Interested in Genealogy? Have an Undiscovered, Violent Criminal Past? [Reformed] Criminal, Beware!
By Ken K. Gourdin
At Mormon Dialogue and Discussion, there is a discussion of a link to a story about cops mining genealogy sites such as Ancestry.com in an effort to solve cold cases. See here, (this and all other links last accessed April 17, 2018):
Mormons take seriously Christ’s injunction to Nicodemus that “Except a man be born of water and of the spirit, he cannot enter into the kingdom of God” (John 3:5), and they (we!) also believe that Paul was referring to an actual ordinance when he wrote, asking the Corinthians, “Else what shall they do which are baptized for the dead, if the dead rise not at all? Why are they then baptized for the dead” (1 Corinthians 15:29). We believe that baptism, even for the dead, is an earthly ordinance, one reason being purely practical: How, exactly does one baptize a spirit? We believe that these and other ordinances necessary to save our ancestors who passed on without having the opportunity to receive them in this life can be performed by proxy in one of the faith’s temples.
I wrote (asterisked footnotes have been added):
Hmmm … I’m somewhat of two minds about this. This comes with the usual caveats: I am not a lawyer; anyone who is concerned about the privacy implications of such issues as this should contact an attorney who is licensed to practice in the jurisdiction where the questions arise. Now that we’ve gotten that out of the way [Sigh!]* . . .
If a person voluntarily surrenders something, he usually surrenders a privacy interest in the thing surrendered, as well.** And if a contract I sign says, “We’ll turn this information over to law enforcement if approached with a duly-authorized, properly-issued subpoena, search warrant, or similar instrument,” the government’s public policy interest in investigating crime and in prosecuting criminals probably outweighs my privacy interest. And courts have upheld taking DNA from, say, a discarded cigarette butt or a discarded soda can.
On the other hand, I don’t think a defense attorney who says, “Hey, my client’s DNA profile on Ancestry isn’t just garbage. And besides, he surrendered it for the narrow purpose of connecting with his roots and relatives, not so the government could come pawing through his surrendered data any time it feels the urge” would be laughed out of court, either.**
It’s a brave, new world, folks. Orwellian? You decide!
* It might be worth it for me to at least try to get licensed somewhere (longshot though it may be) if for no other reason than that it would mean I would no longer have to deliver that tiresome caveat every damn time I want to opine on anything having even remotely to do with the law.
** Regarding any continuing privacy interest a person may have (or not) in his discarded refuse, see California v. Greenwood, 486 U.S. 35 (1988). For the case’s full text, see the following address:
However, the Court did not find the argument Greenwood used—essentially, that, “Hey, I surrendered my garbage simply so it could be picked up and properly disposed of, not so law enforcement could go pawing through it anytime it felt like it”—persuasive, ruling, essentially, that he had surrendered any privacy interest in his refuse by discarding it, and that, therefore, it was fair game for law enforcement.