Defense: FBI Violated Privacy Rights in IGG Process
Again, the FBI might have used the MyHeritage database.
I have been working on a large project for nearly six weeks that I hope to post next Monday. For now, though, I want to quickly look at the defense’s new motion to unseal the investigative genetic genealogy (IGG) materials.
The defense is suggesting in their latest motion that the FBI violated a contractual agreement between the user—or in this case, the FBI investigator that agreed to the website’s terms and conditions—and MyHeritage. According to the defense:
This Court’s Order is being abused by the State and the FBI to hide how IGG was used in this case, because what the FBI did violated its own rules and the rights of privacy genetic genealogy companies have promised.
In a post published February 14, I argued that the FBI might have used the MyHeritage database to identify a suspect. I will reiterate an excerpt from the MyHeritage terms and conditions:
[U]sing the DNA Services for law enforcement purposes, forensic examinations, criminal investigations, "cold case" investigations, identification of unknown deceased people, location of relatives of deceased people using cadaver DNA, and/or all similar purposes, is strictly prohibited, unless a court order is obtained. It is our policy to resist law enforcement inquiries to protect the privacy of our customers.
If the FBI used the MyHeritage database to identify Kohberger as a suspect—or if they violated a database’s terms and conditions in some other way—then what does that mean for Bryan Kohberger?
Well, not much. There is precedent in the law for a denial of a motion to suppress the evidence argued on this basis. According to a Minnesota court’s order in the case against Jerry Arnold Westrom:
Law enforcement’s possible violation of MyHeritage’s service agreement may subject them to action from MyHeritage, but the Court does not see any reason why this violation of a private company’s terms would implicate constitutional protections.
I look forward to seeing how this plays out. In the meantime, there is a hearing on Thursday, May 2, on whether or not to close the May 14 hearing.
Nothing to see here, I guess, as far as the Kohberger case is concerned. If the MyHeritage users don’t care (EDIT: and don't show they care by deleting their DNA profiles from MyHeritage), I guess I don’t care either. Though I do think there should be strong guide rails for LE DNA investigation, mostly for future manipulations, yet to be known. Any case worth using IGG for, is worth a judged-signed warrant.