Cecily Zamora
The use of genetic genealogy by law enforcement is a highly debated topic. While police have been using criminal genetic databases for decades, sites like Ancestry.com and 23andMe have revolutionized the industry by allowing anyone to make their genetic material public. This has led to concerns about privacy and the potential for abuse by law enforcement. In the United States, a judge's ruling allowed police to search the DNA of 1 million Americans without their consent, raising questions about the legality and ethics of using consumer DNA sites for investigations. While some argue that this is a violation of privacy, others believe that using DNA to catch criminals is justified. Law enforcement can access genealogists' online DNA profiles under certain circumstances, such as with a court order or in emergency cases, but the lack of federal oversight leaves user confidentiality to the discretion of database owners.
| Characteristics | Values |
|---|---|
| DNA data access by law enforcement | Police can access DNA data from Ancestry and similar sites under certain circumstances, such as a court order or search warrant. |
| User notification | Ancestry's policy is to notify users of requests for their data unless legally restricted from doing so. |
| User consent | Some sites, like GEDmatch, require user consent for law enforcement searches. |
| Privacy concerns | The use of DNA data by law enforcement raises privacy concerns, especially when relatives who haven't submitted DNA data come under suspicion. |
| Legislative action | Some states, like Maryland, have proposed bills to ban forensic genealogy searches by state law enforcement agencies. |
| Company response | Companies like 23andMe have stated their intention to challenge warrants for user data in court. |
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What You'll Learn
Law enforcement access to DNA databases
Ancestry.com has stated that it will only release basic subscriber information about its users to law enforcement in response to a valid trial, grand jury, or administrative subpoena. Additional account information or transactional information will only be released in response to a court order, and any data relating to a user's DNA will only be released pursuant to a valid search warrant. Similarly, 23andMe has stated that it has never given customer information to law enforcement officials and that it does not allow third-party access to genetic data. However, in 2018, a judge ruled that police could search the DNA of 1 million Americans without their consent, raising concerns about the privacy of users who did not know their data was being searched and the potential for relatives who had not submitted DNA to come under suspicion.
In practice, law enforcement officials will typically collect DNA from an unknown suspect at a crime scene and compare it to the federal government's Combined DNA Index System (CODIS). If no matches are found, they may turn to privately-owned databases. However, the genetic tests used by 23andMe and Ancestry.com cannot be used to match CODIS information or other governmental databases due to differences in genotyping technology. As a result, law enforcement has turned to sites like GEDmatch and FamilyTreeDNA, which do not require a warrant to access user data.
The lack of federal oversight over law enforcement access to DNA databases has led to calls for legislation to impose enforceable limits. For example, a proposed bill in Maryland would ban forensic genealogy searches by state law enforcement agencies. Additionally, the U.S. Department of Justice (DOJ) has issued a policy limiting searches by federal law enforcement agencies to violent crimes and DNA profiles with user consent. While these measures aim to balance privacy concerns with the need for effective criminal investigations, the issue remains highly debated, with no clear consensus on the appropriate level of law enforcement access to DNA databases.
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Privacy concerns
Ancestry.com's services allow members to create family trees, view historical records, and find and communicate with relatives online. AncestryDNA® is a DNA testing service that connects autosomal test results with a DNA database to estimate a user’s ethnicity and identify relationships with unknown relatives.
Ancestry has a detailed privacy statement that outlines the rights of its users. It also has a guide for law enforcement that outlines the procedures for law enforcement agencies to request information from Ancestry.com. According to the guide, Ancestry does not voluntarily cooperate with law enforcement. It requires all government agencies seeking access to Ancestry customers’ data to follow valid legal processes. It also does not allow law enforcement to use its services to investigate crimes or identify human remains.
In the United States, Ancestry will release basic subscriber information about its users to law enforcement only in response to a valid trial, grand jury, or administrative subpoena. It will release additional account information or transactional information pertaining to an account (such as search terms, but not the contents of communications) only in response to a court order. Contents of communications and any data relating to the DNA of an Ancestry user will be released only pursuant to a valid search warrant from a government agency with proper jurisdiction.
International law enforcement authorities may also submit requests for emergency disclosure, and Ancestry will provide records in accordance with applicable law and its policies. For requests from outside the United States, a Mutual Legal Assistance Treaty request or letter rogatory may be required to compel the disclosure of records.
Ancestry's policy is to notify users of requests for their information and provide a copy of the request prior to disclosure, unless legally restricted from doing so. However, law enforcement officials may prevent this disclosure by submitting a court order.
Despite these guidelines, privacy concerns have been raised regarding law enforcement access to DNA data on Ancestry and similar sites. In 2018, a search warrant allowed police to search the DNA data of 1 million Americans on GEDmatch, a genealogy website, without their consent. This has raised concerns about the potential for similar searches on larger sites such as Ancestry.com and 23andMe. Users of GEDmatch were unaware that their DNA data was being searched, and relatives who had not submitted a DNA sample could be implicated. In response, GEDmatch restricted police searches to participants who had given consent, and the U.S. Department of Justice issued a policy limiting searches by federal agencies to violent crimes and DNA profiles with user consent.
The increasing use of genetic genealogy by law enforcement has sparked debates about privacy rights and the potential for abuse. Law professor Natalie Ram has expressed concern about the lack of standing to challenge these warrants effectively. She suggests that public outcry could lead to more narrowly tailored warrants or legislative solutions, such as bills banning forensic genealogy searches by state law enforcement.
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The Fourth Amendment
In the context of direct-to-consumer DNA sequencing companies, such as Ancestry.com and 23andMe, the Fourth Amendment considerations become more complex. While these companies may release basic subscriber information to law enforcement in response to a valid subpoena, they require a court order for additional account information and a search warrant for any data relating to a user's DNA. The Fourth Amendment would require a warrant before a DNA sample can be retested for additional genetic information, and individuals have the right to be notified of requests for their information unless prohibited by law.
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Emergency disclosure requests
Ancestry.com has outlined specific procedures for law enforcement authorities in the United States and worldwide seeking information relating to the accounts or users of their services. In the case of an exigent emergency involving the danger of death or serious physical injury to a person, law enforcement officers can submit an emergency disclosure request. This request can be made by mail or by email to [email protected] with "Emergency Disclosure Request" in the subject line.
The following information must be included in an emergency disclosure request:
- A clear indication on the cover sheet, which must be on law enforcement letterhead, that an emergency disclosure request is being submitted.
- The identity of the person who is in danger of death or serious physical injury.
- The nature of the emergency, such as a report of suicide or a bomb threat.
- The full name of the account holder, their username, and the email and/or mailing address associated with the account(s) whose information is necessary to prevent the emergency, if this information is available or known.
- The specific information requested and an explanation of why that information is necessary to prevent the emergency.
- All other available details or context regarding the particular circumstances.
- The signature of the submitting law enforcement officer.
- A valid official email address and phone number for follow-up.
Ancestry.com's policy is to notify users of requests and provide a copy of the request prior to disclosure unless legally restricted from doing so. However, in the case of emergency disclosure requests, the user may be notified after the fact. Law enforcement officials in the United States can prevent disclosure by submitting a court order pursuant to 18 U.S.C. § 2705(b) or an equivalent state statute signed by a judge.
It is important to note that AncestryDNA® is a DNA testing service that connects autosomal test results with its DNA database to estimate a user's ethnicity and identify relationships with unknown relatives. While there have been instances of law enforcement agencies using DNA sites like Ancestry.com to investigate crimes, users have the right to request the deletion of their Personal Information, including DNA Data, from the Ancestry platform at any time.
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International law enforcement access
International law enforcement authorities may submit requests for emergency disclosure to Ancestry.com Operations Inc. (located in the United States) and Ancestry Ireland Unlimited Company (located in Ireland). The company will provide responsive records in accordance with applicable law and its policies.
Ancestry's policy on law enforcement requests is that "for all requests, Ancestry requires valid legal process in writing before producing any personal information about our users. We comply with legitimate requests in accordance with applicable law." In the United States, this means that Ancestry will release basic subscriber information about its users to law enforcement in response to a valid trial, grand jury, or administrative subpoena. Additional account or transactional information (such as search terms) will only be released in response to a court order issued pursuant to 18 USC § 2703(d). Contents of communications and any data relating to the DNA of an Ancestry user will only be released pursuant to a valid search warrant.
In 2023, it was reported that the Riverside County Regional Cold Case Homicide Team uploaded a victim's DNA profile to MyHeritage in violation of that company's terms. MyHeritage's terms and conditions explicitly state that "using the DNA Services for law enforcement purposes, forensic examinations, criminal investigations, 'cold case' investigations, identification of unknown deceased people, location of relatives of deceased people using cadaver DNA, and/or all similar purposes, is strictly prohibited, unless a court order is obtained." GEDmatch, a database that acts as a collector for DNA test results, was the first database to be used successfully by law enforcement.
In 2018, Ancestry self-reported that it had released a customer's DNA sample to police in compliance with a search warrant. The company received nine valid law enforcement requests in 2016 and provided information on eight of the requests to government agencies. All of these requests were related to credit card misuse and identity theft.
While 23andMe has never given customer information to law enforcement officials and does not allow third-party access to its genetic data, the company has stated that it "may be required by law to comply with a valid court order, subpoena, or search warrant for genetic or personal information."
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Frequently asked questions
Law enforcement can access Ancestry DNA under certain circumstances. In the US, a valid trial, grand jury, or administrative subpoena is required for basic subscriber information. A court order is required for additional account information, and a valid search warrant is required for the contents of communications and any data relating to DNA.
Ancestry's policy is to notify users of requests for their information and provide a copy of the request prior to disclosure unless legally restricted from doing so. However, in some cases, users have not been aware that their DNA data was being searched.
In the US, law enforcement can submit an emergency disclosure request if there is an imminent danger of death or serious physical injury, and international law enforcement authorities can also submit requests for emergency disclosure. In some cases, law enforcement has been able to access DNA data without a warrant by using sites like GEDmatch or FamilyTreeDNA, which do not require a warrant for access.
Privacy concerns have been raised due to a lack of federal oversight, with user confidentiality left to the discretion of database owners and operators. There are also concerns about the potential for prosecution of individuals who are not a threat to society, such as mothers who were unaware they were pregnant or lacked access to health care and social services.
