Which services do and don’t allow police access
So the multi-day multi-session multi-national megaconference RootsTech drew to a close yesterday afternoon (US eastern time), leaving many of us panting with the sprint to the finish.
The Legal Genealogist was honored to be part of a panel discussion Saturday led by Lynn Broderick of the United States and Jill Ball of Australia on genealogical ethics and the hot topics of copyright, terms of service, inclusion in the community and, of course, the always-hot topic of the use of consumer genealogical DNA databases by law enforcement in criminal cases — known as investigative genetic genealogy or IGG for short.
At the outset of the panel discussion, the hundreds of attendees were asked to tick off from a list all the companies and services that they believed did allow such use of their databases. The choices were 23andMe, Ancestry DNA, Family Tree DNA, GedMatch, Living DNA and MyHeritage DNA.
It wasn’t surprising, given the publicity over the past few years, that many respondents knew that GedMatch and Family Tree DNA both allowed and, indeed, encouraged their users to allow law enforcement use of their databases. To this day, Family Tree DNA still does not require informed consent of its users for law enforcement access to results: a tester who has chosen to see any matches at all must affirmatively opt out of being matched to police-generated tests, whereas informed consent would require the tester to opt in.1
That’s also true, by the way, at GedMatch for law enforcement cases seeking to identify human remains,2 including infant and even fetal remains, a highly controversial use of investigative genetic genealogy since the legal purpose is often less to identify the dead as it is to prosecute the living, particularly in states with restrictive anti-abortion laws.3
What was surprising were the very large numbers that said that other companies also allowed such use. Almost a quarter of the respondents said 23andMe allowed it, close to 40% said Ancestry did, and smaller percentages placed MyHeritage and Living DNA in the allowed category.
So let’s set the record straight here.
Here are the policies of the main players in genealogical DNA testing on allowing law enforcement access to their user databases for investigative genetic genealogy:
23andMe:
Allows law enforcement use: No.
Terms of service: https://www.23andme.com/about/tos/
Privacy: https://www.23andme.com/about/privacy/ (“We will not provide information to law enforcement or regulatory authorities unless required by law to comply with a valid court order, subpoena, or search warrant”)
Law enforcement guide: https://www.23andme.com/law-enforcement-guide/ (“23andMe chooses to use all practical legal and administrative resources to resist requests from law enforcement, and we do not share customer data with any public databases, or with entities that may increase the risk of law enforcement access.”)
Ancestry DNA:
Allows law enforcement use: No.
Terms of service: https://www.ancestry.com/c/legal/termsandconditions
Privacy: https://www.ancestry.com/c/legal/privacystatement (“Ancestry does not voluntarily cooperate with law enforcement. To provide our Users with the greatest protection under the law, we require all government agencies seeking access to Ancestry customers’ data to follow valid legal process and do not allow law enforcement to use Ancestry’s services to investigate crimes or to identify human remains.”)
Family Tree DNA:
Allows law enforcement use: Yes.
Requires informed consent: No. System is opt-out, not opt-in. (“Users will … be viewable to the law enforcement account if … The user has opted into matching (and) The user has not opted out of Investigative Genetic Genealogy Matching…”)
Terms of service: https://www.familytreedna.com/legal/terms-of-service
Privacy: https://www.familytreedna.com/legal/privacy-statement (“If you consent to participate in matching and depending on your additional settings, some of your Genetic Information may be viewable to your DNA matches, including matches whose accounts are managed by law enforcement, as well as your mutual matches.”)
Law enforcement guidelines: https://www.familytreedna.com/legal/law-enforcement-guide
GedMatch:
Allows law enforcement use: Yes.
Requires informed consent: Partially. All data can be used by law enforcement for human remains cases (including cases that could result in prosecution), but opt-in is required for other criminal cases. (Even for users who opt out of law enforcement, “We will compare your DNA kit to … those submitted by … users (including law enforcement) attempting to identify unidentified human remains.”)
Terms of service and Privacy: https://www.gedmatch.com/terms-of-service-privacy-policy
Living DNA:
Allows law enforcement use: No.
Terms of service: https://livingdna.com/legal/Living-DNA-terms-of-service (“You may not use our commercial Services if you are … a law enforcement agency.”)
Privacy: https://livingdna.com/legal/Privacy-Policy (“We will not share your personal information with law enforcement agencies unless we believe that we are legally compelled to do so.”)
MyHeritage DNA:
Allows law enforcement use: No.
Terms of service: https://www.myheritage.com/terms-and-conditions (“(U)sing the DNA Services for law enforcement purposes, forensic examinations, criminal investigations, ‘cold case’ investigations, identification of unknown deceased people, location of relatives of deceased people using cadaver DNA, and/or all similar purposes, is strictly prohibited, unless a court order is obtained. It is our policy to resist law enforcement inquiries to protect the privacy of our customers.”)
Privacy: https://www.myheritage.com/privacy-policy (“MyHeritage prohibits law enforcement use of its DNA Services.”)
The decision on whether or not to allow law enforcement use of genealogical DNA test results belongs to each and every individual DNA tester. Putting that decision into action means knowing which companies and services allow police access and which don’t.
It’s up to us to know before we test and before we ask others to test for us whether the service we’re using is one of the dos or one of the don’ts.
Cite/link to this post: Judy G. Russell, “The dos and don’ts of DNA,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 6 Mar 2022).
SOURCES
- See ¶ 5E, “FamilyTreeDNA Privacy Statement,” FamilyTreeDNA (https://www.familytreedna.com/ : accessed 6 Mar 2022) (“Users will … be viewable to the law enforcement account if … The user has opted into matching (and) The user has not opted out of Investigative Genetic Genealogy Matching”). ↩
- See “GEDmatch.com Terms of Service and Privacy Policy,” GedMatch (https://www.gedmatch.com/ : accessed 6 Mar 2022) (“We will compare your DNA kit to … those submitted by … users (including law enforcement) attempting to identify unidentified human remains”). ↩
- 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 6 Mar 2022). ↩
Good summary.
And people should know that for legal purposes a CODIS type DNA test is still required. Where family DNA includes lots of people, the CODIS type test excludes everyone except the match or very close family members. Family DNA provides suspects but not proof of the offender’s ID.
Meanwhile, a massive number of forensic academic papers are showing lots of ways to identify people as other than mainstream in many countries outside USA.
This is effectively racial minority profiling and needs to be handled very carefully in public announcements about a likely offender. Outgroup slurs have been very damaging in past history – mostly to innocent people.
Thanks so much Judy for your contribution to the panel at Rootstech and now for promptly following up with this clear explanation of the topic.
Our purpose in the short time avalaible was to raise awareness of ethical issues. Thank you for highlighting and continuing this conversation..
Thank you for this very helpful summary of the situation. You cited the Georgia case where genetic genealogy was possibly used to identify human fetal remains. There is another case in South Carolina where “advanced investigative techniques” were used to identify the mother of a 20-week-old fetus though it’s not clear if genetic genealogy was actually involved. https://news.knowledia.com/US/en/articles/a-fetus-was-left-in-a-bag-at-an-sc-hospital-months-later-police-search-12360f7121d8eab80e04c282e8343b6423b9be0f