Are we surrendering too much?
Genealogy has always been a sharing collegial avocation.
All of us, The Legal Genealogist included, learned as baby genealogists that if we wanted to find those elusive ancestors hiding amidst the branches of our family trees, we needed to work together with our relatives — close kin and cousins.
Then along came the DNA revolution and our definition of “cousins we might work with” became a lot broader. Not just first and second cousins, but third-fourth-fifth and even more distant cousins identified through evidence hidden deep in our genetic code. And we learned — and are still learning — how to work with them to find our family.
But now… now we find that to get the very most from this new tool… we may end up working together with a group we had no idea we’d end up sharing with: the police and other governmental authorities.
And with the aim of finding our family for an altogether different purpose than bringing a family together.
Perhaps with the aim of allowing that evidence hidden deep in our genetic code to identify a relative somewhere out there in our family tree who has been lost to the family.
Few if any in the genealogical community would object to the use of our DNA to identify a John or Jane Doe lying unclaimed in a morgue somewhere for lack of identification.
Perhaps with the aim of allowing that evidence to identify a relative who was lost to the family through adoption or abandonment, and now can be reunited at least with his or her identity and medical history even if the biological family doesn’t want an ongoing relationship.
Few if any in the genealogical community would object to the use of our DNA to allow adoptee to know where they came from, what their roots are.
And now… now… with the aim of allowing that evidence to identify a relative who is being sought by police or other government authorities for doing something that’s defined by those authorities as worthy of investigation.
And therein lies the rub.
We can all sit back and rejoice in the use of DNA evidence to take killers off the streets. The arrest of a suspect in California’s long-ago Golden State Killer case after DNA from at least one of the crime scenes was entered into a genealogical database may — if the evidence holds up and a jury is convinced — give closure to many families who suffered enormously during that violent crime spree years ago.
Few if any in the genealogical community would disagree with the characterization of murder as the kind of wrong that’s clearly worthy of investigation. It’s what the law calls malum in se, “a wrong in itself; an act or case involving illegality from the very nature of the transaction, upon principles of natural, moral, and public law.”1
And, it appears from public comments within the genealogical community, many are willing accept unbridled, unsupervised, unregulated police access to their DNA results in order to bring killers like the Golden State Killer to justice.
“The end justifies the means” is the rallying cry and that’s enough for many to set aside the notions underlying the Fourth Amendment and the idea that a detached and neutral magistrate’s considered judgment on whether the evidence justifies issuing a search warrant should stand between the people and the power of government.
But there’s another category of wrong. It’s what the law calls malum prohibitum, “a wrong prohibited; a thing which is wrong because prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden…”2
Two weeks ago, the remains of a fetus were found in a Georgia sewage system. The age of the fetus puts it right on the edge of Georgia’s abortion law — if the fetus was 20 weeks and one day, rather than 19 weeks and six days, and if it was aborted and not the result of a spontaneous miscarriage, then and only then would the fetal death be a crime. And the coroner and Georgia Bureau of Investigation are conducting DNA testing to identify the mother.3
Since DNA testing of the remains could take eight months to a year, according to Georgia authorities, the explanation that the mother needs to be identified to make sure she’s healthy and safe or to allow her to inter the fetus4 rings hollow. After all, nobody’s suggesting tracking down the father to allow him to inter the fetus. Clearly, this is being treated as a crime — a wrong worthy of investigation.
My guess is that only some of those who thought “the end justifies the means” would welcome the use of their DNA results to track down the mother or the parents in the Georgia case.
But the problem with accepting unbridled, unsupervised, unregulated government access to DNA results is that there’s no principled way to distinguish between Wrong A and Wrong B. Buying the notion that “the end justifies the means” opens the door to the use of our DNA results any time something is defined by government somewhere at some time as a wrong worthy of investigation.
We can’t accept government use of a genealogical database to investigate one kind of criminal case without any kind of judicial oversight without giving up the argument that it shouldn’t use it without judicial oversight in another kind of criminal case.
And we may not always agree with the definition of what’s criminal.
I am deeply concerned that the broader genealogical community isn’t talking enough about the risk that “the end justifies the means” is a recipe for abuse. That governments and their investigative arms aren’t always looking for Golden State Killers.
And I am reminded in considering this issue of the words of Lutheran Pastor Martin Niemöller about the risks of silence in an earlier age:
First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.5
This is a conversation our community had better have… or find that the price of sharing is the surrender of our own privacy and, through the evidence in our genes, of the rights of family members targeted less for what they’ve done than for what they are.
SOURCES
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 746, “malum in se.” ↩
- Ibid.,“malum prohibitum.” ↩
- See e.g. Nefeteria Brewster, “Fetus identification could take up to a year, says coroner,” Augusta (Ga.) Chronicle, posted 9 May 2018 (http://www.augustachronicle.com/ : accessed 27 May 2018). ↩
- See Russell Brandom, “Police are using DNA testing to track down a fetus’s mother,” The Verge, posted 10 May 2018 (https://www.theverge.com/ : accessed 27 May 2018). ↩
- “Martin Niemöller: ‘First they came for the Socialists…’,” Holocaust Encyclopedia, United States Holocaust Memorial Museum (https://www.ushmm.org/ : accessed 27 May 2018). ↩
Thank you! You’ve articulated so clearly the reason for my unease with the open and free use of GEDmatch by the police.
There are good and substantial reasons that the police are required to obtain warrants. Those laws were put into place for good reasons and we shouldn’t forget that just because we deem the use good in this instance.
Thank you for expressing your concerns so clearly. I share them. Blind trust in our government – a government constructed with checks and balances – is unwise. At a minimum we need court orders for these searches, just as we have for wire taps and traditional search warrants.
I am a great fan of the Fourth Amendment… there’s a reason why we have it…
Thank you, Judy. On this Memorial Day weekend, it is worth remembering that our forefathers who wrote the 4th Amendment into our US Constitution as part of the Bill of Rights, did so as a result of their own experience of abuses practiced by a high-handed government which believed the ends justified the means when it came to dealing with the citizens of their colonial possessions. During the Cold War it was often pointed the signsture difference often pointed out between the American way of life and that of the USSR was the fact that “they believe the end justifies the means and we don’t — we demand that both the ends and the means be justified in their own right.”
Does the genealogical community simply accept “the end justifies the means”? I don’t think so. In response to this issue, GEDmatch has changed their terms of use. The issue now is either accept or delete your profile. For some (?) the benefit of the service may outweigh the loss, otherwise the rest of us loose out anyway.
Some have said precisely that, with those exact words: they don’t care what the collateral damage may be. And people who uploaded to GEDmatch before the change in the terms of service, whose kits may be managed by others, who may even be deceased now… how do they consent to this use?
We are in sync with our concerns. For the first month after the widespread news reporting regarding the Golden State serial killer capture, I saw my matches on GEDmatch dwindle down. Then when the updated policy was posted I went from being on the fence to also removing myself. The kicker was the acknowledgment that GEDmatch could be sold right along with my data. One, I am uneasy about the use of my data by any agency other than for genetic genealogy research. Two, I do not want my freely contributed data sold for a profit and for it to end up who knows where without some sort of accountability. And three, I do not want my freely contributed data to suddenly made available back to me for a monthly subscription cost which could happen with new owners if GEDmatch was sold.
Thank you so much or writing this, and clarifying the tumbled thoughts I’ve had since the first use of GEDmatch to find the California murderer.
I just looked up the 4th Amendment. If there is a way to add consent or deny access to warrant or warrant-less searches on all the DNA matching sites, at least we would have a choice.
Will you please write further about what each of us can do to get Ancestry, Family Tree, 23 and Me, and all the others to put some legal constraint on open access to law enforcement for whatever purpose.
What if DNA was used to identify someone who was peacefully protesting, and left a soft drink can where it would be picked up by police?
Questions: 1-If any database (not just Gedmatch) is open and free to the public, how can one legally bar law enforcement from using it? 2-Medical records, bank records, etc., can be subpoenaed, how does one legally bar law enforcement officials from the subpoena of DNA, genealogical or otherwise? 3-How does the procedure used to collect DNA by law enforcement in this particular scenario differ from the use of fingerprints or other evidence that may be collected from any given crime scene? 4-Does an individual who hasn’t submitted their DNA to one of the testing companies (and doesn’t want to for any number of reasons) have the right to prohibit others who are related to them from submitting their DNA? BTW, I haven’t uploaded my DNA to Gedmatch because I just wasn’t comfortable with the idea. This is a decision I made 3 years ago.
One issue here is the difference between fingerprints (identification evidence for one person only) and autosomal DNA (evidence as to many people in the family), and I have no idea how that difference can be addressed if police are allowed to use these databases without oversight.
This is a very complex issue with many different thoughts and opinions. I posed these questions because I think they and many others need to be carefully considered as we wade into uncharted waters. I do not think the end justifies the means EVER. A knee-jerk reaction, pro or con, is counterproductive to a good workable solution. I just hope that genealogists will be part of proposing that solution. Perhaps a venue can be developed that would be conducive to respectful and thoughtful discourse.
It’s important to distinguish what happened in the Golden State Killer case from the obtaining of such things as medical and banking records by subpoena, for the simple reason that in the GSK case it appears law enforcement did not bother to try to get a subpoena (which would have required them to justify what they wanted to do to the satisfaction of a judge before proceeding to actually do it).
Instead, it appears they did an end run around the subpoena process by creating their own DNA results file from a sample taken from a crime scene and uploading it to GEDmatch as if it came from an individual interested in exploring his or her own personal ancestry for genealogical purposes, taking advantage of the absence of an explicit prohibition against their conduct.
If the investigators had sought a subpoena or other court order directing GEDmatch to assist them, they probably could have gotten one in the GSK case, even if GEDmatch had presented the judge with a formal list of objections (which GEDmatch ordinarily would have been entitled to do as part of the process). The investigators appear to have decided to skip that step in favor of barging straight ahead to the goal on the basis of their own internal oversight procedures without involving the kind of judicial oversight that would have been necessary to gain acces to medical or bank records.
The question for all of us to consider is whether this shortcut is acceptable (not only in this case, but also in other cases where the justification may be far less compelling) in a country which has always believes ordinary people are entitled to be treated with respect and fairness and be safe from overreaching by those wielding the extensive special powers granted to law enforcement officials in order to allow them to protect us. Do we want to continue to be a nation which believes in justice achieved by the rule of law, or by the philosophy of the ends-justify-the-means attitude of “whatever works just as long as its no skin off my personal nose.”
Thank you, Judy and Suzan. I feel (and being torn apart) the same way. ToS violation won’t stop a determined person, if the payoff is seen as worth the risk. I don’t understand how the right to forget can be applied to genealogy databases. I think the birth, death, marriage are facts that are not copyrightable. It would not be possible to prevent others from uploading some facts about me to their family trees. Genealogy is the canary in the coal mine, as it sits right on the border between the private and the public, and there seem to be continuous erosion of the private, perhaps to a dismal future described in “Gattaca”.
Can someone please clarify whether the terms of gedmatch have been changed to preclude the use of “fake” profiles by law enforcement on that site to allow them to use it to identify potential criminals whether the crimes charged are felonies or even lesser offenses?
The terms require that a law enforcement agent uploading a kit represent that it is “DNA obtained and authorized by law enforcement to … identify a perpetrator of a violent crime against another individual” and defined violent crime as “homicide or sexual assault.” And if you think that requirement will stop law enforcement agents from uploading kits that don’t meet that definition, I have a lovely bridge to sell you… cheap…
You can’t sell that bridge, it’s mine. All offers to purchase will be taken under consideration…..
🙂
Judy, as you pointed out, the overwhelming genealogical community reaction to the use of DNA to entrap the Golden State killer was “The end justifies the means” – and this disturbed me. I hear this same kind of rather careless response to the proliferation of CCTV cameras in England by the British family and friends of my British-born husband. We need to continue having these conversations and not forgetting that there should be a middle ground here.
The word “entrap” has a very specific meaning in the law (“the action of tricking someone into committing a crime in order to secure their prosecution”) and isn’t applicable here. Arrest a suspect, yes. Entrap, no.
Thanks for the clarification of the use of the word “entrap.” What other word would you suggest?
“Snare” would work in that context!
Does this only apply to sites where dna can be uploaded or do you think all dna sites are a concern?
It seems to be pretty much limited to the third-party sites. From the TOS of the testing companies:
MyHeritageDNA: …using the DNA Services for law enforcement purposes, forensic examinations, criminal investigations and/or similar purposes, without a court order and without prior explicit written permission from MyHeritage, is strictly prohibited.
Family Tree DNA: You agree to not use the Services for any law enforcement purposes, forensic examinations, criminal investigations, and/or similar purposes without the required legal documentation and written permission from FamilyTreeDNA…
AncestryDNA: Any saliva sample you provide is either your own or the saliva of a person for whom you are a parent or legal guardian…
LivingDNA: You undertake… Not to use the results of any Living DNA ancestry test that we provide to you for any purpose other than for ancestry research, [and] That you are an individual, are aged over 18, and that the sample you provide will be your own sample, or the sample of a child in respect of whom you have legal entitlement to take a sample and to submit it for testing.
Thank you Judy! That’s a relief!
TOS are no impediment:
“Some have wondered if the police using a genealogy site might be criminal if it violated the site’s terms of service under the Computer Fraud and Abuse Act. But the answer to that is clearly no, as the statute provides an exception for law enforcement investigations in 18 U.S.C. 1030(f): “This section does not prohibit any lawfully authorized investigative . . . activity of a law enforcement agency of the United States, a State, or a political subdivision of a State[.]” And that’s even assuming that violating terms of service can be a crime anyway, an issue on which there is a circuit split and in which the Ninth Circuit (which of course includes California) has said violating terms of service is not a CFAA offense. See United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc).”
http://reason.com/volokh/2018/05/02/tentative-thoughts-on-the-use-of-geneolo
The issue is not only the means but the ends. I feel the citizens of Georgia, for example, need to think through what they are asking of their law enforcement agencies.
My husband spoke of the enforcement of conscription here in Australia in the 1960s and 70s. For those who were avoiding conscription to Vietnam they were fortunate Government systems at the time were inefficient; they would not be so inefficient now. Although DNA would probably not come into it, my point is to invoke an example of laws that affect only a small proportion of the population. Citizens need to think about laws being enacted in their name that have harsh consequences for specific groups, whether mothers of Georgia or those young men who do not wish to fight in a war.
Thanks Judy – once again you have clearly defined a growing issue we all need to consider. Having done an Ancestry DNA test I was considering uploading to GedMatch – now I have more closely examined their terms and conditions and changed my mind. Maybe when this issue has been more defined and discussed I will reconsider. I’ll be following the discussion.
A power unchecked will soon be in your backyard!
Judy, great article! We should all be concerned what ANY govt or “authority” can do & will do. That is why my ancestors came to the New World. A right to privacy should be of our upmost concern. History shows us what can happen when a dictator comes into power. (e.g. Hitler and the atrocities committed on the Jewish people). What if someone in power decides my line or someone elses’ line needs to be made extinct? We must carefully protect our freedoms & we must teach our children to protect their own freedoms. On this Memorial Day weekend I give thanks for those that safeguarded our freedoms.
In the Netherlands, police can only use methods that are whitelisted. If they want to use a new method, they need to get court approval.
I do not like that American police can access the DNA databases without judicial oversight. If it was only after a court order, I would feel differently. This use is not why I uploaded my DNA.
Say there was a PoliceDNAMatch.com where you could voluntarily upload your DNA to help police solve crimes. I bet that several in our community would do that, and that others would not. And that some of those who wouldn’t, are on Gedmatch. This use should be something that people explicitly consent to.
That’s what GEDmatch is, going forward, Yvette. Anyone uploading now is told flat out that the site may be used for “Familial searching by third parties such as law enforcement agencies to identify the perpetrator or a crime, or to identify remains” and requires your agreement that “You understand that future genealogical and non-genealogical uses may be developed, including uses that GEDmatch cannot predict or foresee.” My singular issue is with those who had already uploaded before, and are now having to make a much harder decision on whether to remove or privatize a kit. (Harder because, in some cases, the person whose data was uploaded has passed on and can’t be consulted…)
Great article I glad someone is publicly voicing concern rather than admonishing people for not wanting to to be open. I was feeling rather alone in my views.
Can you please write more about whether uploading your DNA to a website is considered abandonment as some recent published articles suggest.
Also your recommendations for action for those of us who are not comfortable with non genealogical use of our DNA.
I personally deleted all the DNA kits I manage from Gedmatch after GSK but I still don’t feel comfortable. It’s a shame because genetic sources can sometimes be the only clue to narrow down the search for that elusive document that can confirm your hypothesis or reunite family members.
Building on your concern “that the broader genealogical community isn’t talking enough about the risk that ‘the end justifies the means’ is a recipe for abuse.” What can we, genealogists who care, do about it? Is there a place for genealogists to explore the privacy ethics of DNA with the goal of developing guidance and best practices for the industry? Might NGS, FGS, or BCG be willing to establish a subcommittee, analogous to RPAC, that is focused on DNA privacy? Please keep us up to date on DNA privacy developments.
BCG is strictly a certifying organization so not a good “fit” for this. But either NGS or FGS might be a possibility. The bigger issue is, who has time to lead it?
The Collective Benefit of Sharing.
I am not a genealogist, but I am someone who will be forever grateful to genealogist.
My sister (age 18) and her boyfriend (age 20) were murdered 31 years ago in Washington State. Prior to May 2018, no person had ever been arrested or charged regarding their murders; a true cold case. In May 2018, the police were able to arrest a suspect based on DNA evidence left at the crime scenes. The police were lead to this suspect through the use of a public genetic genealogical database.
We have a collective obligation to share our DNA if this will lead to a safer and more civil place for our families to live and prosper. This will be the collective benefit to sharing our DNA.
The price of not sharing will be to waste this amazing breakthrough technology in identifying and locating perpetrators of serious criminal offences, such as murder and rape.
The price of not sharing will be to allow vulnerable citizens to be killed or sexually assaulted when society has the means to use this technology for a significant deterrent to perpetrators.
The price of not sharing will be our knowledge of our own failure to use this new technique to better safeguard vulnerable members of our society, and our failure to make our communities safer for all.
I agree the use by government for purposes other than serious crimes does represent a risk to the appropriate balance of power between the people and government. However I believe this intrusion on our individual rights is appropriate and justifiable for the higher purpose of society’s collective safety.
I implore genealogists to embrace this new application of their skills, to welcome its positive effects on making our society a safer, and more civil place to raise our families, and to bring renewed hope to victim’s families for justice.
I can’t begin to understand either the despair of losing a family member to violence, nor of the elation of hoping that the one responsible may finally be brought to justice. I have no issues with the use of DNA evidence, or any kind of evidence, lawfully and ethically acquired, to bring families of victims from A to B. It’s solely in ensuring that the evidence is lawfully and ethically acquired where I may draw the line and to address the very real issues of the potential misuse of genealogical databases for investigations that are not at all like your case… and where you may not be so comfortable with the possible outcomes.
I wish you and your family whatever comfort you may find in the legal processes to come.