23andMe is a popular at-home DNA testing kit that provides consumers with information on their ancestry, health, and other genetic traits. With over 12 million customers, 23andMe holds a vast database of genetic information. This has led some to question whether 23andMe shares customer DNA data with law enforcement. There are understandable privacy concerns around law enforcement access to private genetic data. This article will examine 23andMe’s policies on working with police and the laws around genetic privacy.
Does 23andMe Give DNA Directly to Police?
The short answer is no, 23andMe does not give customer DNA directly to law enforcement. 23andMe is clear in their privacy policy that they will not release your personal information or genetic data to law enforcement unless required by law to comply with a valid court order, subpoena, or search warrant. Absent a legally valid request, 23andMe will not share your data with police.
23andMe’s Commitment to Customer Privacy
23andMe takes customer privacy very seriously. Their privacy policy states:
“23andMe will preserve and protect its customers’ privacy and confidentiality. 23andMe will not disclose to law enforcement authorities’ customer Data or Results unless compelled by valid legal process (i.e. a court order, subpoena, or search warrant).”
23andMe makes their policy on working with law enforcement clear – they will resist unless compelled by a legally enforceable demand. 23andMe has stated they have never given customer information to law enforcement voluntarily. Any requests have been met with legal resistance or compliance only when legally obligated.
What Data Does 23andMe Provide Under Legal Obligation?
If 23andMe is compelled by valid legal process to provide customer data to law enforcement, they state they can only provide limited information, including:
- Name
- Date of birth
- Gender
- 23andMe kit ID number
- Origins report information
- DNA segments that match another individual in the 23andMe database
Importantly, 23andMe cannot provide complete genetic profile data in their standard format to comply with requests. They can only provide raw DNA segments that match another individual.
Can Police Submit DNA to 23andMe for Matching?
Police can submit DNA samples from crime scenes to 23andMe and ask if they match any profiles in their DNA database. However, there are strict legal limitations around this practice to protect privacy.
Familial Matching Policies
While most direct matching requires a warrant, some states allow “partial” or “familial” matching searches without a warrant. With familial searches, police submit DNA hoping to identify family members of the criminal. 23andMe allows familial matching for suitable violent crimes, but place limits on law enforcement access:
- Only uploads of data from crime scenes allowed, no searchable profiles
- Only violent crimes with a public safety concern are eligible
- Thorough legal validation is required before any familial match is provided
These policies restrict police fishing expeditions and indiscriminate searches. All familial searches are manually reviewed by 23andMe’s legal team and external counsel.
Maryland v. King Supreme Court Ruling
In the precedent-setting Maryland v. King case, the U.S. Supreme Court ruled police can collect DNA without a warrant from people arrested for serious crimes. This case greatly expanded police power to collect samples for matching against private databases.
However, the Court noted stringent rules still govern how law enforcement can use DNA matching against private company databases like 23andMe’s. These restrictions protect customers against unreasonable “suspicionless, warrantless searches” of private data.
Has 23andMe Ever Given DNA to Police?
There is no public evidence of 23andMe ever voluntarily providing customer DNA information to law enforcement. However, 23andMe states that they do comply with valid legal requests, typically warrants related to violent crimes. Some examples:
- In 2019, 23andMe confirmed they complied with a search warrant to provide DNA matching in a cold case.
- 23andMe also complied with a 2018 search warrant to identify a 1987 double murder suspect using familial matching.
- Local police comments indicate 23andMe has aided investigations when compelled by warrant.
While these warrant-based disclosures are concerning for privacy advocates, 23andMe demonstrates they resist giving customer data to police unless legally forced to comply.
What Legal Protections Exist for Genetic Privacy?
U.S. legal protections for consumer DNA privacy remain limited compared to other nations. However, some safeguards have emerged:
Genetic Information Nondiscrimination Act
The federal Genetic Information Nondiscrimination Act (GINA) provides some protections against health insurance and employer discrimination based on genetic data. However, GINA does not cover life, disability, or long-term care insurance.
State Genetic Privacy Laws
A patchwork of state laws provides genetic and biometric privacy protections. Strong examples include:
- Alaska – Broad genetic privacy law banning unauthorized collection or disclosure.
- Nevada – Comprehensive biospecimen law with consent requirements.
- New Jersey – Limits how police can use familial matching searches against state DNA databases.
However, most states lack comprehensive genetic privacy statutes. Federal consumer protections have been proposed but not enacted.
FTC Enforcement of Unfair and Deceptive Practices
The Federal Trade Commission (FTC) polices privacy policies of DNA testing companies. Violations of privacy terms can prompt FTC investigation and fines for unfair and deceptive trade practices. This provides incentive for 23andMe to stick to its privacy policy.
Trends in Law Enforcement Use of DNA Databases
DNA profiling and familial matching are powerful tools for solving crime. However, privacy advocates caution against unchecked expansion of police bio-surveillance. Some trends in law enforcement DNA use:
Rapid Growth of Law Enforcement DNA Databases
State and federal DNA crime databases have expanded exponentially in recent decades. All 50 states require collection of DNA from people convicted of certain crimes. With over 18 million profiles, the FBI’s CODIS database grows daily.
Police access to private DNA databases is also increasing. For example, FamilyTreeDNA allows free familial searches of its records by the FBI.
Erosion of Warrant Requirements
Court rulings and state laws have eroded warrant requirements for DNA collection and database searches in many jurisdictions. Nearly half of states allow collection from arrestees without conviction. Courts are divided on whether familial matching constitutes a Fourth Amendment “search.”
Few Rules on Long-Term Retention of DNA
Critics argue for stricter limits on how long law enforcement can retain DNA samples and data, especially from non-convicted people. Few states mandate removal of profiles from DNA databases if charges are dropped. Destruction of samples after analysis is also rare.
Expansion Beyond Violent Crimes
Many advocates warn against law enforcement mission creep, using DNA to prosecute low-level crimes and ignore privacy in the name of public safety. Several states collect DNA from all felons, regardless of offense. Some allow collection for misdemeanors.
| DNA Database | Number of Profiles | Growth |
|---|---|---|
| FBI CODIS Database | Over 18 million | Rapid expansion |
| 23andMe Customer Database | Over 12 million | Steady growth |
Conclusion
While 23andMe takes their customer privacy obligations seriously, legal constraints on genetic data sharing with police remain limited. 23andMe does comply with valid warrants, typically in violent criminal cases. However, the company cannot provide complete customer genetic profiles to law enforcement.
Broader consumer protections for genetic and biometric data are still emerging. There are valid public safety needs for DNA profiling in serious criminal cases with judicial oversight. However, privacy advocates caution against a wholesale erosion of Fourth Amendment rights in the name of law enforcement DNA hunting expeditions. Comprehensive federal and state legislation is likely needed to balance public safety, innovation in genomics, and personal privacy. Until such a legal framework emerges, consumer genetic data will remain in a precarious position between private commercialization and public bio-surveillance.