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General

Genetic privacy concerns also arise in the context of criminal law because the government can sometimes overcome a criminal suspects' genetic privacy interests and obtain their DNA sample. Due to the shared nature of genetic information between family members, this raises privacy concerns of relatives as well.

Issues

For criminal justice and privacy advocates, the use of genetic information in identifying suspects for criminal investigations proves worrisome under the Fourth Amendment—especially when an indirect genetic link connects an individual to crime scene evidence. Since 2018, law enforcement officials have been harnessing the power of genetic data to revisit cold cases with DNA evidence. Suspects discovered through this process are not directly identified by the input of their DNA into established criminal databases, like CODIS. Instead, suspects are identified as the result of familial genetic sleuthing by law enforcement, submitting crime scene DNA evidence to genetic database services that link users whose DNA similarity indicates a family connection. Officers can then track the newly identified suspect in person, waiting to collect discarded trash that might carry DNA in order to confirm the match.

Despite the privacy concerns of suspects and their relatives, this procedure is likely to survive Fourth Amendment scrutiny. Much like donors of biological samples in cases of genetic research, criminal suspects do not retain property rights in abandoned waste; they can no longer assert an expectation of privacy in the discarded DNA used to confirm law enforcement suspicions, thereby eliminating their Fourth Amendment protection in that DNA. Additionally, relatives’ expectations of privacy in their genetic information used to link evidence with suspects are likely irrelevant under current caselaw since Fourth Amendment protection is “personal” to criminal defendants.

Federal

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) also provides some genetic privacy protections. HIPAA defines health information to include genetic information, which places restrictions on who health providers can share the information with.

State Regulations

Three kinds of laws are frequently associated with genetic privacy: those relating to informed consent and property rights, those preventing insurance discrimination, and those prohibiting employment discrimination. According to the National Human Genome Research Institute, forty-one states have enacted genetic privacy laws as of January 2020. However, those privacy laws vary in the scope of protection offered; while some laws "apply broadly to any person" others apply "narrowly to certain entities such as insurers, employers, or researchers."

Arizona, for example, falls in the former category and offers broad protection. Currently, Arizona's genetic privacy statutes focus on the need for informed consent to create, store, or release genetic testing results, but a pending bill would amend the state genetic privacy law framework to grant exclusive property rights in genetic information derived from genetic testing to all persons tested. In expanding privacy rights by including property rights, the bill would grant persons who undergo genetic testing greater control over their genetic information. Arizona also prohibits insurance and employment discrimination on the basis of genetic testing results.

California similarly offers a broad range of protection for genetic privacy, but it stops short of granting individuals property rights in their genetic information. While currently enacted legislation focuses on prohibiting genetic discrimination in employment and insurance, a piece of pending legislation would extend genetic privacy rights to provide individuals with greater control over genetic information obtained through direct-to-consumer testing services like 23andMe.

On the other hand, Mississippi offers few genetic privacy protections beyond those required by the federal government. In the Mississippi Employment Fairness Act, the legislature recognized the applicability of the Genetic Information Nondiscrimination Act, which "prohibit[s] discrimination on the basis of genetic information with respect to health insurance and employment."