Tuesday, October 5, 2010
Elizabeth E. Joh (U.C. Davis School of Law) has posted DNA Theft: Recognizing the Crime of Nonconsensual Genetic Collection and Testing (Boston University Law Review, Vol. 91, 2011) on SSRN. Here is the abstract:
The fact that you leave genetic information behind on the discarded tissues, used coffee cups, and smoked cigarettes everywhere you go is generally of little consequence. The trouble arises when third parties are interested in retrieving this detritus of everyday life for the genetic information you’ve left behind. These third parties may be the police, and the regulation over their ability to collect this evidence is unclear.
And the police aren't the only people who are curious about your genetic information. Whether the victims are celebrities, private persons with secrets to keep, or just the targets of nosy third parties with bad intentions, if someone wants to collect and analyze another person's DNA without consent, they can do so. Committing DNA theft is as easy a sending in a used tissue to a company contacted over the internet, and waiting for an analysis by email. A quick on-line search reveals many companies that offer "secret" or "discreet" DNA testing. The rapid proliferation of companies offering direct-to-consumer genetic testing at ever lower prices means that both the technology and motives exist for DNA theft.
Yet in nearly every American jurisdiction, DNA theft is not a crime. Rather, the nonconsensual collection and analysis of another person's DNA is virtually unconstrained by law. This article explains how DNA theft poses a serious threat to genetic privacy and why it merits consideration as a distinct criminal offense.