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DNA theft: is the genetic paparazzi right around the corner ?

June 5, 2022 · Comment icon 14 comments

Could our genetic material be stolen ? Image Credit: CC BY-SA 4.0 Nogas1974
As technology improves, we could soon face the prospect of the theft and analysis of our DNA.
Law experts Liza Vertinsky from the University of Maryland and Yaniv Heled from Georgia State University take a look at what could be a major problem in the not-too-distant future.

Every so often stories of genetic theft, or extreme precautions taken to avoid it, make headline news. So it was with a picture of French President Emmanuel Macron and Russian President Vladimir Putin sitting at opposite ends of a very long table after Macron declined to take a Russian PCR COVID-19 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 similarly refused to take a Russian PCR COVID-19 test.

While these concerns may seem relatively new, pop star celebrity Madonna has been raising alarm bells about the potential for nonconsensual, surreptitious collection and testing of DNA for over a decade. She has hired cleaning crews to sterilize her dressing rooms after concerts and requires her own new toilet seats at each stop of her tours.

At first, Madonna was ridiculed for having DNA 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 who study how emerging technologies like genetic sequencing are regulated. We believe that growing public interest in genetics has increased the likelihood that genetic paparazzi with DNA collection kits may soon become as ubiquitous as ones with cameras. While courts have for the most part managed to evade dealing with the complexities of surreptitious DNA collection and testing of public figures, they won't be able to avoid dealing with it for much longer. And when they do, they are going to run squarely into the limitations of existing legal frameworks when it comes to genetics.

Genetic information troves

You leave your DNA behind you everywhere you go. The strands of hair, fingernails, dead skin and saliva you shed as you move through your day are all collectible trails of DNA.

Genetic analysis can reveal not only personal information, such as existing health conditions or risk for developing certain diseases, but also core aspects of a person's identity, such as their ancestry and the potential traits of their future children. In addition, as genetic technologies continue to evolve, fears about using surreptitiously collected genetic material for reproductive purposes via in vitro gametogenesis become more than just paranoia.

Ultimately, taking an individaul's genetic material and information without their consent is an intrusion into a legal domain 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 disputes involving genetic theft from public figures inevitably reach the courtroom, judges will need to confront fundamental questions about how genetics relates to personhood and identity, property, health and disease, intellectual property and reproductive rights. Such questions have already been raised in cases involving the use of genetics in law enforcement, the patentability of DNA and ownership of discarded genetic materials.
In each of these cases, courts focused on only one dimension of genetics, such as privacy rights or the value of genetic information for biomedical research. But this limited approach disregards other aspects, such as the privacy of family members with shared genetics, or property and identity interests someone may have in genetic material discarded as part of a medical procedure.

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

Modern U.S. 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 the freedom of speech and press, as well as Fourth Amendment prohibitions on unreasonable searches and seizure. Public figures face further restrictions on their privacy rights because they are objects of legitimate public interest. On the other hand, they also have publicity rights that control the commercial value of their unique personally identifying traits.

People whose genetic material has been taken without their consent may also raise a claim of conversion that their property has been interfered with and lost. Courts in Florida are currently considering a conversion claim in a private dispute where the former CEO of Marvel Entertainment and his wife accused a millionaire businessman of stealing their DNA to prove that 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 an object that someone possesses.

What the future may hold

Under existing laws and the current state of genetic technology, most people don't need to worry about surreptitious collection and use of genetic material in the way that public figures might. But genetic paparazzi cases will likely play an important role in determining what rights everyone else will or will not have.

The U.S. Supreme Court is very unlikely to 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 purview of state legislatures and courts. But none of the states have adequately grappled with 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 disclosure of genetic information, but not collection.

For better or for worse, how the courts rule in genetic paparazzi cases will shape how society thinks about genetic privacy and about individual rights regarding genetics more broadly.

Liza Vertinsky, Professor of Law, University of Maryland and Yaniv Heled, Associate Professor of Law, Georgia State University

This article is republished from The Conversation under a Creative Commons license.

Read the original article. The Conversation

Source: The Conversation | Comments (14)

Recent comments on this story
Comment icon #5 Posted by pallidin 1 year ago
I have a problem with that.
Comment icon #6 Posted by Wreck7 1 year ago
It makes me wonder how long until some three letter law enforcement agency plants harvested DNA at some sort of crime scene in order to frame someone. They're like that.
Comment icon #7 Posted by pallidin 1 year ago
Why would they frame someone?
Comment icon #8 Posted by Socio 1 year ago
I can see the use of stolen DNA† for†reproductive purposes via in vitro gametogenesis anywhere from zealot†movie star fans wanting to have their favorite actors baby to dictators wanting to produce 100's or 1000's of test tub babies from DNA stolen from geniuses†or top athletes, pilots, mix martial artists etc... from around the globe for military purposes.†††
Comment icon #9 Posted by quiXilver 1 year ago
Do you believe him? † Eh... It's the internet after all, it must be true.
Comment icon #10 Posted by Hyperionxvii 1 year ago
Oh stop, our governments and their authorities are totally benevolent and trustworthy at all times, unlike people... oh yeah, they're people, easy to forget that because they are so saintly.†
Comment icon #11 Posted by pallidin 1 year ago
Yeah, I don't believe him at all.
Comment icon #12 Posted by Splendor Solis 1 year ago
Sure, we leave our DNA all over the place, making it easy for someone to steal it, if they want to, but what's even worse? A lot of people are willingly sending their DNA to online ancestry companies!! I mean, why would anyone send their DNA out there? You're willingly giving someone your DNA. Before we get excited about someone snooping around looking for our fingernail clippings, let's try to put a stop to online ancestry. The United States won't even allow members of its own military to use online ancestry, so why would anyone else do it?
Comment icon #13 Posted by llegendary 12 months ago
Oh, this for sure will be illegal. Can't have people finding out who the true oligarchs are and who they are related to. I could see them making it punishable by death.
Comment icon #14 Posted by llegendary 12 months ago
You've got to be kidding right?† Two answers are completely obvious.† 1.† To hide their actions.† 2.† To incriminate their competition/opposition.† It's a tool in which they could bend anybody to their will.

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