The Missus and I had talked about those DNA tests you see on TV like Ancestry dot com and 23 and Me and we were amazed that people who would normally raise hell and demand a court order so police can get their DNA, not only would willingly give it to a private company but actually pay for it. Our concern was “so what happens with those DNA markers? There is no way you can assure me they are just disposed of, I am sure they are in some database.”
Bingo!
Checking in Ancestry dot com, we find out that they have a page dedicated to Law Enforcement and basically they admit they can share the data if legalities are fulfilled. What are those legalities, who knows but I am damned sure is a much lower bar than trying to get a sample directly from your body.
It is a Brave New World, folks.
Their policy is that only if a court orders them to turn over records. The last time a court tried this, they got burned badly. Cause it turns out that cops, lawyers, and judges know shit about genealogy and DNA. And they hired a woman whose skills including building trees rather than analyzing DNA to make their case. Needless to say, after the appalling results, most of the companies basically said cops will have to spend major resources to come after our data and they have opted not to do so.
Much like with gun reporting, it’s important to remember that the press is definitely getting many things wrong about the DNA test sites & options at the moment. Most of us in the genetic genealogy community are still trying to figure it out, but most likely they used a 3rd party upload site which has more relaxed consent policies. It’s also interesting to note that it seems while the DA’s office was happy to brag about this new use of forensic DNA, they also seem to be shutting up about it now and saying they won’t be giving more details about it.
Ancestry & 23andMe don’t allow uploads of data, so if they used Ancestry or 23andMe, then they fabricated a kit. It’s possible to do based on a web video designed for an alternative for people who have serious drymouth and consent to test, but can’t produce enough spit. But if the cops did that, they would have had to check off several pages of consent & terms agreement where they would have to claim to be the person testing or the legal representative of that person. Obviously, they aren’t and those would be ethically and legally dubious claims. I don’t know how much the issue of fruit of the poisonous tree comes into play here since they could technically claim that their warrants were based on DNA they obtained by following him around & running it through traditional databases. I think it’s a reasonable argument that if they did misrepresent themselves as the DNA test subjects to fake a kit in order to find the person to follow around, it’s still fruit from the poisonous tree.
If they created a raw data file that resembled an Ancestry or older 23andMe file and uploaded it to FTDNA, MyHeritage, or Gedmatch, all of which accept uploads, then they still have consent issues. MyHeritage and Gedmatch do have policies you agree to that say you’re the person or legal representative thereof. FTDNA, according to one source, doesn’t have as much in that regard. (Though I thought they did after a baseless lawsuit a couple of years ago. I need to double check it.) Given that they said they started with hundreds of suspects after initially building a tree, I’m inclined to think it’s probably Gedmatch since most have more distant matches there. But it could be FTDNA since they also don’t have a particularly large autosomal database or they could have been working off of Y-chromosome data which they also allow some level of uploading basic markers.
In a recent Jane Doe murder case where they only wanted to identify the victim, law enforcement created a file and uploaded to Gedmatch. It’s plausible as a legal theory that as a “Jane Doe” in their “custody,” the authorities had a claim of legal representation. Once she’s identified, though, the family would be the ones to be legal representatives and they would have to follow their orders on how to handle the kit – delete, leave up, etc.
But for a living suspect, he still has rights and the cops aren’t his legal representative. I wouldn’t be surprised if they are now realizing after pushback from the genealogy community that not everyone loves this idea.
The sad part is that there have been calls from the community for law enforcement to consider building a database with clear legal protections for anyone who uploads that they could opt in to helping search for John/Jane Doe identities and possibly even major crime suspects. There are people willing to opt in and consent to this use, and even those people who want to help are bothered by the idea of law enforcement misrepresenting a sample to get into the genealogy databases based on the comments that I’m seeing.
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That is a damned good reply. You are wasting a post in the comments.
Make a post and I will link you back here.
It has now come out which site they used – Gedmatch. They apparently created a knock off file of one of the major sites and uploaded it.
The thing is, when they uploaded that knock off file, they checked a button that says, “Please acknowledge that any sample you submit is either your DNA or the DNA of a person for whom you are a legal guardian or have obtained authorization to upload their DNA to GEDmatch.” If I’m his lawyer, I’m going to point out to the court that they were not his legal guardians or representatives and did not have his authorization. So everything that came from that should be fruit of the poisonous tree and tossed.
Gedmatch’s response is that they don’t promise that others won’t use the site for non-genealogy purposes. That’s fine, but they aren’t acknowledging that the cops had to check off a false statement during upload. I’ve made all of our kits (except one who doesn’t mind) private for the time being. I’ve used it and loved it, but I’m not happy with their refusal to acknowledge what the cops had to make a false claim of representation of the suspect in order to use it.