… and past time for an attitude change
The disclosures of the past week or so that highly regarded investigative genetic genealogists working for law enforcement deliberately and knowingly violated company and website terms of service and — well — let’s just leave it as “pretty much every ethical standard governing genealogy” have been dismaying.
The bad news for investigative genetic genealogy (IGG for short — the use of DNA to identify human remains and solve crimes) began more than a week ago when the news broke of an affidavit filed by an expert genetic genealogist in an Idaho murder case that set out five specific situations in which ethical and/or legal problems have occurred in the use of genetic data. Those violations range from internal chain of custody lapses within testing companies to deliberate exploitation of security loopholes to see matching data on DNA kits whose owners had opted out of any law enforcement use of their kits.1
It got worse when a second genetic genealogist — this one an IGG specialist — filed a second affidavit in the same case stating flatly: “I am aware that law enforcement has obtained results in ways prohibited by the terms of use and prohibited by their own policies.”2
And even worse when the online news site The Intercept published a major expose on the deliberate and knowing exploitation of a backdoor into GEDmatch data that allowed IGG researchers working for law enforcement to access kits that had opted out of any such use.3
So… dismaying for sure.
And disheartening.
And — perhaps — just perhaps — the ethical wake-up call that the field has needed.
The smack-upside-the-head that just might lead to real reform — real change — in attitudes and in practices.
This won’t be an easy task. There are clearly some within the IGG community who firmly believe that the ends justify the means. Whose sole reaction to the public disclosures that some IGG practitioners were and perhaps still are violating legal and ethical norms was not outrage that violations of legal and ethical norms were occurring but rather outrage that somebody would be brave enough to step up and say so. Who expressed more outrage the disclosures came as part of the defense efforts in the Idaho murder case — as if DNA was somehow a tool limited to the prosecution, and a defendant shouldn’t be allowed a defense.
But there are signs that reform is possible. That people who once held the view that DNA investigations were without rules other than “anything goes” have changed their minds. Nothing shows this more than the courageous admission that, between May 2019 and January 2021, the DNA Doe Project did in fact exploit the open backdoor at GEDmatch and failed to report the bugs to the platform operators. In a statement on the project website, DNA Doe Project founder Margaret Press wrote:
“Our actions reflected our organization’s culture at the time. We had been working in the wild west with no rules other than our own sense of justice. DDP was populated with brilliant researchers who were experts at exploring and exploiting all possible tools and tricks, powered by a fanatical doggedness to overcome obstacles in order to get the information that would allow us to bring our Does back to their families. This singular focus blinded us to the broader ethical considerations inherent in the use of DNA profiles provided by the public. The culture of DNA Doe Project in 2019 was very much driven by the end goal.
We have always been committed to abide by the Terms of Service for the databases we used, and take our responsibility to our law enforcement and medical examiner partner agencies extremely seriously. In hindsight, it’s clear we failed to consider the critically important need for the public to be able to trust that their DNA data will only be shared and used with their permission and under the restrictions they choose. We should have reported these bugs to GEDmatch and stopped using the affected reports until the bugs were fixed. Instead, on that first day when we found that all of the profiles were set to opt-out, I discouraged our team from reporting them at all. I now know I was wrong and I regret my words and actions.”4
To be sure, there were others involved in this breach of trust who have not stepped forward and owned their own actions.
But perhaps now they will take time to think.
To engage in a time of reflection.
To consider the very real potential that their hubris, their disregard for the rights of others, puts the entirety of genetic genealogy — including but not limited to IGG — at risk.
To own their mistakes.
It’s time and past time for a serious attitude adjustment. It’s not the Wild West out there. Ethical and legal constraints protect us all. And the rules apply to all.
As The Legal Genealogist said last week, when the first disclosures became public, it’s never been a matter of whether investigative genetic genealogy should be done.
It’s always been a matter of how investigative genetic genealogy should be done.
It has to be done right.
It’s clear now that it hasn’t always been done right up until now.
It’s time and past time for that to change.
Let’s have a time for reflection.
Followed by a commitment by the entire genealogical community — across the board, without exceptions — to doing things right.
Cite/link to this post: Judy G. Russell, “A time for reflection,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 20 Aug 2023).
SOURCES
- See Judy G. Russell, “Not whether, but how,” The Legal Genealogist, posted 13 Aug 2023 (https://www.legalgenealogist.com/blog : accessed 20 Aug 2023). ↩
- Affidavit of Gabriella Vargas, 17 August 2023, State v. Kohberger, No. CR29-22-2805, Second Judicial District, Latah County, Idaho; , accessed 20 Aug 2023. ↩
- See Jordan Smith, “Police Are Getting DNA Data from People Who Think They Opted Out,” The Intercept, posted 18 Aug 2023 (https://theintercept.com/ : accessed 20 Aug 2023). ↩
- “From Our Founder, Margaret Press,” DNA Doe Project (https://dnadoeproject.org/ : accessed 20 Aug 2023). ↩
I hope that the discussion on this topic will focus on moral and ethical issues of fairness, justice etc. and not just on interpretations of “the Constitution”. Many DNA testers are not American and it is not our Constitution but our DNA could be involved. The views of slave-owning white men two and a half centuries ago is not the definitive moral compass in today’s world.
It’s also not merely a legal issue; it’s an ethical issue. And that in the long run will determine whether public trust is preserved or destroyed.
Judy, I agree with you 100%. Optics exist, and when done right? Every ounce of our reporting and work could be shared and transparency encouraged. Redaction can protect those that shouldn’t be publicized but when the proper and thorough work is done it can remove the insinuation of smoke and mirrors. Ray Wickenheiser said it best in a recent forum-paraphrasing, “it is not a matter of IF FIGG practitioners will be called to be deposed or testify, but WHEN”. Each one of us should work and document research and findings with the expectation that it will be examined by others and scrutinized by defense.
Our privacy is affected in many ways including what we and others post about us on social media. Facial recognition software and its uses is much more frightening to me than DNA. I think we have to question whether there really is privacy in the modern world.
A lot of the problem to me lies in the commercialisation of genetic genealogy. Genealogists have traditionally shared information with others. In recent years professional genealogists have made a modest living doing research for others. There was always some resentment that they used tools created by genealogists for genealogists to make money. Genetic genealogy has opened the doors to forensic genetic genetic genealogy companies making a great deal of money using genetic data freely shared by others.
Linda, to expand on your comment about facial recognition, yesterday a person I was helping find their biological paternal grandparents shared with me that the reason they did DNA was actually to find a unnamed person that they were told was a half-sibling. The half-sibling did not have DNA in the databases. However, they had a 30yr old photo of the half sibling. The half-sibling’s name was unknown and no other details other than they were pictured in a uniform and the name tag was not visible. As an outside the box thought other than the standard “upload to all sites and wait for a match” answer, I found a facial recognition site and a short time later and $15, I had more recent photos- that Family Search face compare agreed that it was 100% – and also the name and town and a minor child’s name. It didn’t take long through usual search angel research methods to find the full name, birth date, an address and social media. Yes, there was a bit of luck involved but it was a little shocking on how easy it was for the average person to find a random unknown person. As a mother of minor children, this is hard to not think about how scary this could be.
Dismayed discouraged disheartened…
But also angry! So angry to learn respected genealogists & organizations kicked the ethics of personal choice into the dumpster. Thank you for you post today, Judy – much appreciated.
ditto. I’m just horrified but, sadly, not surprised. I’m definitely reconsidering whether to play in this pool any more. But, it may not make any difference since so many have tested.
The article in the footnotes was really informative. I’m glad that some states are making an effort, but – clearly – there needs to be some redress for this blatant disregard for the Fourth Amendment.
Thank you for your post. I learned a lot. I’ve been excited about IGG – admiring it from afar like a beautiful sports car (1969 red MGB). But with this look under the hood, it is clear that the electrical system (1969 red MGB) needs an overhaul.
I invite people to read Margaret Press’s full statement on the DNA Doe Project website. Not only does she disclose and accept her role in past activities, but details what the organization has been doing since 2021 to meet ethical and professional expectations.
Link: https://dnadoeproject.org/statement-from-margaret-press/
Agreed: the full statement should be read. The link was also in the footnotes.
What has DDP been doing since 2021 to meet ethical standards?
Margaret’s statement would have had more impact if it had come out prior to the disclusre by others.
Everyone is sorry when they are caught out.
I wish I could believe a voluntary acknowledgement and change was possible, that a consensus could be gained on what “the right thing” is. Instead I believe law enforcement actions will only change by force, the result of court rulings. I am grateful the defense attorneys are pushing the issues regarding IGG results forward.
I’m surprised at the surprise. Is Law Enforcement (outside of DNA) 100% ethical? Are Doctors, are our Elected Officials, are Lawyers, are genealogists, are Scientists and Engineers, always ethical. I agree we need to acknowledge and reflect and try our best to get better. But I doubt whatever we can do will be airtight…
I’m not surprised. I’m disappointed.
I am one of many genetic genealogists who has only used GEDmatch because of the explicit ability to opt out. I uploaded kits there because I could offer that assurance to my testers. It is a horrible violation and confirms the worst fears of anyone leary of testing or expanding beyond Ancestry.
IGG community need to sort it out themselves and/or you can guarantee a politician or legislator will score big points enshrining restrictions into law.
I’ve reflected. I look at this from what I think is a moral point of view, not legal. When you have your DNA done for genealogy it’s because you WANT to identify relatives. That means you can see other’s DNA and they can see yours. That means you can’t pick favorites – my kind of folks. No Animal Farm “some pigs are more equal than others”. You shouldn’t morally be able to restrict cops, adoption finders, or whatever. You have chosen to turn your data loose. Restrictions, “terms of service” are meaningless. Once you open Pandora’s Box you can’t say “Whoops, I didn’t really mean to.”
Consent is key. People who have not opted into forensic matching have not ‘turned their data loose’ for any and all purposes.
I don’t think that there is a hard line in the sand. I tested early and it was my expectation that I would be sharing data with other genealogists and we would be working together. Then adoptees and others of unknown parentage appeared in droves. They have nothing to share but they need the data that the rest of us provide. I fully support a person’s search for identity but we all know that some people don’t want to be found so there could be a moral issue there. My personal view is that I will help a person of unknown parentage if I can but I resent those who are not upfront and play games providing me with false information. A search for birth parents isn’t quite the same as doing genealogy and verifying distant ancestry. Further along the continuum is identifying unknown remains. It is easy to see that everyone who has “lost” a loved one wants to know what happened to them. Then there are major crimes and minor crimes and the boundaries can be blurred. And then there are different levels and skill sets of law enforcement.
It is interesting that all the talk of LE, the courts etc. is in the American context. I realize that a high percentage of the testees are in the US, but not all of us. Are foreign courts entitled to decide how DNA data should be used in their jurisdictions? When you look at your DNA matches at some companies, it is not obvious where the testee resides. So any court could be dealing with DNA of foreigners. Should American law enforcement have to determine that the DNA they are using is American? I manage over 50 kits of people in Canada, the UK, Ireland and Australia and only a couple in the US. So if the testing company is American I suppose that subjects us to American law. That may be the legal answer, but is it the ethical one?
There are real concerns for overseas testers and the use of their genealogical DNA data for law enforcement in the United States. Among the issues is the fact that some jurisdictions in the US still use the death penalty. This has to be considered when a tester chooses to test — and where to test.
Violations of public trust by law enforcement is one of the most serious issues facing our country. As citizens we expect honesty and integrity from our law enforcement, problem is, there is good and bad among all things created by us, the public. For all the public officials, punishment should be swift and sure or else we lose public trust. Guess where we are right now? HA! How many of your own family do you trust? This country is at a low in morality right now. Think we all know where this is gonna end up.
Judy, you know we agree much of the time but I must take issue with the characterization that the one who came forward is “brave.” She has been very outspoken against IGG without court oversight, not just the violations of the terms of service. She wants to be heard. I also take issue with The Intercept article as I could read media bias as well.
I recommend that everyone go to the source by watching the recordings of the court proceedings on YouTube. At least everyone will be discussing the original source and not hearsay.
This is genetic genealogy’s dirty laundry. I’m glad it’s headed to the ‘mat but question the venue.
LE is not the prosecution. LE brings their case to the prosecution to do what the State will do. LE received a lead that might be linked to a violation to the Terms of Service for a website. But, IGG should not be placed on trial in this case. Although I do not believe that the end justifies the means, I do believe this is a separate issue that some delight in exposing at a grave time in Idaho. I watched all of the testimony and felt that about an hour of the Court’s time was wasted. I appreciate that the judge wants to be educated on the topic.
We both agree that it has to be done right. Ethics matter!
After great reflection I’ve come to the conclusion that since it was a terms of service issue between the company(ies) and their users, and since there is going to be company investigations for which I look forward to the outcomes, and since the violations have no effect on the case since it should be based on evidence acquired at the scene and during the official investigation, not the process of generating a lead, I believe it was wrong to intermingle the issues within the community with a capital murder case. The defendant should be able to receive a fair trial based on the evidence collected during the investigation. All the IGG lead did was bring a potential suspect out of the shadows.
The issue of breach is not the defendant’s issue. This issue is between the companies and their users. It definitely does not inspire public trust but neither does the airing of dirty laundry in the middle of a capital murder case.
First off, it’s pure ad hominem to address motives in disclosing misconduct rather than addressing the misconduct. The facts are the facts, and it’s clear what these two genealogists are reporting are facts.
Second, the venue for addressing this HAS to be in the courts. Nobody else has the wherewithal. It’s a sure bet the “leaders” of the IGG movement won’t do it effectively, especially since some of them are involved and haven’t owned their own actions. And the issue of HOW evidence is collected in a criminal case is very much an appropriate issue for the court to address. It may not choose to do so in this case, but eventually a court will — and should.
I admit that I don’t know exactly what you believe to be “pure ad hominem” in my statement. If it’s a reference to the characterizations made in The Intercept article, I agree.
Facts are facts but the generalized statements taken as facts have not made it clear to me why this is pertinent to this case. Why now?
Also, there are no citations as to these “facts.” Where was this knowledge obtained and how is it relevant? I can trace the major issue disclosed at RIGG to a limited degree. I believe this issue to be a separate issue that is currently being investigated at three different companies. I look forward to a report on their findings. It’s premature to bring these “facts” before a court when there is an ongoing investigation and all of this is yet to be confirmed with the exception of Margaret’s admission.
Another genealogist brought this one disclosure at RIGG to Facebook groups and it’s become what it is. Why these particular genealogists and how are they, in particular, relevant to this case?
I’m not saying that a case should not be filed. I’m not one to evaluate the merit of a case. I just don’t believe that much of the testimony of genetic genealogy is pertinent to this case. If the court needs to understand how the lead was generated, subpoena the actual genealogist(s).
We can disagree on venue as well and still be friends. I prefer the proper order where the “court’s task is to interpret the meaning of a law, to decide whether a law is relevant to a particular set of facts, or to rule on how a law should be applied.” (https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch/)
The proper venue to address IGG is with state and/or Federal legislation. These efforts were also discussed at RIGG. Maryland, Utah, and Montana have laws on the books. At this time Idaho has no law concerning IGG.
In any case, it is more than unfortunate that we, as a community, cannot govern ourselves and uphold ethical practices.
Your unfamiliarity with the way evidence is tested in criminal cases may be leading you astray here. The criminal courts routinely consider the question of how evidence is obtained and not merely what the evidence is. Evidence that is utterly damning may still be excluded if the means used to obtain it do not meet legal and constitutional requirements. Every defendant has the right to thoroughly test the how question, and that’s what this court has to decide: is this evidence that was obtained properly? There is nothing wrong with the defense bringing this motion and nothing wrong with experts providing information bearing on the motion. It’s absolutely routine, it’s perfectly ethical for both the lawyers and the experts (on both sides), and the court will decide whether it’s significant in this case.
“And the issue of HOW evidence is collected in a criminal case is very much an appropriate issue for the court to address.”
I’m not sure how this applies to the online DNA search in this case.
Assume that the two pieces of evidence which may be used to convict this person are (1) DNA from the murder weapon and (2) his matching DNA from his garbage can, coffee cup or whatever (which result in probable cause arrest & formal DNA taking). Both seem to have been collected legally and without taint.
No one claims that the LEAD that came from searches and maybe matches of online databases is any kind of EVIDENCE: no chain of possession, probabilities only, etc. Just good guesses by enterprising genealogists. Legal or not, it did not affect the evidence for conviction. I assume for instance, that an illegal car stop that reveals dope in the car taints that dope as evidence. But if you make a legal stop, but based on hints from illegal wiretaps, is that OK? I’m confused.
The question of whether both were collected legally and without taint is for the court to decide, not for armchair lawyers (you or me). That’s what the defense motion aims to determine: was the evidence obtained lawfully and without taint?
I expected Margaret Press’s admission of guilt to end with “and because of that I am stepping down…”
Put me in the camp of outrage because this happened. Those of us who are nobodies in the field of GG but want to recruit family members to test will have a hard(er) time convincing the ones who already have trust issues that their data would be “safe.”
Let’s hope this is that wake-up call that sets the industry to policing itself (and not just on the honor system). I don’t know what that looks like, I’m just a nobody. But I don’t want to see the government get in on this, look what they’ve done to some of our records access.
I agree, it’s likely to lead to in a chill in people willing to test. I know people who were already skeptical (to put it mildly) about how their DNA would be used, and news like this will only reinforce their viewpoint.
To borrow from the history of wayward intelligence operations, I hope this is our Church and Pike committee moment — albeit on a lesser scale.
It was disheartening to read about these breaches in ethics, if not legal procedure. I wonder if it’ll take a bunch of cases in which the DNA evidence is excluded in order for prosecutors to get the message. It’s even more disconcerting to think of what the situation might be in Canada, which lags far behind the US in developing law and policy governing the use of IGG.
I have searched and I find nothing being done to meet ethical standards. Do people really have ethics anymore?