The GEDmatch and FamilyTreeDNA Terms of Service outline their policies for use by law enforcement. But for many users, solving crimes is not their primary motivation for signing up to these sites. Also, not everyone reads the terms of service, and companies can not only change them at any time, but may even violate their own terms.
That’s why David Gurney, who helped draft the Terms of Service for the DNA Justice Foundation, wanted to make sure users fully understood what they were signing up for: a database whose sole purpose was to help law enforcement. The site is not a general public genealogy tool and users do not have access to their own matches. Law enforcement may only use the database to investigate certain crimes, including murder, manslaughter, rape and sexual assault, kidnapping, robbery, aggravated assault, terrorism and imminent threats to public safety. (These are similar to the terms of GEDmatch and FamilyTreeDNA.)
“I don’t think anyone can agree to these terms of service and not understand what they’re getting into,” says Gurney, assistant professor of law and society and director of the Center for Investigative Genetic Genealogy at Ramapo College in the New Jersey.
Yet uploading your DNA data to one of these databases, even non-profit ones, still carries risks. You or a family member could be drawn into a criminal investigation simply because you share part of your DNA with a suspect. Genetic genealogists work with investigators to narrow down suspects based on factors such as their presumed age and where they lived at the time of the crimes, but the leads they generate are just that: leads. And sometimes the leads are wrong. Before the police arrested DeAngelo, they had identified another member of his family, who was innocent.
And there are security issues. In 2020, GEDmatch reported that hackers orchestrated a sophisticated attack on its database. The breach overruled the site’s privacy settings, meaning the profiles of users who did not opt-in to law enforcement matching were temporarily available for this purpose.
Jennifer Lynch, director of surveillance litigation for the Electronic Frontier Foundation, a San Francisco-based digital rights group, doesn’t think a nonprofit DNA database is the panacea for these problems. “That doesn’t resolve the fact that these searches are unconstitutional,” she said. The EFF and others have argued that genetic genealogy searches by law enforcement are violations of the Fourth Amendment, which protects US citizens from unreasonable search and seizure. The group also opposes the surreptitious collection of DNA without a warrant.
“When law enforcement searches these databases, they don’t have a suspect in mind,” Lynch says. She likens it to a “fishing expedition,” as it’s most often used as a last resort in cases where investigators haven’t been able to generate good leads. “Even if a technique can solve crimes, that doesn’t mean we should just overlook our constitutional rights,” Lynch said.
She also worries about a slippery slope: Currently, these databases limit police use to investigating violent crimes. But nothing prevents them from modifying their conditions of service to allow law enforcement to investigate less and less serious crimes, infringing on people’s privacy.
If the courts never take up the constitutionality of the technique, Lynch says, it will be important to implement laws that restrict its use. A few US states have already passed regulations that limit the types of crimes these databases can be used for or require police to obtain a search warrant to use them.
For now, Moore and Press are focused on the public interest of genetic genealogy. “If people support the idea of getting violent criminals off the streets and providing names to unidentified people and answers to their families, then they should seriously consider actively supporting us,” Moore said. “They could be the answer to a solved case or a violent criminal put behind bars.”