise that personal information would be disclosed only “if we believe it is reasonably necessary to … comply with a valid legal process (e.g., subpoenas, warrants)…”4

But without warning or notice, the terms were changed to allow submission of a police crime scene sample if it was “obtained and authorized by law enforcement to either: (1) identify a perpetrator of a violent crime, as defined in 18 U.S. Code § (924) (e) (2) (B), against another individual, including sexual assault, rape, and homicide; or (2) identify the remains of a deceased individual…”5

The upshot was predictable: customers were outraged. Even those who don’t object to the use of their genealogical DNA samples to solve horrible crimes were outraged that they hadn’t been told, and that nobody who objected had an effective option. The only choice given was to opt out of all matching completely — in other words, give up all the benefit of the test folks had paid for.

FTDNA backpedaled after a few days and said it was listening to its critics as it rolled back the change in the terms of service.6

Yesterday, it started down the path to making things right by announcing major changes in its terms of service and privacy statement.7

The big changes are these:

1. The company has clarified that it will only permit law enforcement agencies, or those working on behalf of law enforcement agencies, to submit crime scene samples to the DNA matching system in cases of homicide, sexual assault, or abduction, or to identify the remains of a deceased person.8 That’s a vast improvement over the use of an almost-unlimited federal statute that included crimes that didn’t even require that anyone be harmed.

2. The company has greatly clarified its law enforcement practices, including what information it requires from police agencies before allowing them to submit a sample to the matching system. It has also stated, clearly and candidly, that — despite its best efforts — it can’t prevent law enforcement agencies from lying or trying to sneak a sample into the database without its knowledge. This is a level of candor and clarity that’s been sorely lacking up until now.9

3. The company now allows any user to opt out of law enforcement matching and has barred these test kits from joining Group Projects.10

This last bit is a good start. It’s not good enough, frankly, because — except for European Union users who were all opted out by the company and have to take action to opt in and allow police matching to their kits — for the rest of the world, it’s still opt out and not opt in.

The hitch of course is that informed consent can never be acquired by a “you consent if you don’t take action” system. Informed consent requires a clear affirmative act by the person giving consent — a fact the European Union knows well and has written into its General Data Protection Regulation (GDPR). That’s why FTDNA didn’t force EU users to opt out, but is giving them the right to use an opt in system. Anything else would violate the GDPR.

For the rest of us, we have to take action if we’re uncomfortable with police use of the matching system. And the reality is that huge numbers of FTDNA customers can’t opt out of police matching. Many are no longer alive to opt out. Some may have changed email addresses and won’t get notice they need to opt out. And many many people have their kits managed by cousins who won’t understand or act appropriately on the ethical duty to tell the test taker about the change and let each individual make his or her own decision.

So it’s not what it should be: an opt in for everybody, not just for customers from the EU.

But it’s a lot better than what it was — a take-it-or-leave-it-lose-your-test-benefit choice.

So… if you want to opt out, here’s how to do it:

1. Log in to your FTDNA account. (And yes, if you manage multiple accounts, you’ll have to log into each one individually.)

2. Use the dropdown arrow at the upper right, to the right of your name, to open the menu there and choose Account Settings.

3. On the Account Settings page, open the Privacy & Sharing tab.

4. Cursor down to the Law Enforcement Matching (LEM) section and slide the marker from the right, where it’s blue, to the left, where it will turn grey.

On off switch

Understand, now, for new customers — from anywhere including the EU — the opt-in or opt-out choice is for matching, period. As of now, anyone who signs up for an account and tests or transfers data in from another testing company will only be asked to opt in to matching, and then has to affirmatively act to opt out of types of matching, with police-generated kits.

So if you opt in to matching at all, you are automatically opting in to law enforcement matching. This is suggested by the consent form presented at sign-up, but really isn’t all that clear.

Matching consent

It’s better if you don’t agree to matching at the outset and have to turn it on, because all matching is greyed out until you turn it on and then law enforcement matching appears — still turned on automatically, but with more visual cues that you may be agreeing to something you don’t want to agree to.

Good first step. Not as good as it could be or as it should be, since informed consent really does require a clear affirmative act, and can’t be done by a system of “we think you consent because you didn’t do anything.”

But so much better than it was.


SOURCES

Cite/link to this post: Judy G. Russell, “A good start by FTDNA,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 13 Mar 2019).

  1. See “Updates to our Terms of Service and Privacy Policy,” FamilyTreeDNA email to customers, 12 Mar 2019.
  2. See generally Judy G. Russell, “Opening the floodgates,” The Legal Genealogist, posted 1 Feb 2019 (https://www.legalgenealogist.com/blog : accessed 12 Mar 2019).
  3. December 2018 version, Paragraph 6(B)(xii), “Your Use of the Services: Requirements for Using the Services,” in “Terms of Service,” FamilyTreeDNA (https://www.familytreedna.com/ : accessed 1 Feb 2019).
  4. Paragraph 5D, “How FamilyTreeDNA shares your information: For Legal or Regulatory Process” in “FamilyTreeDNA Privacy Statement”, FamilyTreeDNA (https://www.familytreedna.com/ : accessed 1 Feb 2019).
  5. February version, Paragraph 6(B)(xii), “Your Use of the Services: Requirements for Using the Services,” in “Terms of Service,” FamilyTreeDNA (https://www.familytreedna.com/ : accessed 1 Feb 2019).
  6. A letter to our customers,” FamilyTreeDNA email to customers, 3 Feb 2019.
  7. See “Updates to our Terms of Service and Privacy Policy,” FamilyTreeDNA email to customers, 12 Mar 2019.
  8. See “FamilyTreeDNA Law Enforcement Guide,” FamilyTreeDNA (https://www.familytreedna.com/ : accessed 12 Mar 2019).
  9. Ibid.
  10. See Paragraph 5(E), “How FamilyTreeDNA shares your information : Law Enforcement Matching (LEM),” in “FamilyTreeDNA Privacy Statement,” FamilyTreeDNA (https://www.familytreedna.com/ : accessed 12 Mar 2019).
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