Bill Limits the Use of DNA in Criminal Databases Without Consent

October 15, 2021 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

On October 1, legislation went into effect in Florida to create criminal penalties for accessing another person’s DNA without their consent. Ultimately, the law provides protective measures to ensure that people’s genetic information is protected.

SB 1140 & HB 833

Specifically, SB 1140, also called the Protecting DNA Privacy Act, was a measure backed by Senator Ray Rodrigues. The matching House version,  HB 833, was carried by Representative Josie Tomkow. This bill amends Section 760.40 of the Florida Statutes to edit the definitions of the term  “DNA analysis” and provide additional definitions for the terms ‘DNA sample’ ‘exclusive property’ and ‘express consent’. Furthermore, the bill creates Section 817.5655 of the Florida Statutes to codify the Protecting DNA Privacy Act. This statute states the following:

1. It is unlawful for a person to willfully, and without express consent, collect or retain another person’s DNA sample with the intent to perform DNA analysis. Anyone who violates this commits a first-degree misdemeanor, punishable by up to one year of imprisonment and up to a $1,000 fine.
2. It is unlawful for a person to willfully, and without express consent, submit another person’s DNA sample for DNA analysis or conduct or procure the conducting of another person’s DNA analysis. Anyone who violates this commits a third-degree felony, punishable by up to five years imprisonment and a $5,000 fine.
3. It is unlawful for a person to willfully, and without express consent, disclose another person’s DNA analysis results to a third party. Anyone who violates this commits a third-degree felony, punishable by up to five years of imprisonment and a $5,000 fine. However, a person who discloses another person’s DNA analysis results that were previously or voluntarily disclosed by the person whose DNA was analyzed is not in violation of this statute.
4. It is unlawful for a person to willfully, and without express consent, sell or otherwise transfer another person’s DNA sample or the results of another person’s DNA analysis to a third party, regardless of whether the DNA sample was originally collected, retained, or analyzed with express consent. Anyone who violates this commits a second-degree felony, punishable by up to fifteen years of imprisonment and a $10,000 fine.

It’s important to note that each instance of collection, retention, submission, analysis, or disclosure is a separate violation. In addition, this statute does not apply to a DNA sample, DNA analysis, or results of a DNA analysis used for a criminal investigation or prosecution, to comply with a lawful court order, to comply with federal law, or for medical diagnosis or similar assessments.

An Interesting Path

This privacy issue came to light when Florida “became the first state to prevent life, disability, and long term care insurance providers from using DNA analyses for making coverage decisions without their consent.” At the time of this, state and federal law already protected consumers from being forced to hand over their DNA test results to health insurance providers. Insurers argued, and continue to argue, that DNA test results could be “used to lower insurance premiums across the board.” However, this would “punish genetic losers who could see a premium hike” as a result.

While working on the proposal, Rodrigues worked with companies like Ancestry, the largest consumer DNA network, to describe the DNA sampling process to the Senate Rules Committee. Ancestry’s government affairs director Ritchie Engelhardt spoke on behalf of the Coalition for Genetic Data Protection, which is comprised of Ancestry and 23andMe, another consumer DNA testing company. He stated that at-home DNA testing companies require that a person submit a large amount of spit to get results, so people are not sending in samples without consent. Engelhardt stated, “it’s a substantial amount of spit that you have to provide, and it’s not something that you could surreptitiously collect from someone without their knowledge.”

However, considering the growing popularity of at-home DNA tests, lawmakers felt additional privacy protections needed to be implemented.

This article was written by Sarah Kamide

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