Sometimes a marketing pivot serves a truth-telling function. A new television ad for the consumer DNA database FamilyTreeDNA asks the public to share their DNA with the company not to find out whether they’re at high risk for breast cancer, whether their ancestors were black, or what their Spotify playlist should include. Instead, the father of Elizabeth Smart, who was abducted in 2002, observes that “when a loved one is a victim of a violent crime, families want answers. … If you are one of the millions of people who have taken a DNA test, your help can provide the missing link.”
FamilyTreeDNA makes explicit the use of consumer DNA testing that law enforcement agencies have increasingly relied on to solve cases. When police identified Joseph DeAngelo in 2018 as the suspected Golden State Killer responsible for a series of rapes and murders in California several decades ago, they did so with the aid of genetic genealogy: the combination of genetic matching and traditional genealogical methods. Police uploaded crime scene DNA to GEDmatch, a free service where people submit genetic information (typically from consumer testing services like 23andMe) to find relatives and ancestors. A genetic genealogist combined the identification of those genetically related to the then-unknown suspect with genealogical aids like birth records and newspaper clippings. DNA taken from his trash and car door confirmed the match between DeAngelo and the crime scene evidence.
The two largest DNA testing companies take the position that they will provide customer data only with a lawful order like a subpoena or a warrant. Indeed, 23andMe is explicit in its position of using “all practical and legal administrative resources to resist such requests.” FamilyTreeDNA distinguishes itself by not just allowing law enforcement access to its consumer data but embracing the tactic. It asks consumers to contribute genetic information for the express purpose of helping the police solve crimes. (If you’ve taken a DNA test elsewhere with a competing company, you can upload your file for free to FamilyTreeDNA.) This marketing shift follows its earlier acknowledgment that the company had already been working with the FBI. As a result, the company is effectively crowdsourcing criminal investigations.
But when you volunteer your DNA sample, you’re volunteering your genetic family tree, without having asked your parents, siblings, cousins, and distant cousins if they agree. That upends the usual way we think about providing information to law enforcement. You can’t give the police lawful consent to search your third cousin’s house, even if your third cousin (who you may never have met) is suspected of having been involved in a serious crime. Why are we allowing a distant relative to grant police permission to your DNA?
And genetic genealogy creates difficulties for the relative who objects to your volunteering the genetic family tree to law enforcement. A woman whose DNA on GEDmatch recently helped lead to the arrest of a second cousin twice removed told a local Iowa newspaper that before she got the test done, her brother raised concerns about getting a family member arrested. But her brother’s objections didn’t mean much. The consumer DNA companies don’t appear to allow relatives to raise privacy objections to submitted genetic samples. And should a relative later be charged with a crime with the help of genetic genealogy, the Fourth Amendment would be unlikely to allow the relative turned suspect to object to the way he was identified. Even if a relative convinced you that the submission of a DNA sample to a consumer database was regrettable, it turns out that “deleting your DNA” is a very difficult thing to do.
Becoming a genetic informant on your extended family isn’t the only issue here. On its website, FamilyTreeDNA says law enforcement access to its database is limited to cases “identifying the remains of a deceased individual or a perpetrator of a homicide or sexual assault.” Today law enforcement agencies appear to be relying on these consumer DNA databases for long-unresolved homicide cases. And few would object to solving the Golden State Killer case, which involved dozens of violent crimes spanning more than a decade. For now, the genetic genealogy used in that case is time-consuming, and following all of the potential leads raised by a partial DNA match takes considerable police resources.
But if history is any guide, these means will become easier and cheaper to use. Police already use direct DNA matches to solve crimes like auto theft and burglary. Imagine if a distant relative’s decision to submit DNA led to your 13-year-old self being arrested for spitting on the bus.
Perhaps you wouldn’t object. Perhaps you think everyone committing a crime, no matter how minor, should be caught. Then, legislators should have a direct and open conversation about a population-wide database: a DNA sample compelled from every person in the United States for the purposes of law enforcement. If that is the goal, we should arrive there directly, not as a de facto matter.
And that leads to perhaps the biggest question raised by FamilyTreeDNA’s ad spot. These are urgent questions about the proper balance between privacy and law enforcement and individual and familial rights. Yet it is a private company making these policy choices, changing the conversation, and shaping its terms. Few would respond well to the question: “Join us as a genetic informant!” But many will likely be moved to “help bring closure to families and victims.” Nor should we forget that while contributors may feel altruistic, the company has many motives. Although uploading your genetic file is free, you can “unlock” all of the company’s features for only $19.