Genetic genealogy and DNA privacy concerns
Investigative genetic genealogy is a fairly new conversation in the family history space. And it’s a hot one. You can’t turn on the news or fire up YouTube with your morning coffee without seeing a new story on the topic. (Especially if you have my YouTube algorithm!)
Investigative or forensic genetic genealogy involves law enforcement agencies’ use of genealogy and DNA databases to solve crimes, including those that were committed generations ago. This is understandable since violent crime cold cases are some of the most heart-wrenching concerns for law enforcement, as well as for the families of crime victims that have waited years for justice.
The game changer for this issue hit the news in April 2018. The international attention that solving the case of the Golden State Killer brought to bear on the issue of casual home DNA testing is still ongoing. Alleged to have committed more than 50 violent sexual assaults and 13 murders starting in the 1970s, this suspect’s arrest was accomplished by comparing his DNA, left behind from decades-old crime scenes, to the DNA of distant relatives compiled on GEDmatch. To make his arrest, detectives constructed the killer’s family tree and then systematically eliminated suspects, until finally arriving at Joseph James DeAngelo.
A few dozen and growing cold cases have now been solved using forensic investigative techniques. Yet hundreds of thousands of crimes remain unsolved, even though DNA has been collected from crime scenes and victims for many cases.
After public outcry, GEDmatch, which contains about 1.2 million DNA profiles, announced last year that the company would severely limit access to user data by law enforcement and users would have to opt-in to make personal profiles visible to authorities. The reversal reverberated through several circles, from the genealogy community to law enforcement bureaus and even legal scholars. But it wasn’t really a surprise. One of the most pressing issues of the time is individual privacy: what it means and how much of it we can or should be entitled to.
When individuals began uploading their personal genetic data from testing kits like 23andMe and AncestryDNA, no one really anticipated that law enforcement would one day have free reign to search databases, construct family trees, and track down potentially criminal cousins, siblings or grandparents. (Just to be clear, investigators found the Golden State Killer through his DNA match with nearly two dozen third cousins.)
GEDmatch decided to restrict access to its database after some users expressed concern about privacy. Wall Street Journal op-ed writer, Andy Kessler, said “[users were] worried their DNA might be used for any purpose under the sun.” After the law-enforcement lockout, just 1 out of 6 users agreed to GEDmatch’s information-sharing opt-in. FamilyTreeDNA has made the decision not to cooperate with law enforcement in order to protect their customer’s privacy. This is reassuring and commendable for those concerned with privacy.
Pro database access
On the other side of the debate are law enforcement agencies and those who can see a future where, as WSJ’s Kessler describes it, “the benefits of a safer society far outweigh the risks.” He goes on to say, “My close relatives aren’t criminals, I think, but who knows what my third cousins twice removed might be involved in? I’m happy to upload my DNA to a secure database and opt in for law-enforcement searches. You should be too.” Experts in favor of genetic genealogy say that the just over 100,000 or so DNA samples that investigators now have access to has crippled crime-solving efforts at the moment.
It shouldn’t go without saying that DNA databases do more than help law enforcement find 70s-era serial killers. According to new player, DNASolves, genetic material also helps law enforcement identify crime victims and find missing persons. Closure matters. And the more DNA profiles shared with forensic databases, the better.
A new option on the table for both sides of the debate is the new database DNASolves, created by Texas-based forensic biometrics company Othram. Site creator David Mittelman, CEO of Othram understand users’ concerns and insist that the DNA data entrusted to DNASolves is completely private and used only by law enforcement to solve crimes. This was the sole reason behind the creation of the site.
This kind of legitimate division of purposes seems prudent for all concerned, in my humble opinion.
In February 2020, AncestryDNA was served with a search warrant requesting access to the genealogy company’s 16 million DNA profiles. Ancestry refused to comply on “jurisdictional grounds.” The move was celebrated by proponents of privacy rights, but that’s not necessarily what Ancestry was actually arguing — even though they plainly state that privacy is their top priority.
According to UK journalist Victoria Woollaston, “It is the reference to ‘proper jurisdiction’ that Ancestry seemingly refused the warrant on, suggesting the court does not have the legal power to access such files.”
According to Buzzfeed, legal experts have long expecting this exact scenario to occur. Reporter Peter Aldhous interviewed companies like MyHeritage, who claimed not to have received any warrants to date, but stated their position is to not comply with law enforcement.
And the issue is far from over. Recently, in a different case, a Florida judge granted a search warrant to a detective requesting access to GEDmatch records. One law professor called it a “game-changer” because even though the company decided to restrict access by law enforcement, the court overruled their decision.
If the investigators who served Ancestry with a search warrant decide to pursue their case, it could eventually find its way in front of the Supreme Court, which is where many on both sides of the genetic genealogy debate want this fight to go so that everyone can establish rules governing what information law enforcement can access and an official path for attaining that information. The only ones who don’t want this fight to go that far are those who are adamantly pro-privacy.
Their argument – no one should be ogling anyone’s DNA profile for any reason whatsoever without explicit permission to do so. A great point.
The idea of highly specific purposes and permissions, defaulting to protecting privacy, reminds of the old saying about fences…and we all want to be great neighbors, right?