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Washington University Law Review Online Washington University Law Review Online VOLUME 98 2020 COLD CASES FREEZE: LAW ENFORCEMENT LOCKED OUT OF DNA DATABASE USED FOR INVESTIGATIVE GENEALOGY AFTER CONSUMERS OBJECT TO BEING GENETIC INFORMANTS NANCI K. CARR* ABSTRACT California’s infamous Golden State Killer, Joseph James DeAngelo, a serial killer and rapist, committed a string of crimes during the 1970s and 1980s, and avoided capture for more than 40 years until genetic data available online led to his arrest. His capture caused users of popular testing services such as Ancestry and 23andMe to question whether their genetic data was freely available to police investigators. By using one of these services to learn about their great-grandparents, users may not want law enforcement to use their data to solve a cold case involving one of their living relatives. To prevent that, GEDmatch, a free website for sharing DNA profiles, changed its terms of service and locked out law enforcement unless consumers agreed to permit access to their profiles. Does the value to society of solving the cold case outweigh any privacy issues of the consumer using the testing service? Should control over these decisions rest with a testing service that can change its terms of service on a whim? * Nanci K. Carr is an Assistant Professor of Business Law at California State University, Northridge (“CSUN”). J.D., cum laude, Southwestern Law School; B.S., Business Administration, Ball State University. Thanks to research assistant Angeline Gomez, CSUN Class of 2019. 1 2 WASHINGTON UNIVERSITY LAW REVIEW ONLINE [VOL. 98:1 TABLE OF CONTENTS INTRODUCTION ............................................................................................ 2 I. THE SCIENCE BEHIND DNA TEST KITS ................................................... 4 II. POLICE INVESTIGATIONS AND GEDMATCH ........................................... 6 III. PLEDGES TO PROTECT USER PRIVACY .................................................. 9 A. Federal Privacy Regulations ......................................................................... 9 B. Privacy Best Practices for Consumer Genetic Testing Services .................. 10 C. FamilyTreeDNA Removed from List of Best Practices’ Participants .......... 12 IV. GEDMATCH RESTRICTS LAW ENFORCEMENT .................................... 13 CONCLUSION ............................................................................................. 14 INTRODUCTION Recently, there has been a significant rise in popularity of at-home DNA test kits, with over twenty-six million consumers 1 utilizing direct-to- consumer (“DTC”) genetic testing services2 to learn about their ancestry, family history, community, health risks, and family planning.3 For example, in a well-known television commercial for AncestryDNA, a man, surprised to learn that his ancestors were not German, but rather Irish, exclaims, “So, I traded in my lederhosen for a kilt!”4 Other commercials in the series reveal more pleasant surprises. 5 While such surprises may make for fun 1. Antonio Regalado, More Than 26 Million People Have Taken an at-Home Ancestry Test, MIT TECH. REV., (Feb. 11, 2019), https://www.technologyreview.com/s/612880/more-than-26-mi llion- people-have-taken-an-at-home-ancestry-test/ [https://perma.cc/MW7T-JCHE]. 2. What Is Direct-To-Consumer Genetic Testing?, GENETICS HOME REFERENCE, (Mar. 17, 2020), https://ghr.nlm.nih.gov/primer/dtcgenetictesting/directtoconsumer [https://perma.cc/4QBQ-X3K F] (“[G]enetic tests are marketed directly to customers via television, print advertisements, or the Internet, and the tests can be bought online or in stores. Customers send the company a DNA sample and receive their results directly from a secure website or in a written report . without . involving a healthcare provider or health insurance company . .”). 3. 3 Mistakes to Avoid When Shopping for a DNA Test: Your Free Guide to the Best Valued DNA Tests, GENETICS DIGEST, (2019) https://geneticsdigest.com/best_ancestry_genealogy_dna_test/ind ex_ctrl _n.html?gclid=EAIaIQobChMIv8bc08O5wIVUSCtBh1lugMSEAAYASAAEgJ3wvD_BwE& utm_expid=.a_tKXPb9TSiu456d3_Znig.2&utm_referrer=https%3A%2F%2Fwww.google.com%2F [h ttps://perma.cc/WS3C-Y4KT]. While there are many genetic testing services, the two largest and most popular organizations are Ancestry.com and 23andMe. Other smaller competitors include Family Tree DNA and MyHeritage. Elizabeth Weise, These Are the Top Companies Offering Genealogical DNA Testing to Learn About Your Family, USA TODAY, (Dec. 2, 2018, 8:19 PM ET), https://www.usatoday.c om/story/ news/2018/12/02/ genealogical-dna-testing-companies-ancestry-23-andme/2141344002/ [htt ps://perma.cc/D8H7-N69V]. There are ten million people in 23andMe’s data banks and more than fifteen million in Ancestry.com’s. Kashmir Hill & Heather Murphy, Your DNA Profile is Private? A Florida Judge Just Said Otherwise, N.Y. TIMES, (Dec. 30, 2019), https://www.nytimes.com/2019/11/05/business /dna-database-search-warrant.html [https://perma.cc/XS9K-W6QE]; see also FAMILYTREEDNA, https:/ /www.familytreedna.com (last visited Jan. 17, 2020) [https://perma.cc/A4GZ-VJLU?type=image]; MYHERITAGE, https://www.myheritage.com (last visited Jan. 17, 2020) [https://perma.cc/EHS4-7RB3]. 4. Ancestry, Kyle | Ancestry Stories | Ancestry, YOUTUBE, (June 13, 2016), https://www.youtub e.com/watch?v=84LnTrQ2us8 (listing 440,998 views as of Jan. 31, 2020). 5. See, e.g., OzLandTV, Ancestry DNA Kit TV Commercial 2016, YOUTUBE, (Mar. 18, 2017), https://www.youtube.com/watch?v=OJJzXXCI9EE; Ancestry, Katherine & Eric | Testimonial | 2020] COLD CASES FREEZE 3 commercials, fifty-three--year-old Todd explains that “You can find something you really don’t want to know.”6 He learned that his mother’s sisters were not his aunts, but rather half-aunts, and he struggles with the decision about whether to tell his mother the truth about her family.7 He said “I think they should issue [a] warning” that there may be surprising results.8 While most such services do have warnings, many people miss them.9 These types of surprises and their lack of warning have started raising questions of privacy, as some distant relatives may not want to be found, and some secrets regarding the parentage of children were intended to be kept just that—secrets.10 One of the biggest unwelcome surprises was endured by the family of Joseph James DeAngelo, California’s infamous Golden State Killer, who was tracked down and arrested through a DNA link to a distant relative.11 DeAngelo, a serial killer and rapist, committed a string of crimes during the 1970s and 1980s, and until recently had avoided capture for more than 40 years.12 The utilization of genetic data to create family trees and identify criminal suspects is known as investigative genetic genealogy.13 This is Ancestry, YOUTUBE, (July 28, 2016), https://www.youtube.com/watch?v=GRZoV8abnNk. “‘Almost every Ancestry customer finds something surprising as they embark on a self-discovery journey with us, and for most customers it’s something exciting and enriching . ,’” said Ancestry.com’s chief scientific officer in a statement to ABC News. Catherine Thorbecke & Sandra Temko, When a DNA Test Upends Your Identity, Some Find ‘Family’ in Secret Facebook Group, GOOD MORNING AMERICA, (July 30, 2018), https://www.goodmorningamerica.com/news/story/dna-test-upends-identity-find-family-secret- facebook-56904359 [https://perma.cc/64Z7-PEPW]. 6. Sarah Zhang, When a DNA Test Shatters Your Identity, THE ATLANTIC, (July 17, 2018), https ://www.theatlantic.com/science/archive/2018/07/dna-test-misattributed-paternity/562928/ [https://perm a.cc/5MY9-2883]. 7. Id. 8. Id. 9. Id. (noting that 23andMe and AncestryDNA have warnings in their terms of service, and “allow users to opt in or out of finding genetic matches”);see also Terms of Service, 23ANDME, (Sep. 30, 2019), https://www.23andme.com/about/tos/ [https://perma.cc/7YFM-ZZM4]; Ancestry Terms and Conditions, ANCESTRY, (July 25, 2019), https://www.ancestry.com/cs/legal/termsandconditions [https:/ /perma.cc/6825-69P3]. 10. Zhang, supra note 6; see also Your Privacy, ANCESTRY (Dec. 23, 2019), https://www.ancestr y.com/cs/legal/privacystatement [https://perma.cc/7BXF-R9SW] (“You may discover unexpected facts about yourself or your family when using our services. Once discoveries are made, we can’t undo them.”). After receiving an AncestryDNA membership as a birthday gift from her brother, Catherine St. Clair learned that the man who raised her was not her biological father. Thorbecke & Temko, supra note 5; Zhang, supra note 6. 11. Justin Jouvenal, To Find Alleged Golden State Killer, Investigators First Found his Great- Great-Great-Grandparents, WASH. POST, (Apr. 30, 2018), https://www.washingtonpost.com/local/pu blic-safety/to-find-alleged-golden-state-killer-investigators-first-found-his-great-great-great-grandpare nts/2018/04/30/3c865fe7-dfcc-4a0e-b6b2-0bec548d501f_story.html?utm_term=.76c51cd2e556 [https:/ /perma.cc/HTV8-853M]. 12. Id. 13. Investigative Genetic Genealogy FAQs, INT’L SOC’Y OF GENETIC GENEALOGY WIKI, https:// isogg.org/wiki/Investigative_genetic_genealogy_FAQs#What_is_investigative_genetic_g enealogy.3F (last visited Mar. 25, 2020); see also Maggie Fox, DNA Databases Can Send the Police or Hackers to Your Door, Study Finds, NBCNEWS (Oct. 11, 2018, 2:27 PM PDT), https://www.nbcnews.com/health/h 4 WASHINGTON UNIVERSITY LAW REVIEW ONLINE [VOL. 98:1 what helped investigators to track down DeAngelo and has led users of popular DTC genetic testing services to question whether their genetic data is accessible
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