This post has been updated.
Today, Buzzfeed broke the story that Family Tree DNA has been allowing FBI agents to use their database for criminal investigations. What’s more, Gene-by-Gene, the parent company of FTDNA, is selling DNA analysis services to the FBI and perhaps other law enforcement agencies, suggesting a possible conflict of interest.
According to Buzzfeed, FTDNA has allowed the FBI to use their database since last fall for a handful of cases. (Here is the press release from FTDNA.)
I checked the Terms of Service at FTDNA, and they have, indeed, changed. The previous version (presumably dated 18 December, 2018, per the URL), said:
“You agree to not use the Services for any law enforcement purposes, forensic examinations, criminal investigations, and/or similar purposes without the required legal documentation and written permission from FamilyTreeDNA”
Now, the Terms of Service say:
“You agree to not use the services for law enforcement purposes unless the DNA Sample submitted or Genetic Information supplied was obtained and authorized by law enforcement to either: (1) identify a perpetrator of a violent crime, as defined in 18 U.S. Code § (924) (e) (2) (B), against another individual, including sexual assault, rape, and homicide; or (2) identify the remains of a deceased individual;”
The terms are now essentially the same as at GEDmatch, which allows:
DNA obtained and authorized by law enforcement to either: (1) identify a perpetrator of a violent crime against another individual; or (2) identify remains of a deceased individual;
FTDNA Versus GEDmatch
We’ve been through this before with GEDmatch and the Golden State Killer investigation. There are some important differences, though.
First, in the GSK case, the FBI perused our data without GEDmatch’s knowledge. FTDNA has chosen to allow criminal investigations in our data and are even selling DNA services to law enforcement agencies.
Second, when they found out, GEDmatch did the right thing: they updated their Terms of Service and ensured that everyone who subsequently logged into their accounts either read and accepted them or removed their DNA data from the matching database. Has FTDNA taken a different tack? They appear to have changed their Terms of Service more than a month ago, without notifying their customers.
Third, at GEDmatch, users who do not grant law enforcement the right to see their data and matches can designate their kits “research”. Such kits are still fully functional but will not show as matches to other users. At FTDNA, the only recourse now is to opt out matching entirely, meaning the service for which customers paid is no longer available.
I Have Questions
- When, exactly, did FTDNA change their Terms of Service to allow law enforcement uses?
- Why weren’t we-their customers-notified immediately, as stipulated in the Terms of Service?
- Why weren’t we notified that the FBI is already using the database?
- How much money does Gene-by-Gene earn by selling DNA services to law enforcement?
- Did a profit motive influence their decision to expose their genealogy customers to criminal investigations?
- Will they offer refunds to customers who paid for genealogy services and who opt out of matching over Fourth Amendment concerns?
I Feel Betrayed
FTDNA made this change knowing that we-their customers-tested for genealogy, not law enforcement purposes. They did this knowing that even convicted criminals are not asked to give up the amount of genetic information in these tests. And they did this knowing that many genealogists and legal scholars view law enforcement rifling through the genetic profiles of innocent people as a potential violation of the Fourth Amendment to the United States Constitution.
And they did it without telling us.
I don’t know about you, but I am livid. How can we trust FTDNA again?
On February 3rd, Bennett Greenspan issued an open letter to his customers acknowledging that the Terms of Service had been changed without proper notification and that the Terms would revert back to the GDPR-compliant version from May 2018, the one that was likely drafted with help from GDPR consultants on hand. Law enforcement can still use the database with written permission of FTDNA. Recent events suggest that such permission will be granted liberally and without regard for customer choice.
- Judy G. Russell, “Opening the DNA floodgates,” The Legal Genealogist, posted 1 Feb 2019 (https://www.legalgenealogist.com/blog : accessed (date)).
- Judy G. Russell, “One little change,” The Legal Genealogist, posted 3 Feb 2019 (https://www.legalgenealogist.com/blog : accessed (date)).