The privacy fight rages on

Laws proposed on opposite sides of the country take opposite approaches to law enforcement access to genealogical DNA testing databases.

The different proposals point out how genealogical consumers — and even genealogical testing companies — are now often caught in the middle of the fight over consumer privacy.

On one hand, a proposed law is now before the Utah Legislature that would appear to be designed to permit law enforcement to bypass all of the privacy constraints in place at genealogical DNA testing companies.

Poorly written and unclear in the scope of its application, the proposed law would give police authority to “request a genealogy database search from … a genetic genealogy company” — but does not require court approval by way of a search warrant or compliance with existing rules at companies like Ancestry that prohibit law enforcement use of its database without a court order.¹

The proposal, House Bill 340, is sponsored by Republican State Representative Steve Eliason of Sandy, Utah, and was the subject of a hearing last week before the Utah House Law Enforcement & Criminal Justice Committee. Ancestry’s head of governmental affairs, Ritchie Engelhardt, appeared at the hearing and opposed the bill. Without a warrant, he said, “Law enforcement would be seeking access to go fishing an entire database with potentially millions of consumers’ data and not the data particular to a person suspected of a crime.”²

On the other hand, in Maryland, a proposed bill would require every DNA testing company to require express advance consent by the consumer to any use of the consumer’s test data by way of “an affirmative response … to a specific, discrete, freely given, and unambiguous notice” and bar any use of test results “beyond the primary purpose of the genetic testing product or service requested by the consumer” unless the company obtained express consent.

The proposal, which would be called the Maryland Genetic Information Privacy Act, was introduced in the Maryland House as House Bill 866³ and in the Senate as Senate Bill 766⁴ by Democratic Delegate Lily Qi and Senator Charles E. Sydnor, III. It would also require each company to “establish legal policies and processes for disclosing genetic data to law enforcement or another government agency without a consumer’s express written consent” and then protect the privacy rules of companies like Ancestry.

These opposite, and utterly unequal, proposals highlight the continuing battle over consumer privacy on one hand and public safety on the other. They leave consumers with no clear idea whether their privacy interests would be dependent on where they live or the willingness of the testing company to live up to privacy promises made when they tested.

They also put the testing companies in the middle: can a testing company disregard the law of one state if abiding by it would make it run afoul of the law in another? What about when the laws of one country in which the company does business conflict with the laws of another?

And they muddy the waters when it comes to the individual rights of individual testers to make their own decisions about what they do and don’t want done with their genealogical testing data and to have those decision honored in the absence of a court order to the contrary.

For all of these problems, The Legal Genealogist has no solutions.

Just a heads-up that opposite and unequal proposals like these mean the fight over the privacy rights of DNA testing consumers is far from over — and we’re all caught in the middle.

Cite/link to this post: Judy G. Russell, “Opposite … and not equal,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 20 Feb 2022).

SOURCES

Note: A big hat tip to the IAJGS Public Records Access Alert mail list for keeping abreast of these and other issues with respect to privacy and records access. Anyone who wants to stay informed should subscribe to the Alerts.