January 22, 2024Words, Words, Words: Ancestry’s new Terms and Conditions remain vague for IGG

by David Gurney, JD/PhD – Director, Ramapo College IGG Center

New Boss, (Mostly) Same as the Old Boss

On January 17, 2024, Ancestry updated its Terms and Conditions (TaC) and Privacy Statement (PS). Some IGG practitioners are anxious over one new provision, which reads: “In exchange for Access to the Services, you agree: . . . Not to use the Services in connection with any judicial proceeding.”

If this provision includes IGG, then it is certainly cause for concern. 

Ancestry’s services sweep wide. 

They include not only tree building but access to public records held in Ancestry’s databases, which encompass sites like Newspapers.com, Find a Grave, and other essential repositories of public records that Ancestry owns. 

If Ancestry truly banned IGG practitioners from accessing these services—and if IGG practitioners took Ancestry’s suggestion that “[if] you do not agree to these Terms, you should not use our Services”¹—IGG would become much more difficult, leaving violent criminals on the streets and families of victims and missing relatives without closure. 

This post is meant to reassure the IGG community that, at least for now, Ancestry has decided to remain vague rather than address the issue of IGG head-on, and the new terms change little for IGG (though how Ancestry interprets its own terms is, as always, a black box), except perhaps for IGG practitioners who work on Maryland cases. 

The clearest threat in the new language is to forensic genealogists who practice in heir searches and oil and mineral rights. 

 “It Depends on What the Meaning of the word ‘is’ is”

Before I explain why IGG can almost never be considered part of a judicial proceeding, I must address a change in Ancestry’s language w/r/t judicial proceedings. 

In both previous and current versions of the TaC, Ancestry forbids the use of any “information obtained from the DNA Services . . . in any judicial proceeding[.]”² The new terms—in addition to applying the ban to all of Ancestry’s services, not just its DNA services—use a different phrase: not “in any judicial proceeding” but “in connection with any judicial proceeding.” 

The question is whether the latter phrase is broader than the former. Looking at the phrase’s ordinary meaning shows that it is not. 

But first, advocatus diaboli. 

You might argue that the phrase “in connection with” sweeps as broadly as Ancestry’s services. Think of an IGG case involving the tentative identification of a violent criminal, the goal of the investigating agency is to bring a criminal case against the perpetrator in a judicial proceeding. Even though IGG occurs before any judicial proceeding begins, isn’t IGG being used “in connection with” a future judicial proceeding here? And, therefore, don’t Ancestry’s new TaC forbid the use of its services for IGG?

Courts looking to interpret a phrase will first look to see if the document containing the phrase provides a definition (Ancestry’s TaC do not), and barring that, will turn to the humble dictionary. 

Here, various dictionaries provide synonyms such as “about”, “concerning”, “regarding”, and so on, and Webster’s defines the phrase as “in relation to (something).”

Do these interpretations vindicate the view that Ancestry’s new TaC forbid the use of its services for IGG?

Well, no, at least not in the ordinary sense of the phrase “in connection with”. The dictionary is unhelpful here, and when that is the case, courts turn to something even more powerful: the ordinary use of a phrase. When we, too, make that turn, the meaning of “in connection with” in this context becomes clear.

Consider an analogy: 

Imagine that a large computer company offers its services to the public in general. The company is concerned about the appearance of impropriety if its services are used in a public-school graduation ceremony, so it includes a provision that reads: “Our services may not be used in connection with a public-school graduation ceremony.” 

Now, imagine that a public high school adopts the computer company’s services for use in its classrooms and administrative offices. But the school is careful not to use the services during its graduation ceremonies so as not to fall afoul of the terms of service. 

Nevertheless, at a school-board meeting, a parent takes the microphone and says that the school must stop using the computer company’s services in any way. The parent argues that, after all, one of the primary goals of public school activities, both in the classroom and in the administrative offices, is to move students toward graduation. Indeed, a graduation ceremony is inevitable. Thus, the parent argues, any use of the computer company’s services by the school is “in connection with a public-school graduation ceremony.” 

This, I hope it is clear, is an unreasonable understanding of the phrase “in connection with.” It includes any activities that might lead to a particular outcome—in this case, a graduation ceremony. Heck, a student’s use of the computer company’s services for homework would be banned under this interpretation. 

The parent’s interpretation is not just unreasonable when considering the ordinary use of the phrase. It is further unreasonable due to another rule of judicial interpretation: if the drafter of a document intended a provision to have a particularly broad impact, they would have made a clear statement to that effect. If the computer company’s intention was to forbid the use of its services for any activities with any relation to a public school graduation ceremony, they would have done so plainly. They would not have hidden that intention in vague language. 

Rather, the computer company’s intention—based on the most reasonable reading of its language—was to ban the use of its services as part of a public school graduation ceremony, which includes the ceremony itself and likely any activities directly related to it, such as promotional materials.

Ditto with Ancestry’s new TaC. 

The use of “in connection with” does not implicate all activities that precede a judicial proceeding that may or may not come to be. The most reasonable reading of the phrase, instead, includes a judicial proceeding itself and activities directly related to it, which I will describe in more detail below. 

What is a “Judicial Proceeding” Anyway? 

So, the question becomes: is IGG part of a judicial proceeding? 

Again, the answer is no, in almost every context. 

Cornell Law School’s Legal Information Institute defines a judicial proceeding as “any proceeding over which a judge presides [] [which] may include quasi-judicial proceedings [where any officer of the court exercises judicial functions that make legal determinations].”

The overwhelming majority of IGG work will never take place within a context where a judge or other official presides and where legal determinations are being made. 

IGG nearly always takes place before any judicial proceeding, as it is inherently investigative in nature. IGG practitioners are hired by (or work for) investigating agencies to help identify leads. Those leads may produce evidence that is then used in a criminal case or by a medical examiner. 

There are three contexts where IGG work might be considered as part of a judicial proceeding, but all are murky. 

The first context is an IGG practitioner working on a Maryland case. Maryland’s law that regulates IGG requires a judge to sign off before IGG begins, and there is judicial oversight built into the entire process. There, IGG could be seen as occurring as part of a “judicial proceeding,” and thus, the use of Ancestry’s services would be forbidden. But even there, it’s not entirely clear that the IGG work itself occurs as part of a judicial proceeding. The act of getting the warrant signed by the judge is undoubtedly a judicial proceeding since the judge is overseeing a particular event and applying the law. But unless IGG work is used in that warrant hearing–which it wouldn’t be since it wouldn’t have begun yet–the judicial proceeding is limited to the specific event of signing the warrant. At the same time, the IGG work might seem to be at least part of a judicial proceeding here, as it is allowed to go forward only because a judge has signed off on it.

The second context is again within the confines of Maryland’s law. That law requires judicial notification if a prosecutor wishes to obtain a covert sample from a reference tester. Perhaps notifying the judge constitutes a judicial proceeding. But two questions arise: does that proceeding include use of Ancestry’s services? And, if so, is the one using those services bound by Ancestry’s TaC? These questions are not easy to answer. In arriving at the identity of the reference tester, Ancestry’s services may have been used. Thus, providing the name of the reference tester to the court is arguably a use of Ancestry’s services as part of a judicial proceeding. Yet, the prosecutor is not bound by Ancestry’s TaC (unless they conducted the IGG themselves), and it is the prosecutor who is using Ancestry’s services here as part of a judicial proceeding. It is not clear that the IGG practitioner’s actions in generating the identity of the reference tester constitute the same. But again, if you take the view that all IGG work conducted in a Maryland case is part of a judicial proceeding since a judge signed off on it, then the interpretation changes.

The third context is where an IGG practitioner testifies about their findings either in pre-trial or at the trial itself. This context is particularly murky since the IGG work itself—and the use of Ancestry’s services—will have occurred before the judicial proceeding; indeed, before it was even certain that there would be a judicial proceeding. Assuming the case is not in Maryland, at no time did the IGG practitioner use Ancestry’s services as part of a judicial proceeding. By the time of the judicial proceeding, those services have already been used. They helped lead up to the judicial proceeding but are not a part of it. Think again of the public high school graduation ceremony. 

Words, Words, Words

Ancestry has chosen to keep its TaC vague as they apply to IGG practitioners’ use of Ancestry’s services. 

They did not have to. 

Ancestry’s previous and current Privacy Statement contains the following sentence: “We do not allow law enforcement to use the Services to investigate crimes or to identify human remains.” Some have taken this statement to forbid the use of Ancestry’s services for IGG. But the statement must be taken in context. The Privacy Statement document is about how Ancestry will act, it is not about how users of Ancestry should act. The statement about IGG occurs as part of a description of how Ancestry will share information. Before the statement, Ancestry notes that it does not voluntarily provide data to law enforcement. They are talking here about law enforcement who comes to Ancestry and asks them to turn over information about individuals. We all know that Ancestry will not comply with these requests without a warrant. This context is important. 

Ancestry could have chosen to import that phrase—“We do not allow law enforcement to use the Services to investigate crimes or to identify human remains”—into its new TaC for users of Ancestry’s services. 

Instead, Ancestry chose to remain vague. 

Why, is anyone’s guess. 

Forensic Genealogy

There is some genealogical work that clearly takes place in the context of a judicial proceeding. 

Forensic genealogists who work on locating heirs to estates, real estate, and  mineral and oil rights cases are frequently hired as part of an ongoing judicial proceeding—sometimes even by the court itself. 

I would argue that it is these forensic genealogists who should be most concerned with Ancestry’s new TaC. 

What Happens Next for IGG

Is unclear. 

I believe my interpretation here is correct based on the language that Ancestry has used. But again, what Ancestry intends in its soul is inaccessible. 

I hope that business will continue as usual and that Ancestry will not clarify its terms to explicitly forbid IGG—or use its existing terms to ban users.

Either step would be, in my view, an act of cruelty. 

IGG practitioners use Ancestry services primarily for access to public records. Many—but not all—of these records can be accessed elsewhere, but doing so requires more work, and more time. Time that cold cases, with all their attendant suffering, will remain unresolved. 

Ancestry cannot stop IGG, but they can, if they choose, slow it down.

If that is Ancestry’s goal, only time will tell.

__

¹The use of “should” here is unusual. Typically, when a company wants to block certain activities on its sites, it will do so using terms like “must” and “shall.” “Should” is a vague term. As this blog post will make clear, vagueness is Ancestry’s hallmark, so it is no surprise that they retain it here.
²This provision caused little concern for IGG practitioners since they would be unlikely to be users of Ancestry’s DNA services themselves and so would not be bound by the provision.

 

Categories: terms of service

---