Changes in privacy rules and terms and conditions
Yes, Ancestry.com has changed its terms of service and privacy statement.
Yes, like most every other customer, The Legal Genealogist got the email about the changes.
Yes, probably unlike most every other customer, The Legal Genealogist has carefully read both documents and compared them to prior versions.
And, yes, there are changes you should be aware of.
But…
No, for the most part, there’s nothing to be truly concerned about.
The major impetus for the change is a change in California state law. It’s called the California Consumer Privacy Act (CCPA) and it took effect this summer.1 You can think of it as a one-state version of the GDPR — the European General Data Protection Regulation — that we all struggled with when it took effect two years ago.2
The statute gives California residents new privacy rights including “The right to know about the personal information a business collects about them and how it is used and shared; The right to delete personal information collected from them (with some exceptions); (and) The right to opt-out of the sale of their personal information…”3 And it applies to any business with more than $25 million in annual revenues — whether it’s in California or not — that do business in California.
And since Ancestry both has offices in California, serves customers there, and does more than $25 million in business, it’s covered.
So… the big change in both the Ancestry Terms and Conditions and the privacy statement, entitled Your Privacy — which took effect on Wednesday, 23 September 2020 — is to add language “to address requirements under the California Consumer Privacy Act (“CCPA”)”.4 As a matter of fact, the privacy statement includes a whole section entitled “California Resident Additional Privacy Statement (California customers only).”5
There’s not a lot different in that section, but it sets out in detail how Californians can exercise their rights under the CCPA. So if you’re from California, read section 17, “California Resident Additional Privacy Statement (California customers only).”
For the rest of us, the changes are mostly in the organization of both documents — both now have a table of contents, to make finding specific parts easier — and to some of the language.
In the Terms and Conditions, an Introduction spells out that the terms apply to “any of the Ancestry websites, services, and mobile apps that link to these terms—Ancestry®, AncestryDNA®, AncestryHealth®, Newspapers.com™, Find a Grave®, Fold3.com®, Archives®, and WeRemember®—as well as other related brands …” and to “(a)ny new features included in the Services in the future…”6
The document then goes through a lot of language clean-up that’s generally insignificant. In section 1.3, for example, the language used to read in part “you agree … To comply with all applicable laws” and it now reads “you agree that you will … Comply with all applicable laws.”
There is some new clarifying language that is important:
• The terms and conditions now add an important warning in unequivocal terms as to any form of genealogical research: “When using our Services, you may discover unexpected facts about yourself, your family, or your health (e.g. you may discover an unknown genetic sibling or parent, surprising facts about your ethnicity, unanticipated genetic test results, or unexpected information in public records). Once discoveries are made, we can’t undo them.”7
• DNA results from Ancestry may not be used “in any judicial proceeding.”8
• As to content from Ancestry that is in the public domain (the images of census records, for example), users must now “obtain (Ancestry’s) written permission if you want to use more than a small portion of individual photos and documents that are Public Domain Content.”9
• All terms applicable to the AncestryHealth service have been combined in a new section 12.10
• The terms can be modified at any time, effectively immediately if the changes are those “addressing new functions in the Services or changes made for legal reasons” or effective 30 days after being posted for all other changes. Notice of changes will be made “by posting information through the Services or via email.”11
And then in the privacy statement there are some language changes that are important too:
• Ancestry now expressly states that “Information about deceased persons is not Personal Information under this Privacy Statement.”12
• Ancestry specifically suggests that users creating a profile “consider limiting this information and using a username that is different from your real name to protect your privacy.”13
• The privacy provisions can be changed at any time, but the new version deletes the provision that mere use of Ancestry services after a change in the provisions will be proof of consent to the change.14
Bottom line: in my opinion,15 there are clearly some language changes to be aware of, but — as far as I can see — nothing truly shocking or requiring anything of an “oh-my-gosh-the-privacy-sky-is-falling” reaction.
Cite/link to this post: Judy G. Russell, “Ancestry updates its terms, 2020,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted date).
SOURCES
- See generally “California Consumer Privacy Act (CCPA),” State of California, Department of Justice, Office of the Attorney General (https://oag.ca.gov/ : accessed 25 Sep 2020). ↩
- If you don’t remember, you can refresh your recollection. See Judy G. Russell, “The casualties of GDPR,” The Legal Genealogist, posted 20 May 2018 (https://www.legalgenealogist.com/blog : accessed 25 Sep 2020). Followed by “The GDPR, you & me,” posted 21 May 2018; “Cutting cookies,” posted 22 May 2018; “Delivering the (e)mail…,” posted 23 May 2018; “A GDPR favor to ask…,” posted 24 May 2018; and “Enough with the GDPR!,” posted 25 May 2018. ↩
- “California Consumer Privacy Act (CCPA).” ↩
- “Summary of Changes,” Your Privacy, effective 23 Sep 2020, Ancestry.com (https://www.ancestry.com/ : accessed 25 Sep 2020). ↩
- Ibid., §17, “California Resident Additional Privacy Statement (California customers only).” ↩
- “Introduction,” Ancestry Terms and Conditions, effective 23 Sep 2020, Ancestry.com (https://www.ancestry.com/ : accessed 25 Sep 2020). ↩
- Ibid., §1.3,“ Use of the Services.” ↩
- Ibid., §1.4, “Additional Terms Applicable to Use of DNA Services.” ↩
- Ibid., §2.1, “Ancestry Content.” ↩
- Ibid., §12, “AncestryHealth® ADDITIONAL TERMS AND CONDITIONS (US Customers Only).” ↩
- Ibid., §11, “Miscellaneous: Modifications to these Terms.” ↩
- §1, “Introduction,” Your Privacy, effective 23 Sep 2020, Ancestry.com (https://www.ancestry.com/ : accessed 25 Sep 2020). ↩
- §3, “What Personal Information Does Ancestry Collect From You? : Profile Information.” ↩
- §13, “Changes to This Statement.” ↩
- You remember the “this is not legal advice and I’m not your lawyer” disclaimer I give every year, right? See Judy G. Russell, “Rules of my road: 2020,” The Legal Genealogist, posted 2 Jan 2020 (https://www.legalgenealogist.com/blog : accessed 25 Sep 2020). ↩
First of all, Judy, thank you so much for always doing this. Although we each need to read the terms for ourselves (and I do), your posts bring clarity and help me to determine what is earth-shattering and what is not.
I find myself with one concern. The terms now state, “As to content from Ancestry that is in the public domain (the images of census records, for example), users must now “obtain (Ancestry’s) written permission if you want to use more than a small portion of individual photos and documents that are Public Domain Content.”
What exactly is a “small portion,” and who determines that? Is is 5, 10, 50?
For those of us who may use images from Ancestry in our presentations, will we now need to get permission from them, when we get to a certain number? I‘m feeling some kind of way about that one, especially since I pay for the access to those digitized public domain documents.
What say you?
Thanks,
Renate
I use Ancestry images in my presentations all the time and am not even a little bit concerned. Think about it this way: a typical presentation will have 60-125 slides. Assume you have an image from the 1790 census on every slide. Is that a small part of the 1790 census? Considering that the 1790 census took up 12 rolls of microfilm at NARA, I can’t imagine it could be anything but a small part. What this is really aimed at is folks who would try to download the entire 1790 census so they could put it on their website.
Thanks.
Regarding this statement: DNA results from Ancestry may not be used “in any judicial proceeding.”
I can’t locate the source right off-hand, but I do recall a case where a judge (I think) accepted DNA results (from some company) for an amended birth certificate. This would seem to put the kibosh on this approach.
You’re confusing the issue of judicial admissibility (will a court consider DNA evidence) with company terms of service (will you, as the customer of Ancestry, agree never to use their test information in court). You can always get a private testing lab to re-test and use those results without any issue as to Ancestry.
Thank you for explaining this…I’m curious now, about whether or not England & Wales census returns are also in the public domain…OK – I just checked a 1911 census return – these are the terms “Images may be used only for purposes of research, private study or education.” So, would including an image in a blog post where I’m using it to demonstrate an aspect of English genealogy research count as “education”? Or does it literally mean in a classroom/workshop setting?
As a librarian, I would never want to do anything that isn’t legal, so have never used Ancestry images on my blog as I didn’t want to break T&C.
Hi Teresa,
I can help you with that question. Most of the education-related exceptions the UK Copyright, Designs and Patents Act1988 only apply within schools, colleges and universities recognized by the Department for Education. However Section 32 is much broader in it application:
“32 Illustration for instruction
(1) Fair dealing with a work for the sole purpose of illustration for instruction does not infringe copyright in the work provided that the dealing is—
(a) for a non-commercial purpose,
(b) by a person giving or receiving instruction (or preparing for giving or receiving instruction), and
(c) accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
(2) For the purposes of subsection (1), “giving or receiving instruction” includes setting examination questions, communicating the questions to pupils and answering the questions.
(3) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.”
The ‘fair dealing’ phrase means, basically, not using more than is strictly necessary for the purpose. On that basis, your blog example would be fine.
As for the exception for private study and research which you mention, this too falls under the fair dealing heading and requires that the source is cited and the research is non-commercial in nature. The results of the research/private study may be published so long as this is not for commercial gain. So an unpaid article in a family history society journal would be fine, but book on family history research with a cover price would not.
The UK census data is subject to Crown copyright, a concept which will be alien to US readers, where anything produced on behalf of the Federal Government is automatically in the public domain. If you do want to use census images (or anything else which is Crown copyright) and you feel you may exceed the fair dealing rules, it is easy and free to ask for permission to publish. Full details for how to do this are on the National Archives website: https://www.nationalarchives.gov.uk/information-management/re-using-public-sector-information/uk-government-licensing-framework/crown-copyright/
Just a simple thanks for all you do.
Susan W.
“DNA results from Ancestry may not be used “in any judicial proceeding”
Wonder how they plan to enforce that. Suppose Attorney Russell asks me during discovery, a judicial proceeding, to produce evidence why I’m not that baby’s father. I must show my Ancestry DNA record? Or suppose I download my DNA from Ancestry, which i’m supposed to own, absolutely. I then upload it to GEDMatch and it becomes a legal issue later. Do you suppose they will sue me for violating their TOCs? Send out the SWAT team? Prove how much financial loss I’ve cost them? Interesting. Or merely stop me from logging on anymore?
Your consumer test results won’t prove you’re not the baby’s father because there’s no chain of custody to prove it’s your consumer test and not somebody else’s. But if you play games with this and rub a testing company’s nose in it, yes, exactly — your account will be terminated.
Does uploading an AncestryDNA raw data file to GEDmatch and opting-in to law enforcement matching violate the terms of service? I’ve seen different interpretations of what “judicial proceeding” means in this context.
That’ll be up to Ancestry’s legal team, but in my mind it wouldn’t be within the ordinary meaning of the term.
What’s your interpretation of this new text in the Ancestry Guide for Law Enforcement: “do not allow law enforcement to use Ancestry’s services to investigate crimes or to identify human remains”? Does this mean that LE aren’t allowed to look at public member trees, censuses and other indexed records? Or does it just prohibit LE to investigate Ancestry user accounts?
It is intended broadly: no-one including researchers working on law enforcement contracts should use the services. Whether it’s enforceable broadly is another question.
Thank you Judy for doing what the rest of us are too lazy to do so and then, even more fab, summarizing what we might be interested in. You are a gem.