by David Gurney, JD\/PhD – Director, 69色情视频 IGG Center<\/p>\n
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: \u201cIn exchange for Access to the Services, you agree: . . . Not to use the Services in connection with any judicial proceeding.\u201d<\/span><\/p>\n If this provision includes IGG, then it is certainly cause for concern.\u00a0<\/span><\/p>\n Ancestry\u2019s services sweep wide.\u00a0<\/span><\/p>\n They include not only tree building but access to public records held in Ancestry\u2019s databases, which encompass sites like Newspapers.com, Find a Grave, and other essential repositories of public records that Ancestry owns.\u00a0<\/span><\/p>\n If Ancestry truly banned IGG practitioners from accessing these services\u2014and if IGG practitioners took Ancestry\u2019s suggestion that \u201c[if] you do not agree to these Terms, you should not use our Services\u201d\u00b9<\/span>\u2014IGG would become much more difficult, leaving violent criminals on the streets and families of victims and missing relatives without closure.\u00a0<\/span><\/p>\n 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.\u00a0<\/span><\/p>\n The clearest threat in the new language is to forensic genealogists who practice in heir searches and oil and mineral rights.\u00a0<\/span><\/p>\n Before I explain why IGG can almost never be considered part of a judicial proceeding, I must address a change in Ancestry\u2019s language w\/r\/t judicial proceedings.\u00a0<\/span><\/p>\n In both previous and current versions of the TaC, Ancestry forbids the use of any \u201cinformation obtained from the DNA Services . . . in any judicial proceeding[.]\u201d\u00b2<\/span> The new terms\u2014in addition to applying the ban to all of Ancestry\u2019s services, not just its DNA services\u2014use a different phrase: not \u201cin any judicial proceeding\u201d but \u201cin connection with any judicial proceeding.\u201d\u00a0<\/span><\/p>\n The question is whether the latter phrase is broader than the former. Looking at the phrase\u2019s ordinary meaning shows that it is not.\u00a0<\/span><\/p>\n But first, <\/span>advocatus diaboli<\/span><\/i>.\u00a0<\/span><\/p>\n You might argue that the phrase \u201cin connection with\u201d sweeps as broadly as Ancestry\u2019s 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\u2019t IGG being used \u201cin connection with\u201d a future judicial proceeding here? And, therefore, don\u2019t Ancestry\u2019s new TaC forbid the use of its services for IGG?<\/span><\/p>\n Courts looking to interpret a phrase will first look to see if the document containing the phrase provides a definition (Ancestry\u2019s TaC do not), and barring that, will turn to the humble dictionary.\u00a0<\/span><\/p>\n Here, various dictionaries provide synonyms such as \u201cabout\u201d, \u201cconcerning\u201d, \u201cregarding\u201d, and so on, and Webster\u2019s defines the phrase as \u201cin relation to (something).\u201d<\/span><\/p>\n Do these interpretations vindicate the view that Ancestry\u2019s new TaC forbid the use of its services for IGG?<\/span><\/p>\n Well, no, at least not in the ordinary sense of the phrase \u201cin connection with\u201d. 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 \u201cin connection with\u201d in this context becomes clear.<\/span><\/p>\n Consider an analogy:\u00a0<\/span><\/p>\n 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: \u201cOur services may not be used in connection with a public-school graduation ceremony.\u201d\u00a0<\/span><\/p>\n Now, imagine that a public high school adopts the computer company\u2019s 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.\u00a0<\/span><\/p>\n Nevertheless, at a school-board meeting, a parent takes the microphone and says that the school must stop using the computer company\u2019s 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\u2019s services by the school is \u201cin connection with a public-school graduation ceremony.\u201d\u00a0<\/span><\/p>\n This, I hope it is clear, is an unreasonable understanding of the phrase \u201cin connection with.\u201d It includes any activities that might lead to a particular outcome\u2014in this case, a graduation ceremony. Heck, a student\u2019s use of the computer company\u2019s services for homework would be banned under this interpretation.\u00a0<\/span><\/p>\n The parent\u2019s 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\u2019s 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.\u00a0<\/span><\/p>\n Rather, the computer company\u2019s intention\u2014based on the most reasonable reading of its language\u2014was to ban the use of its services <\/span>as part of <\/span><\/i>a public school graduation ceremony, which includes the ceremony itself and likely any activities directly related to it, such as promotional materials.<\/span><\/p>\n Ditto with Ancestry\u2019s new TaC.\u00a0<\/span><\/p>\n The use of \u201cin connection with\u201d 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.\u00a0<\/span><\/p>\n So, the question becomes: is IGG part of a judicial proceeding?\u00a0<\/span><\/p>\n Again, the answer is no, in almost every context.\u00a0<\/span><\/p>\n Cornell Law School\u2019s <\/span>Legal Information Institute <\/span><\/i>defines a judicial proceeding as \u201cany 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].\u201d<\/span><\/p>\n 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<\/span><\/i>.\u00a0<\/span><\/p>\n 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.\u00a0<\/span><\/p>\n There are three contexts where IGG work <\/span>might<\/span><\/i> be considered as part of a judicial proceeding, but all are murky.\u00a0<\/span><\/p>\n The first context is an IGG practitioner working on a Maryland case. Maryland\u2019s 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 \u201cjudicial proceeding,\u201d and thus, the use of Ancestry\u2019s 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 <\/span>part of <\/span><\/i>a judicial proceeding here, as it is allowed to go forward only because a judge has signed off on it.<\/span><\/p>\n The second context is again within the confines of Maryland\u2019s 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\u2019s services? And, if so, is the one using those services bound by Ancestry\u2019s TaC? These questions are not easy to answer. In arriving at the identity of the reference tester, Ancestry\u2019s services may have been used. Thus, providing the name of the reference tester to the court is arguably a use of Ancestry\u2019s services as part of a judicial proceeding. Yet, the prosecutor is not bound by Ancestry\u2019s TaC (unless they conducted the IGG themselves), and it is the prosecutor who is using Ancestry\u2019s services here as part of a judicial proceeding. It is not clear that the IGG practitioner\u2019s 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.<\/span><\/p>\n 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\u2014and the use of Ancestry\u2019s services\u2014will 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\u2019s 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.\u00a0<\/span><\/p>\n Ancestry has chosen to keep its TaC vague as they apply to IGG practitioners\u2019 use of Ancestry\u2019s services.\u00a0<\/span><\/p>\n They did not have to.\u00a0<\/span><\/p>\n Ancestry\u2019s previous and current Privacy Statement contains the following sentence: \u201cWe do not allow law enforcement to use the Services to investigate crimes or to identify human remains.\u201d 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 <\/span>Ancestry <\/span><\/i>will act, it is not about how users of Ancestry should act. The statement about IGG occurs as part of a description of how <\/span>Ancestry <\/span><\/i>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.\u00a0<\/span><\/p>\n Ancestry could have chosen to import that phrase\u2014\u201cWe do not allow law enforcement to use the Services to investigate crimes or to identify human remains\u201d\u2014into its new TaC for users of Ancestry\u2019s services.\u00a0<\/span><\/p>\n Instead, Ancestry chose to remain vague.\u00a0<\/span><\/p>\n Why, is anyone\u2019s guess.\u00a0<\/span><\/p>\n There is some genealogical work that clearly takes place in the context of a judicial proceeding.\u00a0<\/span><\/p>\n Forensic genealogists who work on locating heirs to estates, real estate, and\u00a0 mineral and oil rights cases are frequently hired as part of an ongoing judicial proceeding\u2014sometimes even by the court itself.\u00a0<\/span><\/p>\n I would argue that it is these forensic genealogists who should be most concerned with Ancestry\u2019s new TaC.\u00a0<\/span><\/p>\n Is unclear.\u00a0<\/span><\/p>\n 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.\u00a0<\/span><\/p>\n I hope that business will continue as usual and that Ancestry will not clarify its terms to explicitly forbid IGG\u2014or use its existing terms to ban users.<\/span><\/p>\n Either step would be, in my view, an act of cruelty.\u00a0<\/span><\/p>\n IGG practitioners use Ancestry services primarily for access to public records. Many\u2014but not all\u2014of 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.\u00a0<\/span><\/p>\n Ancestry cannot stop IGG, but they can, if they choose, slow it down.<\/span><\/p>\n If that is Ancestry\u2019s goal, only time will tell.<\/p>\n __<\/span><\/p>\n \u00b9The use of \u201cshould\u201d here is unusual. Typically, when a company wants to block certain activities on its sites, it will do so using terms like \u201cmust\u201d and \u201cshall.\u201d \u201cShould\u201d is a vague term. As this blog post will make clear, vagueness is Ancestry\u2019s hallmark, so it is no surprise that they retain it here. \u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":" by David Gurney, JD\/PhD – Director, 69色情视频 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: \u201cIn exchange for Access to the Services, you agree: . . […]<\/p>\n","protected":false},"author":999,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[6,7],"class_list":["post-960","post","type-post","status-publish","format-standard","hentry","category-terms-of-service","tag-ancestry","tag-tos"],"yoast_head":"\n\u00a0\u201cIt Depends on What the Meaning of the word \u2018is\u2019 is\u201d<\/b><\/h4>\n
What is a \u201cJudicial Proceeding\u201d Anyway?\u00a0<\/b><\/h4>\n
Words, Words, Words<\/b><\/h4>\n
Forensic Genealogy<\/b><\/h4>\n
What Happens Next for IGG<\/b><\/h4>\n
\n\u00b2This provision caused little concern for IGG practitioners since they would be unlikely to be users of Ancestry\u2019s DNA services themselves and so would not be bound by the provision.<\/p>\n