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Wednesday, May 24, 2017

Modern Problems: Ancestry.com's $99 pottage special



As a kid, I read everything- labels, cereal box ingredient lists, the classifieds in The Raeford News-Journal.

Even before I got in on the ground floor of the internets as a lawyer, I read contracts. All the way through. When I bought a car, when I did real estate transactions, I drove salesmen and closers to distraction.

In the mid-1990s, I drafted a terms of service agreement for an early online art gallery. It was fascinating work, trying to think of how to structure workable online sales terms and remedies when such an option barely registered in the public consciousness.

When I was done with a lease offered to a foreign bank seeking office space in Seattle, the landlord said he'd never been beat up like that over his never-read lease's terms.

Two later cases highlighted the importance of careful drafting and attentive reading for me.

A client in his 80s brought me a summons from his ex-wife, who left him to take up with a woman in the early 1960s. He signed a consent to divorce unread, to show his contempt. He paid support until their child graduated college, then stopped. The agreement provided for support only to end with her death or remarriage, but my client read loathing in as a third escape clause.

The ex-wife sued for thirty years' back support with interest. He had to pay up. "She's not dead, and she is legally barred from marrying again," I had to tell him. "If you'd paid more attention- and, maybe, supported marriage equality- you'd be off the hook."

Then a media company executive with a morals clause in his employment contract sent me screen shots of some candid photos he'd sold to a magazine- long out of print and forgotten- that had just turned up on that new Internet thingy.

He had scanned the release back in the day; all the reprint rights were his. He just didn't think through its limitations, among which was another impossibility at the time it was signed: that still photos could be broadcast to the world as internet porn. His reservation of rights didn't include media that didn't exist yet.

"Go talk to the board," I suggested. "You aren't the first. They may empathize more keenly than you can imagine."

So I've had a good giggle the last year or so as Ancestry.com has flooded the airwaves with heartwarming tales of Americans who mailed off a Q-tip of spit to a lab and got back a report saying 21.45% of their DNA matches people who lived on the steppes of central Asia.

From an article at Medium, here's why:
...Specifically, by submitting DNA to AncestryDNA, you agree to “grant AncestryDNA and the Ancestry Group Companies a perpetual, royalty-free, world-wide, transferable license to use your DNA, and any DNA you submit for any person from whom you obtained legal authorization as described in this Agreement, and to use, host, sublicense and distribute the resulting analysis to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered.” 
...Buried in the “Informed Consent” section, which is incorporated into the Terms of Service, Ancestry.com warns customers, “it is possible that information about you or a genetic relative could be revealed, such as that you or a relative are carriers of a particular disease. That information could be used by insurers to deny you insurance coverage, by law enforcement agencies to identify you or your relatives, and in some places, the data could be used by employers to deny employment.”
So for some vague stats and an excuse to trade lederhosen for a kilt, you have traded away your privacy rights. And you don't even have to do anything! Some halfwit relative can drag you- via your family's common gene pool- into the ever-sweeping Roomba of commercial data miners and government snoops.

In 1894, Mark Twain published a novel called Pudd'nhead Wilson. It was about a small town lawyer, David Wilson, labeled an eccentric over an offhand remark and for cultivating damn-fool hobbies like asking his friends to run their fingers through their hair and press them to rectangular glass slides, which he labeled and kept in boxes for study. His practice never thrived, even though everyone knows a town too small to support one lawyer can always support two.

Decades later, the trial of a man accused of murder was upended by Puddn'head's slides.

The accused, a slave who could pass for white, was shown by Wilson's fingerprint analysis to be both innocent and in fact white, while the scion of the local gentry was proved both black and a murderer, his mother having made a switch of crib occupants in her master's home years before.

Their places reversed, the new heir found himself solitary and miserable, unable to fit into white society and rejected by his former friends; the former cock of the walk was impoverished, cast out of society, and sold down the river to partially satisfy the estate's creditors.

And so we see Twain's novel reenacted in federal court today, thanks to Ancestry.com, "the impetus of a federal civil rights lawsuit filed by Sergeant Cleon Brown, a white police officer in Hastings, Michigan against his employer, the Hastings Police Department, and several city employees. Curious about his own family history, Brown purchased an AncestryDNA genetic test and analysis report."
The results surprised him — Ancestry.com said his DNA was 18 percent sub-Saharan African. Brown “proudly told his colleagues at the police department” about his African ancestry. 
But not long after that, “his elation turned into misery.” According to Sergeant Brown’s complaint, his colleagues at the police department, “started whispering ‘Black Lives Matter’ while pumping their fists as they walked” past Brown. 
The complaint also alleges that the former mayor of Hastings participated in the racist teasing, by telling Brown a joke containing racist slurs. “I just never thought it would be in Hastings, saying, like, racist comments to me,” Brown said to the New York Times. In his lawsuit, Brown, a military veteran who has worked in law enforcement for 20 years, is seeking $500,000 in damages. 
Hope y'all like lentils.

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