Law enforcement matching now opt-in only
Informed consent is the essential underpinning of ethical DNA testing and results-sharing. All persons who test have the right to make their own individual choices about testing and about the uses to which their DNA results will be put — including its use by law enforcement to fish for suspects in criminal investigations.
And, late last night, the third-party DNA tools site GEDmatch gave its users that right back.
In a stunning reversal of course, GEDmatch updated its terms of use late last night to change its entire system for allowing law enforcement to access its database to match crime scene test kits to kits uploaded by genealogical users: only those persons who affirmatively opt in to that use will be matched to police-uploaded kits. (Update note: BUT see also see also The choice that really isn’t.)
The change came after a firestorm over the decision of the site owners, disclosed in recent court papers, to allow an exception to their published terms of use in a Utah case without informing site users or obtaining informed consent to such an exception. The terms had limited law enforcement access to matching information to cases of murder or sexual assault only, and the case did not fall into those categories. The failure to follow the site’s own limits led The Legal Genealogist just this week to withdraw any prior recommendation to use GEDmatch for genealogy.1
The new terms of use will allow broader law enforcement use of the website — in cases of “murder, nonnegligent manslaughter, aggravated rape, robbery, or aggravated assault”2 — but also created new privacy settings under which kits will not be exposed to law enforcement use until and unless each kit owner opts in to such access.
Prior to the change in the terms, users could select from three levels of privacy: a private kit could not be used for any comparison to any other kit; a research kit could be used for comparisons to other kits but would not show up on match lists (and therefore should not show up on match lists for criminal investigation kits); and a public kit would be displayed on match lists for any other kit, public or research.
Public kit owners were not given any option to continue to use the site freely and openly for genealogical research without simultaneously allowing the use of their match information for criminal investigations. Everyone who wanted to use the site fully for genealogy was, in effect, opted-in to law enforcement access whether he or she wanted to opt in or not.
That changed last night.
Under the terms of the change, GEDmatch now has four levels of privacy from which to choose — Private, Research, Public + opt-in and Public + opt-out.
‘Private’ DNA data is not available for comparisons with other people. It may be usable in some utilities that do not depend on comparisons with other DNA.
‘Public + opt-in’ DNA data is available for comparison to any Raw Data in the GEDmatch database using the various tools provided for that purpose.
‘Public + opt-out’ DNA data is available for comparison to any Raw Data in the GEDmatch database, except DNA kits identified as being uploaded for Law Enforcement purposes.
Comparison results, including your kit number, name (or alias), and email will be displayed for ‘Public’ kits that share DNA with the kit being used to make the comparison, except that kits identified as being uploaded for Law Enforcement purposes will only be matched with kits that have ‘opted-in’.
‘Research’ DNA data is available for one-to-one comparison to other Public or Research DNA. It is not shown in other people’s ‘one-to-many’ results lists. The Raw Data that you uploaded is not made available.3
What this means, we are told, is that all public kits will be in Public + opt-out status until and unless the kit owner changes the kit to Public + opt-in status. A banner placed on GEDmatch’s landing page last night now reads: “EFFECTIVE IMMEDIATELY, ALL DNA KITS HAVE BEEN SET TO BE OPTED-OUT OF MATCHING BY LAW ENFORCEMENT. WITHIN THE NEXT FEW DAYS, WE WILL PROVIDE A MEANS FOR THE PERSON WHO UPLOADED A KIT TO OPT-IN FOR THAT KIT, IF THEY DESIRE TO DO SO.”4
The new system fully conforms to all legal definitions of informed consent — particularly in light of the candid admission in the terms that GEDmatch can’t promise there won’t be new non-genealogical uses of the site someone figures out in the future that nobody is even thinking of today — and to the provisions of the European Union’s General Data Protection Regulation (GDPR) as well.
And it’s a good, right, ethical decision. Doing as much as any website can to protect the trust of genealogists that their DNA data will be used only for the purposes to which they personally consent leaves the entire field on firmer ethical ground.
There is nothing whatsoever wrong with any individual’s decision to choose to allow law enforcement to use his or her data to solve crimes. Anyone who wants to will be able to make a DNA kit at GEDmatch Public + opt-in.
But there is also nothing whatsoever wrong with any individual’s choice not to allow such use. And those folks will be able to leave their kits as is, in the Public + opt-out status. This of course will also protect the data of those who aren’t aware of the issue, or no longer access GEDmatch, or have passed on without having the chance to make a choice about the use of their data.
What is wrong is having anyone who isn’t a judge and isn’t operating within the confines of the law and the Fourth Amendment taking on the role of making those choices for others.
Let me repeat something here: informed consent is the essential underpinning of ethical DNA testing and results-sharing.
As set out in the new DNA standards and ethical rules adopted by the Board for Certification of Genealogists, ethical genealogists do not make decisions for others, but instead make full disclosure of the risks and benefits and then “request and comply with the signed consent, freely given by the person providing the DNA sample or that person’s guardian or legal representative.”5 And it is now a written standard that “Genealogists share living test-takers’ data only with written consent to share that data.”6
This isn’t a new concept. The Genetic Genealogy Standards, widely accepted by the genealogical community after they were formulated in 2015, provide much the same limitation, that “Genealogists only test with companies that respect and protect the privacy of testers.”7
So this whole issue really isn’t about wanting to solve crimes or not.
This is all about choice.
Real choice.
Choice based on informed consent, on an active, opt-in basis.
The only truly ethical way to go.
Cite/link to this post: Judy G. Russell, “GEDmatch reverses course,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 19 May 2019).
SOURCES
- See Judy G. Russell, “Withdrawing a recommendation,” The Legal Genealogist, posted date (https://www.legalgenealogist.com/blog : accessed 19 May 2019). ↩
- “GEDmatch.Com Terms of Service and Privacy Policy,” updated 18 May 2019, GEDmatch.com (https://genesis.gedmatch.com/ : accessed 19 May 2019). ↩
- Ibid. ↩
- “GEDmatch Genesis home page,” GEDmatch.com (https://genesis.gedmatch.com/ : accessed 19 May 2019). ↩
- Genealogist’s Code of Ethics, Board for Certification of Genealogists (https://bcgcertification.org/ : accessed 19 May 2019). ↩
- Board for Certification of Genealogists, Genealogy Standards (Nashville, TN : Ancestry, 2019), 32, Standard 57, “Respect for privacy rights.”. ↩
- ¶ 6, Genetic Genealogy Standards (http://www.geneticgenealogystandards.com/ : accessed 19 May 2019). ↩
I was waiting for you to weigh in on this new development, Judy – thank you!
Could the CODIS DNA databases be engineered to utilize Gedmatch like matching or could a Gedmatch like database be built from the CODIS DNA database?
Yes, but they’d have to revamp the entire system.
With all the publicity about law enforcement investigators using DNA from various sites to solve crimes and some apparently using DNA without court oversight, could the method(s) used to obtain DNA from these databases be challenged by defendants and their attorneys? Does law enforcement provide the details of the procedure used to obtain DNA? I have serious concerns about the proper use and interpretation of DNA by law enforcement.
The problem is this: the evidence at trial is (or should be) the exact match between the crime scene sample and the suspect identified by fishing in our data pool. How that fishing was done can’t easily be challenged. Nobody except the defendant can be heard in a criminal case and the defendant doesn’t have the legal right to raise the privacy rights of anyone else.
There have been three cold cases solved using DNA in my local community in the last six months. At no time have the police or prosecutors provided any information stating how they protect the privacy of those whose DNA they used to get a “break” in the case. What safeguards are in place to protect the privacy of those individuals? It seems as if it is much like the “wild, wild West” at this time in the use of public DNA databases by law enforcement. It seems that strict guidelines need to be in place to protect those not involved in the commission of the crime but whose DNA was used to identify the culprit. Just my two cents–
This is a major concern of mine. Unwitting DNA “informants” should be protected at least as much as “confidential informants” by the law and their identities not disclosed until and unless a court orders it for compelling reasons.
This is the right decision but it was made too late for many of us who responded to their disregard for the TOS that we agreed to when we joined GEDmatch. I’m very glad for those who stayed, and am sure that Parabon is elated, though the database they will be searching at the onset will be a lot smaller than what is there now. I still remain skeptical about DNA testing companies at this point, which makes me sad but not really surprised.
Bravo, GEDMatch. Excellent solution as a pioneer in the field.
How long will yours and my DNA remain private? How long before the Supreme court steps in to make a ruling on using DNA in criminal cases taking away your right to privacy even to your own DNA? Lines have been crossed, arrests made, proving their case.
The fact that those lines have been crossed doesn’t mean the courts will go that way, Stan. If it ever happens that a decision does go that way, then IMO genealogical use of DNA will end.
Kudos to GedMatch for making this decision!
I deleted my DNA yesterday. I had the kit number well-memorized and everything. I will re-upload, but I will make it clear to my listeners that they have an absolute choice here, and that neither choice is wrong. I’ll also highlight the same thing I always do: that black test-takers are at increased risk of more dogged prosecution and harsher penalties if convicted than whites committing the same crimes; this is information I gained from the black community. Furthermore, errors can be made and DNA can be planted, just like any other evidence, so there is a lot to consider. But GEDmatch’s whiplash reversal was absolutely the only ethical thing to do. My question is: how many people deleted before this reversal was made public?
I don’t know that we’ll ever have a definite answer to that.
The horror of it all! Police being able to crack cases of terrible crimes by using DNA!
What in the world are people afraid of?? If it was your family member who had a crime committed against them, wouldn’t you want the police to have every means available at their disposal to catch the criminal? And if your family member committed a horrible crime, should we try to shield them?
This is insane.
You like the idea of having the police able to access your DNA? Great! Opt in! Your genie buddy doesn’t like that idea? Great! She opts out! What’s insane is when we insist we have the right to decide for someone else.
I feel that anyone who does opt-in IS making the decision for someone else – their entire genetic family. China right now is using DNA to track down some of their minority populations (Uighurs) to arrest them, requiring entire villages to be DNA tested. Can you imagine what Germany would have done with DNA in the 1930s instead the Ahnenpass books all were required to have. Food for thought.
I find it disturbing that so many people don’t seem to understand that each individual has the right to decide whether she wishes to consent or not. It makes me wonder how many people actually discuss opting in or out with the owners of the kits they manage. I’m having a hard time deciding whether I can trust GEDmatch when we weren’t told until months after the fact that there had been a violation of the terms of service. No, I haven’t committed a crime and I’m darned tired of people implying that anyone who has concerns about consent is a criminal!
Judy, I totally appreciate that you keep us up to date on these important issues and go further to explain the ramifications of any important and often find details. Regards Fran
Exactly we all have the right to choose, it should not be decided for me or any of us. Having 20+ test having to go back and forth to the test takers after assuring them of one thing and then have the company making decisions for us is not right.
I know that police departments all over the world have got on identified bodies. I am hoping that they have taken DNA from each of them and perhaps a GED can help find their loved ones.
I will certainly shift to neutral, at least until we have time to see if GEDmatch will stick with this and not change it again because some police department comes knocking on their door with a story the site owners find compelling.
With GEDmatch going to OPT-OUT by default, are you going to withdraw your previous withdrawing a recommendation? If not, what more do you feel GEDmatch needs to do in order to recommend them again?
Happy that GEDMatch corrected their mistake. Why they didn’t do this sooner instead of waiting for an explosion across genealogical circles is beyond me. But at least they finally did the right and decent thing by giving users an opt-in and opt-out feature. NOW is anyone at Family Tree watching this? Just wondering how many folks have left Family Tree?
Thank you for your work in bringing the heat on this issue. I believe you and the “DNA Geek” do our community a tremendous service.
Perhaps off-topic, but do you ever wonder what happens to the DNA collected as a result of a family tree-generated “lead”? At the press conference where Parabon announced it solved the Angie Dodge case using Gedmatch; the chief genealogist mentioned 6 possible suspects were identified via a family tree, followed and their DNA collected from discarded items; but none of the men matched the crime scene sample. So do their DNA profiles go into some database and is kept there for “future use”? If they don’t even know their DNA has been collected and analyzed; they certainly wouldn’t know to check to ensure it has not been stored in some database. If I were a man related to the person identified as the perpetrator of this crime: I’d have cause for concern; as I might have been unwittingly drafted into some future familial DNA search situation I knew nothing about.
That’s a major concern, for sure.
If I’m reading these new rules correctly, only kits opted-in can be compared directly with kits uploaded by law enforcement. Let’s say LE finds a few good matches to a kit in the opt-in database. There’s nothing to prevent them from taking those kit numbers and searching them against the general GEDmatch database including opted out kits, right? So what’s the difference with these new rules? People who opt out can still be providing secondary leads without consent.
We haven’t seen exactly how this is going to work. Your concern may be a real one, or it may be that someone logged in on an LE account is limited to that.
I have no problem with police having acess to mine. I often wonder about people from witness protection and about kids who were taken and now seeking their DNA without knowing they were kidnapped. I do not have anything to hide. I do find embarassing things on genealogy sites like today when I read the a cousin’s family member had several slaves in the 1700s – History us what it is.
The problem with DNA is that it often reveals what’s current, not what’s history. It tells a story that sometimes isn’t ours to tell. And people need to know that and choose for themselves if they’re comfortable with that or not. Your decision is just fine for you — nobody but nobody can say a word about it. But just as you don’t want anyone making the decision for you, others are entitled to make their own decisions and not have one imposed on them.
The GEDMatch decision to require an OPT-IN for all law enforcement searches is a devastating blow to thousands of family members who hope that forensic genealogy may help move their unsolved murder, rape and sexual assault investigations forward, sometimes waiting decades for answers.
If you are using a DNA database like Ancestry and 23 and Me, we urge you to share your DNA data with GEDMatch. Once you are on GEDMatch, we urge you to OPT-IN to law enforcement searches. Finally, we call on Curtis Rogers and GEDMatch to reconsider their decision. 200,000 cold case families are waiting for answers.
Bill Thomas, Brother of Cathy Thomas, Colonial Parkway Murders
As I’ve said to you elsewhere, I absolutely understand your views on this and frankly might not be as calm as you are were I in your shoes. But no matter how many people want/need answers, our society has made a fundamental decision about how we proceed when it comes to balancing the interests of individual liberty and the societal interests in criminal investigations: individual liberty can be compromised ONLY in one of two ways — informed consent or court order. So it’s absolutely the right thing for you and others in your position to do to urge people to upload and to opt in and to share their data. Convince them to make that informed choice and give informed consent. But asking to have a decision imposed on others in any other way absent a court order is wrong.
Thank you, Judy. That is it in a nutshell
Thank you for your kindness, Judy.
Bill Thomas, Brother of Cathy Thomas, Colonial Parkway Murders
You did read the above blog didn’t you? He specifically said opt-out is window dressing. If you don’t delete your data completely your basically saying opt-in. I understand you completely want to promote all members to do so on their own accord and you feel its noble. Personally I trust some police as much as I do politicians or the criminals themselves, I truly don’t see all officers as noble. Remember the Golden State Killer was a cop for crying out loud. I recommend all to delete their data. Its not like in 40 years of family research I didn’t learn the old fashion way. Graveyards, Microfilm, archives and alike. So many people have taken this hobby up in front of a computer screen in their office in their underwear. If you want to try and force me to ignore my 4th amendment as you have I say get out of your office and head to the archives.
In my opinion the default should have been opt in, not opt out. But, then, I have looked into the faces and heard the cries of victim’s families.
I’m very sad that this subject has divided our genealogy community. I understand both sides have the right to their opinions.
I hope this can be mended. Even more than that, I pray with all my heart that no one loses their life or is the victim of a violent crime directly because of this change in policy.
Its this open door data policy as to why I was pulling teeth on getting family members to so much as talk to me. I remember their look on asking they do DNA. Sadly I say if I could go back in time I never would have done DNA its not worth it. The open door policy of members has only cemented that opinion. As the writer stated their is no such thing as opting in or out, there is only your blessing or not your blessing. True opting out is completely deleting your data and kit and profile. As I have done
I’ve been thinking about all of the people that sit in jails/prisons that are falsely imprisoned. Will LE actively use DNA databases to go back to those cases and work as diligently to free those victims as they are doing to convict for victims of unsolved cases who aren’t living? One group has no voice, the other has very little voice if any. Perhaps they will do nothing to correct those mistakes for fear of lawsuits. Those who are falsely accused of crimes and imprisoned are losing years or lifetimes sitting in prison and are living victims. They deserve the same consideration and benefit of this tool. They are innocent victims who were perhaps at the wrong place at the wrong time, coerced, or framed for crimes they didn’t do. They would be innocent — living — victims of rape, beatings and unspeakable other crimes against them while incarcerated, some have likely died in prison at the hands of other true criminals in prison. Will LE go try to find their killers or since they are prisoners, it doesn’t matter any longer? The situation we are now trying to work our way through isn’t as simple as opt-in or out. It’s also in its infancy as DNA testing was in the beginning for genealogy. It’s an amazing tool in the toolbox but is that toolbox now turning into Pandora’s Box? For many, it is a wonderful means to an end for unsolved crimes of those who are dead. We must also remember that no system is perfect and that is why the bottom line is each individual’s right to give informed consent for our own personal DNA and no one else without being ridiculed. Has history not taught us yet how incredibly stupid it is to be naive in giving up rights we have fought so hard to obtain? Yes, let’s fight for the innocent victims, ALL innocent victims, not a select group but do it in a smart manner with great thought and consideration of all of the consequences that can come from giving uninformed consent and giving up rights that we may not be able to get back. I will be brave enough to say I was the victim of a violent, heinous crime nearly 50 years ago. The criminals weren’t caught. I doubt I’m the only person in this position in this world. Given the choice, I would not want that horror brought back into my life now, my beautiful, healthy life that I’m so proud to be living just because my DNA might match someone. I’m glad I have the right to make my own choice and no one else has the right to make it for me. It’s a personal choice we each have the right to make without anyone else, who likely doesn’t know our reasons, saying a single negative word about our choice.
Unfortunately, the choice set up by GEDmatch turns out not to be much of a choice at all if you want to opt out. Only research kits are really protected, at least for now. See today’s post.
Judy, thank you for your expert advise! You’re the best! Cheers!
Just deleted off my kit, I can’t support a site that ignores the fourth amendment. Sadly its just not GEDmatch that is clueless about the constitution but many representatives and law enforcement. If they won’t follow the law then I must be forced to take the only route out delete my data.