Over the past decade, scientific advances have allowed genetic testing to become accessible to consumers. Direct-to-consumer (DTC) DNA testing companies can analyze your DNA sample so you can learn about your family’s origins or whether you are genetically predisposed to a specific disease or disorder. Consumers can then send these analyzed files to third-party databases that aggregate genetic data for specific purposes, like helping law enforcement solve cold cases. Recently, the Department of Defense alerted servicemembers that DTC DNA tests were a national security threat. Simply put, when the national security apparatus finds a threat, it proactively seeks to neutralize the threat, as seen in the 1960s and 1970s when crushing domestic protestors and at the beginning of the twenty-first century during the “War on Terror.” This note explores whether genetic information stored with DTC DNA testing companies or third-party databases is in fact a national security threat. This note brings attention to what would occur if US intelligence operations began to seize the DNA data of Americans, highlighting how the federal judiciary is ill-equipped to adjudicate DNA data, the biological essence of each person. This note then seeks to assess whether constitutional protections for genetic data could be judicially crafted by adapting the Fourth Amendment expectation of privacy or extending the larger constitutional right to privacy to the realm of genetic data. In finding shortcomings to these prospects, a legislative solution is the only alternative. This note also assesses European privacy laws and state-based initiatives or viable alternatives to the present situation. Ultimately, a federal law should be crafted that protects consumer’s genetic privacy, balances a private right of action with regulatory enforcement, and incentivizes DTC DNA companies and third-party websites to promote more secure methods so genetic data cannot be deemed a potential national security threat.
Elias Rios III,
DNA Dystopia: How the National Security Apparatus Could Map the Entire Genome of America Without Violating the Fourth Amendment or the Constitutional Right to Privacy,
87 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol87/iss4/12