Ancestry Updates their Terms and Conditions, and I Have Questions

AncestryDNA updated their Terms and Conditions on 23 September, 2020.  The Legal Genealogist has (as usual) has written an excellent summary.  I encourage you to read it.

There’s one section that she only briefly mentioned, though, that set off alarm bells. It’s this:

You will not use the information obtained from the DNA Services (including any downloaded DNA Data (defined in the Privacy Statement)) in whole, in part and/or in combination with any other database, for any medical, diagnostic, or paternity testing purpose, in any judicial proceeding, or for any discriminatory purpose or illegal activity.

It’s easy to get lost in that complex sentence, so let me simplify:

  • You will not use AncestryDNA data for medical or diagnostic purposes.
  • You will not use AncestryDNA data for paternity purposes.
  • You will not use AncestryDNA data in judicial proceedings.
  • You will not use AncestryDNA data to discriminate or for illegal purposes.
  • You can’t get around these limitations by copying AncestryDNA data to another database.

So what does this mean for the average genealogist?  Not much.  Most  of us aren’t using our genealogy DNA results to break the law or as medical tests.  However, a few of us are using them in front of a judge, and many of us are using it to identify biological parents.

 

Consider Lana

Lana (not her real name) discovered through a genealogy test that the man listed on her birth certificate was not her biological father.  Using her DNA matches at AncestryDNA and MyHeritage, I easily identified her birth father and wrote a report explaining my logic.  Her father as well as a half brother had both passed away, so traditional “paternity testing” was not an option.

Hypothetical tree showing Lana and her DNA matches.

 

Lana wanted to use that report to amend her birth certificate with the name of her birth father.  That required a court order.  In other words, she used my work in a judicial proceeding.

Now, this happened back in December, long before the new Terms and Conditions came into effect.  But those T&C will have a chilling effect on what many of us professional genealogists can do going forward.

It seems pretty clear that, in the future, someone like Lana could not use her AncestryDNA matches to amend her birth certificate.  What’s more, I might well be in violation of them myself for writing a legal declaration in the case.

 

Parentage Searches

The new Terms and Conditions also forbid “paternity testing purposes.”  Interpreted broadly, this would mean that adoptees, the donor conceived, and others with unknown parents could not use AncestryDNA to identify their biological families.  Of course, that’s why they’re testing in the first place!

Really, Ancestry? You can’t possibly mean that.

A stricter reading of that section would suggest that someone could use AncestryDNA to search for biological relatives, but once they found a suspected parent, both parent and child should test elsewhere for confirmation.  That’s a workable solution, especially given the sale prices at MyHeritage.

However, precisely what is and isn’t allowed by Ancestry is unclear.  I reached out to a contact there but have not received a reply.

 

The Elephant in the Room

Perhaps the most high profile use of genetic genealogy in recent years has been to identify criminals using forensic samples they leave behind. The DNA matching in those cases is most often done at GEDmatch and FamilyTreeDNA, but there are two scenarios that might involve AncestryDNA.

The first is when a key match to the suspect is adopted and the investigator needs to solve the adoptee’s parentage questions to advance the investigation.  In that case, the investigator would most likely ask for access to the adoptee’s matches at AncestryDNA to help both of them achieve their goals.

In the second scenario, the investigator might “target test” potential cousins of the suspect to rule in or out specific lineages.  Doing that test at AncestryDNA and then transferring to GEDmatch or FamilyTreeDNA would be the best strategy.

The conflict comes when the investigator uses the information gleaned from AncestryDNA in a judicial proceeding, like an application for a warrant or subpoena. (Genetic genealogy data isn’t admissible in trial court, but it can be used to justify a warrant from a judge.)

Personally, I don’t think the new Terms will have any effect on what law enforcement investigators actually do; it’ll just make them more secretive about it. And that, in turn, whittles away trust in the industry that’s already deeply shaken.

 

Yes, You Can Still Upload to GEDmatch

I’ve seen some consternation on social media that Ancestry is trying to prevent people from uploading to GEDmatch or from opting in to law-enforcement searches.  I think that is a misreading of the Terms.  If you upload to GEDmatch and someone else uses your data in a judicial proceeding, you haven’t violated the Terms.

What’s more, if the investigator doesn’t have an account at Ancestry, there’s no problem there, either.  After all, Terms and Conditions aren’t law; they’re a contract between the company and the customer.  Someone who is not a customer isn’t bound by them.

 

What’s The Worst They Can Do?

So what happens if someone violates the Terms?  For most people, nothing; Ancestry will never know.  But any case that sparks controversy—via negative press coverage, say, or an angry birth parent suing Ancestry—will almost certainly have repercussions.

Ancestry’s remedy when the Terms are broken is to suspend or terminate the offender’s account.

We may limit, terminate, or suspend your access to the Services without a refund if you breach or act inconsistently with the letter or spirit of these Terms, including the Ancestry Community Rules. In such a case, you will not be entitled to a refund of subscription fees or the purchase price of a DNA test kit.

And for most people, this would be an inconvenience at most.  But for those of us who are deeply passionate about genetic genealogy and helping others solve mysteries, it would be devastating.  It would mean the end of what we do.

Ancestry, can you please clarify?

15 thoughts on “Ancestry Updates their Terms and Conditions, and I Have Questions”

  1. It will be determined in the best financial interest of ancestry.com. Remember, they are not in this game to help anyone other than themselves. It’s all about the money. There are times when cite your sources is not gospel.

    1. They are a business, and like all businesses, they balance their need to make a profit with the services they provide to theur customers. I’m not sure what you mean about citing sources. Citations are required by the Genealogy Standards.

  2. This seems rather absurd. I bought and paid for a DNA test. The results are mine to do with as I see fit. Would my grocery store ever tell me that the loaf of bread I buy is for my personal consumption of sandwiches only and I’ll be banned from the store if I make frech toast for my friend?

    1. Interesting analogy. If your grocery store did impose a Terms of Service on how you used bread, you would be agreeing to them by buying a loaf there. Would you do that? Or would you shop somewhere else?

  3. Surely it would have to mean any legal paternity business, like adding a name to a birth certificate or taking someone to court. Ancestry already warns that unexpected relatives may be found, so that acknowledges it is possible to discover unexpected paternity. Taking that term to extremes Ancestry is in breach of its own TOS by providing a list of matches.

  4. Okay – so the thing to do is to use a
    Ancestry matches to discover the relationship, then have an independent DNA test done to prove paternity/maternity or another close relationship done and submit that result as a part of any legal petition. That should get around any obstacles Ancestry wants to place in the way of using its results for legal purposes.

    1. I agree. And given the frequents sales at MyHeritage, the most cost effective approach would be to do the follow-up testing there.

  5. Hi,

    Regarding your article – ‘Ancestry Updates their Terms and Conditions, and I Have Questions’.

    Thank you for pointing out and explaining this development that “AncestryDNA updated their Terms and Conditions on 23 September, 2020“. I think I got a seemingly belated email (from a customer’s from over a year ago perspective) about this amendment which I may have scanned but did not take in. It has come as a bit of a shock to me. I am really glad that you pointed it out. I missed it really, partly as a consequence of boredom and partly as a consequence of aging eyes; I am not good at small print.

    I was born out of wedlock and later adopted. My parents told me that my adoptive father was my biological father. I recently came to doubt this given history. I am now far from convinced that what my parents said was true but I also have no solid evidence either way. In fact I stand be-set by DNA puzzles.

    I have come to live in the hope that Whole Genome Sequencing (WGS) will soon drop enough in price to become the norm and that it will prove to be of a quality that will bring a level of confidence comparable to the scientific-model-building concept of inductive-provisional-near-certainty and the British legal concept of “beyond reasonable doubt” to DNA heritage and family tree construction. Do you consider it to be probable that WGS has the potential to stand the empirical testing to offer near-certainty for DNA relatedness and if so, at what read depth and base pair lengths? I checked the reviews at –

    https://geneticgenie.org/article/where-do-i-get-whole-genome-sequencing/

    and it sounds convincing to me but as a relative newbie I may know too little about WGS-DNA to judge.

    Realistically, regarding WGS, it seems likely that it will in any case take a few more years for WGS to come down in price enough to become the product of choice for DNA research consumers.

    I had intended to continue to research both my aDNA and my yDNA in the hope of becoming able to feel confident about who my biological father really was. It now looks like this may not be legally possible any more.

    Like the person you helped to find her father already, I too would prefer to be confident that I have the correct father entered on my Birth Certificate. Indeed, I feel unfairly discriminated against in that this Basic Human Right “to know who my biological father is” is denied me because as it stands I am given to understand that I have no Basic Human Rights in this matter at all; neither here in England, nor in Germany where I was born. The illegitimate child fares ill, if fells almost as though it stands accused of having engendered itself outside of wedlock and must be punished therefore. I am given to understand that I have few rights regarding seeing my own files and even my original German Birth Certificate looks like the right margin has been redacted. Similarly, I understand that I am not allowed to see my British adoption file.

    Can you tell me if I am now suddenly and retrospectively in breach of any law, and if so, then which legal system, or systems, may I be in breach of?

    Is it English or American Adversarial law, French Inquisitorial law, Belgian law, Luxembourg law, Netherlands law, German Inductive/Scientific law, or some post European Union harmonization of the member state’s legal systems that I might find myself inadvertently in breach of?

    Does it seem possible to determine where I stand in general, and what, if any, biological heritage and family connection research options remain with me as a customer of ancestryDNA?

    Roll on 27 November 2020 for “Black Friday” and the WGS sales! Do you think WGS will make it easier for illegitimate children to get their birth certificates updated in the light of WGS-DNA evidence?

    Thanking you in advance.

    1. To be honest, I don’t think WGS will make much of a difference for most genetic genealogy applications, certainly not for finding birth parents. That’s because most of the genome is identical among all humans, and of the portion that differs, the most informative sites are already being tested by the microarrays we use now.

      By using genetic genealogy to identify your birth parents, you are not in breach of any laws in the US. I can’t speak for other countries. You might be in breach of Ancestry’s Terms and Conditions, but those aren’t laws, those are a contract between you and them. Since I wrote this blog, I got information from an Ancestry representative that seems to narrow the limitations to what can be presented in a court. I’m following up on that.

      1. Last Saturday I heard from 2 people who have just discovered a close relationship. They found out via Ancestry, but made sure to confirm using a close relationship test that was suitable for legal purposes should they need it.
        The family history DNA labs use tests that are designed to be INCLUSIVE – to provide us with possibilities. Now I have never seen a false positive that close, but still. The nature of close relationship tests (aka “paternity tests”) is to be EXCLUSIVE, along the lines of CODIS testing. Sure they charge a lot more, but if you do it right and you need to use their result in court, then they will support their findings. It has also proved a lot more persuasive for family members who are doubting Thomases.
        Ancestry is just not in that business, is all.
        Use the right tool for the task.

        1. In Lana’s case, genealogical DNA was the only tool for the task. STR familial tests are limited to first and second degree relatives, and hers were no longer living.

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