Cheap DNA Testing Is Giving Some Insurers Even More Ways To Deny Coverage
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Joel Winston -- current consumer protection lawyer and former New Jersey attorney general -- is offering up the periodic reminder that terms of service are rarely written with the user's best interests in mind. Winston highlights the demands Ancestry.com makes in exchange for using its paid service. Two-thirds of those highlighted are standard operating procedure for far too many services. [h/t War on Privacy]The first is the perpetual license users grant Ancestry.com for exploitation of their DNA data. Again, this sort of thing can be found at many services heavily-reliant on users' contributions. And many of those not only want your money, but the opportunity to sell off data as well.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.” It's not particularly heinous. (Yes, I'm damning it with faint damnation.) But it's no better than countless other services, and this one deals with DNA, which is arguably more personal than, say, tweets... or coarse demographic info. It would be nice to know this up front. Ancestry.com can claim it does inform users of this, but it's part of a lengthy Terms and Conditions which contains enough dense language and boilerplate legalese to deter all but the most detail-oriented from reading it all the way through.Opting out is, of course, much more difficult. As Winston notes, several hoops must be jumped through to pull your DNA out of this broad "agreement." It also takes the company 30 days to handle users' requests, and it doesn't affect any studies, etc. the company has already supplied with your DNA data. It also may involve phone calls, which is super fun in the age of digital communications that leave a better, more easily-verifiable paper trail.On top of that, there's the arbitration clause, which will ensure users have as little leverage as possible should they be unhappy with Ancestry's services or handling of DNA data. This, too, is sadly a part of too many terms of service agreements. Arbitration forces users to play on the company's playground, rather than the more neutral field created by filing a civil complaint. This sucks, but once again, it's nothing that's unique to Ancestry.com.What's most disturbing about Ancestry's growing DNA collection is something Glyn Moody highlighted here a couple of years ago.According to an article on Fusion.net, Ancestry now has over 800,000 samples, while 23andMe has a million customers (Ancestry says that a more up-to-date figure is 1.2 million members in its database). Those are significant holdings, and it's only natural that the police would try to use them to solve crimes; both companies confirm that they will turn over information from their databases to law enforcement agencies if served with a suitable court order. Customers' DNA info -- processed by Ancestry.com -- becomes nothing more than a third-party record. The company says it only complies with court orders, but there's a lack of specificity in that statement. A court order may be nothing more than a subpoena, rather than a search warrant. Third-party records have a lowered expectation of privacy, which means warrants aren't a necessity.What makes this even more problematic is the company's willingness to hand over "familial" DNA -- in other words, DNA that isn't necessarily yours but comes from the same gene pool. Mixing this together raises the chance of false positives, which is never a good thing when someone's freedom is on the line.And it's not just limited to police snooping. Ancestry is making this information available to private parties (see the perpetual license above), which could have adverse effects on people who've never used the service.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.”This is a massive red flag. The data “you or a genetic relative” give to AncestryDNA could be used against “you or a genetic relative” by employers, insurers, and law enforcement. The damage being done isn't theoretical. Glyn Moody's piece dealt with a man who became a suspect in a 20-year-old murder thanks to his father's DNA data (obtained by law enforcement from privately-held genetic databases). Winston's piece also covers the law enforcement aspects of Ancestry's license/sharing. But as the terms warn, insurers and employers could decide they want nothing to do with you, thanks to your familial DNA.For example, a young woman named Theresa Morelli applied for individual disability insurance, consented to release of her medical records through the Medical Information Bureau (a credit reporting agency for medical history), and was approved for coverage. One month later, Ms. Morelli’s coverage was cancelled and premiums refunded when the insurer learned her father had Huntington’s disease, a genetic illness.Startlingly, the Medical Information Bureau (MIB) used Morelli’s broad consent to query her father’s physician, a doctor with whom she had no prior patient relationship. More importantly, the applicant herself wasn’t diagnosed with Huntington’s carrier status, but she suffered exclusion on the basis of a genetic predisposition in her family. Health care insurers are forbidden by federal law from using DNA data to deny coverage, but as Winston points out, nothing prohibits other insurers (life, long-term disability, etc.) from using this to decline coverage. And there's nothing at all in the law preventing employers from using DNA data to screen out potential employees who might be a net loss on company-provided insurance plans.The upside is a $99 DNA test, something that used to be prohibitively expensive. The downside… well, it's pretty much everything else. In exchange for cheap testing, customers have to give up nearly everything. They can't easily stop the sharing of data, have limited ability to challenge information demands by law enforcement, and zero chance to fully control the use of data you've handed over to Ancestry.com. Information about how your DNA data is being used isn't easily obtained and anything insurers and employers are doing with this information is almost completely opaque. And, if you don't like it -- or feel Ancestry has managed to overstep the broad powers granted to it by its users -- you're stuck with arbitration as your only recourse.
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Brewery Sues Competitor Over Schooner Logos And Use Of The Word 'Head'
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Another day, another sigh-inducing trademark dispute in the craft beer industry. As we've discussed for some time now, the beer industry has a massive problem on its hands in the form of a deluge of trademark disputes between competitors. This has largely been the result of a huge uptick in craft brewers opening new businesses saddled alongside the tradition of creatively naming different beers and the limitations of the English language. Sometimes, however, you get a good old fashioned trademark dispute where one side is simply claiming similarities so tenuous as to be laughable.Introducing Shipyard Brewing Co., which is suing Logboat Brewing Company claiming that because the latter both uses an image of a schooner on its label for its Shiphead beer brand and because the name of the beer includes the word "head" at all, that its a trademark violation. Let's deal with each in order, mostly because simply putting the beer labels side by side should allow us to take the schooner portion of the claim off the list of things we'll take seriously quite easily.
Do both labels use the image of a schooner? Yup! Are those uses, or the labels themselves, even remotely similar? Hell no! Shipyard's label is a picture of a schooner on the water, whereas Logboat's label is dominated by an image of a woman with a schooner for a head. You know, "shiphead." The beer labels themselves aren't remotely similar so as to rise to the level of trademark infringement.Which Shipyard likely realizes, which is why they're lacing this trademark suit with the following claims: its the combination of the label and Logboat's use of the word "head" and the name it gave its outdoor seating area near the brewery that creates the customer confusion.Shipyard further owns and has used other trademarks that contain the term HEAD as a suffix in relation to its beers, including, but not limited to, PUMPKINHEAD, MELONHEAD, and APPLEHEAD. Shipyard’s family of SHIPYARD, SHIP, and HEAD marks (collectively “Shipyard’s Trademarks”) all were in use and/or registered prior to Logboat’s earliest priority date of February 20, 2014. The suit goes on to note that Logboat refers to its outdoor eating area as "the shipyard", which, yeah, the brewery has a boating theme. But with all of the examples of "ship" and "head" related trademarks owned by Shipyard, what the company chiefly demonstrates is that it does not have a trademark registered for "shiphead." The owner of that mark is Logboat, actually, which was registered in 2014 at which time no opposition was raised against it by Shipyard or anyone else. Logboat took to social media to explain:“Logboat’s Shiphead Ginger Wheat trademark was registered by the U.S. Patent and Trademark Office following examination by a trademark examiner,” the statement said, “and successfully passed though the public opposition phase. Logboat’s mark was never challenged during the registration process as being likely to cause confusion with the trademark of any other party.” What Shiphead is trying to do is string two or three tenuous trademark issues together and weave it into a valid trademark lawsuit. It's very unlikely to work, however, given how dissimilar the logos and marks are.
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