BHL Bogen

BHL Bogen
BridgehouseLaw LLP - Your Business Law Firm

Thursday, July 26, 2018

Property Rights of Biometric Data and the Arrest of the Golden State Killer

Property Rights of Biometric Data and the Arrest of the Golden State Killer

            Don’t use DNA testing services without reading the Terms of Services or Privacy Policy. According to these contracts, you still own your DNA but so do these DNA testing services such as AncestryDNA, a service of Ancestry.com. According to Ancestry.com’s privacy policies the company takes royalty-free ownership of your DNA forever, whereas your ownership of your DNA is limited in years. Technically, Ancestry.com will own your DNA even after you’re dead. AncestryDNA owns the “World’s Largest Consumer DNA Database” which contains the DNA of more than 3 million people, although Ancestry.com claims that over 10 million people have used the service. For “only $99 + shipping and tax” the service promises to “uncover your ethnic mix, discover distant relatives, and find news details about your unique family history with a simple DNA test.” Specifically, by submitting your DNA to AncestryDNA, you agree to grant the company almost unlimited rights to use and distribute your DNA for any research or commercial purpose it decides and doesn’t have to pay royalties to you or your heirs. If a customer withdraws their consent, Ancestry.com will take 30 days to cease using their data for research. Even then withdrawing your consent, “will not result in the destruction of your DNA Sample or deletion of your Data from AncestryDNA products and services,” unless otherwise directed.
            So what does this have to do with the arrest of retired police officer Joseph James DeAngelo Jr.? The short answer is DNA. In April 2018, Sacramento law enforcement arrested DeAngelo suspected of being the “Golden State Killer” who was connected with as many as 50 rapes and 12 murders in California between 1974 and 1986. The authorities confirmed that they had used DNA profiles from ancestry websites to help them track down the killer. Lead investigator Paul Holes said his team used the website GEDmatch, which creates genetic profiles based on voluntarily shared and publicly available genetic information. Using family trees generated through the public profiles, investigators were able to pinpoint DeAngelo as a plausible suspect.
            This highlights the thorny issue that DNA information collected by these DNA testing services may be used against you or a genetic relative by law enforcement agencies. Even if you’ve never used Ancestry.com, but one of your genetic relatives has, the company may already own identifiable portions of your DNA. The Ancestry.com Terms of Service warns that genetic information in its possession can be used by state or federal law enforcement agencies to “identify you or your relatives.” Also at issue are concerns of privacy, informed consent and the long-term ramifications of having a DNA profile in law enforcement databases. In response to the news that law enforcement used GEDmatch to find DeAngelo, the website released a statement cautioning users to be aware that when they consent to release their DNA to build profiles, they can be used for this kind of dragnet. A version of this statement provided to the New York Times added, “If you are concerned about non-genealogical uses of you DNA, you should not upload your DNA to the database and/or you should remove DNA that has already been uploaded.



Tuesday, July 17, 2018

Recent Legal Developments for Non-Compete Agreements

Recent Legal Developments for Non-Compete Agreements


            As you probably know, the enforceability of non-compete agreements has, in general, experienced considerable restriction over the last few years. State and federal courts have become increasingly unwilling to hold employees to non-compete agreements that lack specificity and reasonable limitation in scope. In recent months, several developments relating to the enforceability of non-compete agreements have further limited or continued to limit the scope of such agreements.

            First, the “janitor rule” continues to gain acceptance in non-compete contexts and was specifically referenced in a recent federal district court case in Illinois. The “janitor rule” provides that if a non-compete agreement would prevent an employee from being a janitor for a competitor, the agreement is likely overly broad and unenforceable. The takeaway for employers is to draft non-compete agreements in a manner that addresses specific and legitimate business interests. Simply barring any employment with a competitor risks a court holding the non-compete agreement as unenforceable.

            Second, and more broadly, individual states continue to restrict the scope of non-compete agreements. Specific to the Carolinas, last June, the North Carolina Business Court, in American Air Filter Company, Inc. v. Price, 2017 NCBC 54, held a non-compete agreement as unenforceable where the employer did not give separate consideration for each contract renewal period. Because each renewal period was not supported by separate and new consideration, the employee’s non-compete agreement was unenforceable. While the case applied Kentucky law to the employment contract at issue, North Carolina and Kentucky share the same legal requirement that non-compete agreements executed after employment begins require new consideration. Thus, this case presents strongly persuasive precedent for future North Carolina courts in cases where non-compete agreements are baked into more general employment contracts subject to renewal periods.
            Further, South Carolina also requires new consideration for non-compete agreements executed after employment begins. As such, American Air Filter Company, Inc. v. Price also provides potentially persuasive authority for similar application to South Carolina employment and non-compete agreements.

            Thus, if your business uses non-compete agreements, be vigilant as to the changing legal landscape of non-competes. The last thing any business wants is to seek enforcement of a non-compete with a former key employee and then learn that agreement is unenforceable.


Saturday, July 07, 2018

An alle Eltern und Erziehungsberechtigte, deren Kinder in Deutschland zur Schule gehen:

An alle Eltern und Erziehungsberechtigte, deren Kinder in Deutschland zur Schule gehen:

Da die Sommerferien nun (je nach Bundesland) immer näher rücken, möchten wir Sie davor warnen Ihre Kinder unerlaubt früher aus der Schule zu befreien, um längere Ferien zu genießen oder bessere Flugpreise zu erwischen. Die Chancen, dass die Polizei am Flughafen nach Ihnen Ausschau hält, ist relative hoch. Vor allem wenn man bedenkt, dass erst Ende Mai dieses Jahres in Bayern gegen mindestens 20 Eltern Anzeige erstattet wurde, weil sie ihre Kinder entgegengesetzt der Schulpflicht unerlaubt von der Schule fernhielten, um früher die Pfingstferien genießen zu können.


Um solch eine Situation vor den Sommerferien zu vermeiden, raten wir Ihnen zu den gegebenen Ferienzeiten zu reisen. Wir wünschen Ihnen schöne Sommerferien!