Is DNA theft by genetic “paparazzi” our next legal nightmare?

From time to time, stories of genetic theft or extreme precautions taken to avoid it make headlines. So was a photo of French President Emmanuel Macron and Russian President Vladimir Putin sitting at opposite ends of a very long table after Macron refused to take a Russian COVID-19 PCR test. Many speculated that Macron refused due to security concerns that the Russians would take and use his DNA for nefarious purposes. German Chancellor Olaf Scholz also refused to take a Russian COVID-19 PCR test.

While these concerns may seem relatively new, pop star Madonna has been sounding the alarm about the potential for non-consensual, surreptitious DNA collection and testing for more than a decade. She has hired cleaning crews to sterilize her dressing rooms after concerts and needs her own new toilet seats at every stage of her tours.

At first, Madonna was ridiculed for her DNA-related paranoia. But as more advanced, faster, and cheaper genetic technologies have reached the consumer realm, these concerns seem not only reasonable, but justified.

We are law professors studying how emerging technologies like genetic sequencing are regulated. We believe that the growing public interest in genetics has increased the likelihood that genetic paparazzi with DNA collection kits will soon become as ubiquitous as those with cameras.

While the courts have mostly managed to avoid dealing with the complexities of surreptitious DNA collection and testing of public figures, they won’t be able to avoid dealing with it any longer. And when they do, they will squarely come up against the limitations of existing legal frameworks for genetics.

Treasures of genetic information

You leave your DNA behind wherever you go. The strands of hair, fingernails, dead skin and saliva you lose throughout your day are all collectible traces of DNA.

Genetic analysis can reveal not only personal information, such as existing health problems or the risk of developing certain diseases, but also key aspects of a person’s identity, such as their ancestry and potential characteristics of his future children. Moreover, as genetic technologies continue to evolve, fears about the use of surreptitiously collected genetic material for breeding purposes via in vitro gametogenesis are becoming more than paranoia.

Ultimately, taking an individual’s genetic material and information without their consent is an intrusion into an area of ​​law that is still considered deeply personal. Despite this, there are few laws protecting the interests of individuals regarding their genetic material and information.

Existing legal frameworks

When litigation involving the genetic theft of public figures inevitably reaches the courtroom, judges will have to grapple with fundamental questions about how genetics relates to person and identity, property, health and disease, intellectual property and reproductive rights. Such issues have already been raised in cases involving the use of genetics in law enforcement, the patentability of DNA, and the ownership of discarded genetic material.

In each of these cases, the courts focused on a single dimension of genetics, such as the right to privacy or the value of genetic information for biomedical research. But this limited approach does not take into account other aspects, such as the privacy of family members sharing genes, or the ownership and identity interests that a person may have in the genetic material rejected in the framework. of a medical procedure.

In the case of genetic paparazzi, the courts are likely to try to fit complex questions about genetics into the legal framework of the right to privacy, because that is how they have approached other intrusions into the lives of public figures. public in the past.

Modern US privacy law is a complex web of state and federal regulations governing how information can be acquired, accessed, stored and used. The right to privacy is limited by First Amendment protections on freedom of speech and of the press, as well as Fourth Amendment prohibitions on unreasonable search and seizure. Public figures face additional restrictions on their privacy rights because they are objects of legitimate public interest. On the other hand, they also have publicity rights which control the commercial value of their unique personal identification traits.

People whose genetic material has been taken without their consent can also submit a request for conversion according to which their property has been altered and lost. Florida courts are currently considering a conversion request in a private dispute where the former CEO of Marvel Entertainment and his wife accused a millionaire businessman of stealing their DNA to prove they were slandering him through a hate mail campaign. This approach replaces the narrow legal framework of privacy with an even narrower framework of property, reducing genetics to something someone owns.

What the future may hold

Under existing laws and the current state of genetic technology, most people do not have to worry about the surreptitious collection and use of genetic material as public figures might. But paparazzi genetic cases will likely play a big role in determining what rights everyone will or will not have.

It is highly unlikely that the United States Supreme Court will recognize new rights, or even affirm previously recognized rights, that are not explicitly mentioned in the Constitution. Therefore, at least at the federal level, individual protections for genetic material and information are not likely to adapt to changing times.

This means that cases involving genetics are likely to fall within the jurisdiction of state legislatures and courts. But neither state has sufficiently tackled the complexities of genetic legal claims. Even in states with laws specifically designed to protect genetic privacy, regulations cover only a narrow range of genetic interests. Some laws, for example, may prohibit the disclosure of genetic information, but not its collection.

For better or worse, how courts decide genetic paparazzi cases will shape how society views genetic privacy and individual rights regarding genetics more broadly.

Liza Vertinsky is a professor of law at the University of Maryland.

Yaniv Heled is an associate professor of law at Georgia State University.

This article is republished from The conversation under Creative Commons license. You can find the original article here.

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