Cutting Edge DNA Website Limited by User Backlash

At the end of last November, an article was posted on this blog that related to the use of genealogy websites by police to find and catch criminals utilizing DNA submitted by users, many from cold cases that were at one time considered unsolvable.

The article told the story of the arrest of Benjamin Lee Holmes who allegedly murdered a University of Central Florida student named Christine Franke in October, 2001.

The case had gone cold for close to eighteen years.

Orlando Police Department Detective Michael Fields was one of the few officers of the department who refused to let the case go. Using the genealogy website he was able to put puzzle pieces together that led to a familial match that ultimately led to fingerprint smudges found on a window sill at the scene of the homicide.

Police placed Holmes under surveillance and took a sample of his DNA from a discarded cigar butt. The DNA on that cigar matched the DNA left behind by the suspected killer at the Christine Franke murder scene, according to Detective Fields.

To read that full story posted late last year click here.

Since that article was posted Mr. Holmes entered a plea of not guilty to the charges. His public defender attorney told the press when questioned, “We don’t discuss clients or their cases without explicit consent and directions to do so from the client.”

As this case progresses there will be updates of further developments.

The website that was ultimately responsible for linking the killer’s DNA to the crime has recently been under scrutiny due to privacy issues brought up by its own users. Its original terms of service did not have an “opt out” clause for allowing its users to object to their DNA being shared with law enforcement agencies for all types of investigation of crimes.

Although GED’s original terms of service (TOS) clearly stated that if law enforcement inquired about using their work product for solving violent crimes of rape and murder it would provide it, it didn’t mention allowing police to use the collected DNA for lesser crimes.

Originally, John Olson, a transportation engineer along with Curtis Rogers, a retired businessman started as a technique gateway for adoptees who were searching for their birth parents, as well as assisting genealogists, professional and amateur researchers. The cost of joining the service is inexpensive compared to similar online genealogy sites.

Since its inception in 2010 it had at first been a hobby for Rogers. But since the service’s launch Rogers states that he knows of over 50 connections that helped police make arrests including the Golden State killer last April; a cold case that virtually stumped them for more than 40 years.

Rogers of Lake Worth was proud of his site’s unsolved crime fighting record and wanted to help authorities in any way he could in an assault case that happened in the western United States. But the crime of assault wasn’t listed in the TOS as a crime egregious enough to share with police by using any of the more than 1.2 million completed DNA kits that was in its possession.

Before law enforcement began using genealogy databases to aid with their investigations, the only official available DNA were records of samples provided by persons and suspects within the justice system. Prior to the introduction of these online websites all evidence relating to DNA in the United States was acquired from the Combined DNA Index System (CODIS). Additional DNA databases are stored by Interpol as well as other databases in several other countries.

The case that caused the uproar involved a police division from Utah that used GEDmatch to obtain the arrest of a high-school student who allegedly assaulted a elderly woman within the confines of a Mormon church. At the time of the assault the victim was seventy-one years old; the suspect is seventeen. Because the suspect is a minor, his name is being withheld.

It wasn’t a case involving sexual assault or murder, but Rogers allowed police to access GED’s database after being told that the woman was afraid her attacker would return to kill her.

However, after a BuzzFeed investigative article revealed how the company altered the rules to allow the local police to probe the company’s database for a case that didn’t follow GED’s own rules, the company responded by changing its terms of service after complaints of their willingness to do so commenced.

The new policies instituted last month are clearly added to and written within the original TOS in red text and can be found in multiple places within the online document (web page).

As is always the case with issues involving police investigations overlapping privacy issues there are two strong opinions on each side of this matter.

Joseph Zabel, a researcher at Stanford Law warned in a contemporary article that the benefits of professed forensic genealogy were dwarfed by the risk to privacy concerns.

Taken directly from his paper it was written that “technology progresses, and matches from relatives more and more distant are able to be made, the number of individuals who could be subjected to suspicion will grow… If investigators go back far enough, they will find that there is a killer inside all of us.”

It was also suggested by privacy advocates that suspicions that DNA outlining could falsely incriminate innocent people including relatives who never provided samples of their DNA, appear to have pushed the company into introducing new terms of service that required users to consent beforehand to have their data made available to law enforcement agencies.

Police will still be able to probe these sites for clues to very violent crimes that have long been unsolved; but after these recent changes a search warrant will have to be requested and provided; a call that has been pursued by civil liberties advocates.

Police organizations maintain that after successfully utilizing this somewhat new tool of investigation, the new regulations will throw a major obstacle in their way which may have to be ultimately resolved in the courts.

When interviewed by ABC News, cofounder Curtis Rogers told the news outlet that his company had received objections from its own users and other outside sources about providing law enforcement agencies unfettered access to its DNA database before the company decided to initiate its new TOS policy decision last month.

Rogers also believes there will be further legal battles as was agreed to by Paul Holes, a retired investigator who was the man that identified the Golden State Killer as Joseph DeAngelo after more than four decades of investigation without finding the DNA link and little concrete evidence of the connection.

In the BuzzFeed article he commented: “It would not surprise me, years down the road, if this could be a U.S. Supreme Court issue”.

Most other major genealogy websites have not made changes to their original terms of service to this point although since the concession by GED the possibility has become a major issue.

Two of the most popular sites, 23andMe and Ancestry currently don’t share their clients’ profiles with police by default which is achieved simply by leaving a checkbox unchecked on their sign up pages. The former also clearly states in its TOS that “Genetic Information you share with others could be used against your interests.”

A line written into Ancestry’s TOS states: “we will not share your Genetic Information with law enforcement unless compelled by valid legal process as described in our Privacy Statement.”

However, if warrants approved by courts became standard operational procedure for law enforcement, these companies may have little choice to submit to these orders.

The only other genealogy website that made changes to their TOS, although they were initiated before this latest case hit the headlines is FamilyTreeDNA.

Family Tree had previously made changes that restricted access to their acquired information for law enforcement after disclosing it shared genetic data with the FBI, although the company limited it to cases of those of alleged homicides, sexual abuse and those involving abductions. However, when signing up for their service, users are “opted in” to sharing by default.

Michael Cohen is a Fort Lauderdale based Criminal Defense Attorney specializing in the defense of federal crimes.

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