I am not an attorney and any comments I post are not intended, nor should they be construed, as legal advice. If you need legal advice, please consult a legal expert who is familiar with the area of legal expertise you need.
I originally started this blog post back on February 4, 2019 after seeing what GEDmatch – Horseshoes and Hand Grenades — The DNA Geek and FamilyTree DNA (FTDNA) FamilyTree DNA Updates Its Terms of Service and Privacy Statement Regarding Law Enforcement Matching Preferences had done back then. I put it on the back burner as it’s not an easy topic to address, and I was waiting to see where it would go. I appreciate that people want justice, but doing so at the cost of violating our Constitution is too high a price. I find it disappointing that so many have no problem with such disregard that GEDmatch, FTDNA, and several other companies have taken when it comes to operating as extensions of law enforcement. It’s sad that so many DNA experts have either come out on the side of this is okay or have not said anything one way or the other. I can only think of a few experts who have opposed what FTDNA and GEDmatch have done.
I stayed quiet on the GEDmatch – https://genesis.gedmatch.com/login1.php law enforcement policy as I was waiting for a legal expert to raise an issue – most recent response – https://upsdownsfamilyhistory.wordpress.com/2019/05/16/withdrawing-a-recommendation-the-legal-genealogist. The decision by FamilyTree DNA (FTDNA) to allow law enforcement to use its databases without informing customers crossed the line worse than GEDmatch‘s original decision. FTDNA should have said bring it on as there are plenty of groups out there who would have funded the lawsuit against law enforcement for so many court orders; hopefully, many judges would have considered it an overreach by law enforcement as well. The latest decision by GEDmatch makes FTDNA‘s decision tame in comparison.
Both companies are acting as arms of law enforcement by their efforts since they were not requiring law enforcement agencies to provide court orders before opening the barn door. These are basically fishing expeditions and many states have laws against law enforcement agencies engaging in fishing expeditions. Some U. S. Supreme Court (SCOTUS) rulings have also prohibited fishing expeditions by law enforcement agencies although SCOTUS sometimes allows them.
Aside from my post, DNA evidence and miscarriages of justice – ScienceDirect, where I re-blogged the Science Direct article, there are other issues to be raised.
In my personal opinion, I do not believe the Founding Fathers would consider fishing expeditions constitutional. Also, companies or individuals who voluntarily act as arms of law enforcement should be held to the same standards as law enforcement are held to – needing warrants or other court orders. I also don’t believe digging through trash or collecting DNA samples left at a police station when you bring somebody in for question would pass as acceptable to our Founding Fathers.
Let’s consider the following types of law enforcement and prosecutors: bad, corrupt, evil, lazy, apathetic, overzealous, and/or incompetent. In my experience, people in general fall into one of three camps on the above topic. Group 1 – none or very few law enforcement or prosecutors fall in any of these categories; Group 2 – most or all law enforcement or prosecutors fall in one or more of these categories; Group 3 – a fairly sizeable number of law enforcement or prosecutors fall into one or more of the above categories. Does it matter if you or a loved one is falsely accused and convicted due to one or more of the above categories? No, it doesn’t. An overzealous law enforcement or prosecutor is just as bad as any of the other categories. I believe Group 3 is where a substantial number of law enforcement and prosecutors fall.
I have known police and prosecutors who were ethical for the most part, but given the opportunity to put out away somebody who they think is guilty of a major crime would have few, if any, qualms about crossing the line. That includes things that are definitely not ethical. Once you cross that line for a major crime, it becomes much easier to cross it for lesser crimes.
To those who claim “If you have nothing to hide, you should support what FTDNA and GEDmatch are doing” wait until you or a loved one gets caught up in a case where law enforcement or a prosecutor crosses the line because they believe you or your loved one is guilty. History is full of examples where such questions were raised by those in power to quash dissent or make you appear to be disloyal or a criminal because people opposed a policy.
Let’s look at some simple problems – if you use the Science Direct link in my post above or go to https://www.sciencedirect.com/science/article/pii/S0379073818307436, you get a number of incidents where DNA was used to wrongly convict or accuse individuals. This is much more common than you might think. Over 360 convictions have been overturned in the U. S. alone by DNA related work since 1989 and another 1,500+ have been exonerated based on DNA and non-DNA evidence – https://en.wikipedia.org/wiki/Innocence_Project#Overturned_convictions.
What’s to stop GEDmatch from allowing Private and Research only kits from being added to the mix since they have made it clear that Terms of Service (TOS) is meaningless to them? It won’t matter if your kit or kits you manage are later made Private or Research if you ever let it be known that the kit is on GEdmatch.
What’s to stop law enforcement from slipping in a FTDNA kit they purchased to get around those who opt out of law enforcement matches?
I used to work for one county government and several federal agencies and have seen the excesses, unethical, and unconstitutional actions up close and personal. As somebody who has dealt with, personally and work-related, government agencies from local to federal, I have also seen plenty of times where those who knew the laws, rules, and regulations had no problem crossing the line when it suited them.
As somebody who has studied history for decades, I have seen many times where somebody in the interest of stopping something ignored or changed the laws in place.
A point I made back in March 2019:
How long before a court throws out a conviction that was achieved as a result of a DNA company or website allowing law enforcement to do an end-run around the Constitution?
Unfortunately, the courts have a bad habit of ignoring the Constitution when it suits them. Also, what happens when somebody is wrongly convicted because law enforcement and/or prosecutors make a bad guess as to who they think the DNA belongs to?