Do you know where your DNA is? The need for DNA theft legislation in Ohio.

• Author: Collins, Elizabeth

1. INTRODUCTION II. ABANDONMENT AND THE FOURTH AMENDMENT III. PROBLEMS RESULTING FROM DNA THEFT A. Privacy Infringement B. Genetic Discrimination C. Paternity Testing D. Security Risks IV. DNA Theft Legislation V. PROPOSED DNA THEFT LEGISLATION FOR OHIO A. Why DNA Theft Should be Regulated by the States B. Why DNA Theft Should be a Criminal Offense C. Model Ohio DNA Theft Statute VI. CONCLUSION I. INTRODUCTION

   In 2002, discarded dental floss revealed more about famous Hollywood director Steve Bing than he had foreseen--it revealed that he was a father. (1) A private investigator stole DNA contained on dental floss from Mr. Bing's garbage for the purpose of paternity testing. (2) Without his consent, Mr. Bing's life was turned upside down by DNA testing. (3)

   Countless stories, such as Mr. Bing's, are due to developments in technology that have made DNA testing more affordable and accessible to the public. (4) DNA left on discarded cans, cigarettes, gum, tissues, or even cut hair at a barbershop invites the opportunity for individuals to obtain and test others' DNA without their consent or knowledge. (5) This DNA is often stored in genetic databases (6) and biobanks (7) without the knowledge or consent of these individuals. (8)

   DNA, short for deoxyribonucleic acid, (9) is the "fundamental building block of an individual's entire genetic makeup." (10) DNA is the most basic matter of life, representing the unique genetic makeup of each individual. (11) DNA analysis provides three types of extremely personal and unique genetic information: (1) "personal information," (12) which includes information related to genetic predispositions and personal traits; (2) "medical information" (13) regarding one's "kinship;" and (3) information regarding one's heritage, which includes "the routes and origin of [one's] ancestors." (14) While some genetic information is readily discoverable, such as hair and eye color, other far more unique and personal genetic information, such as kinship and paternity, is discoverable only through genetic testing. (15) The amount of uniquely personal information obtainable from DNA testing, and the privacy and safety risks resulting from access to and publication of that information, are extraordinary. (16) There is no federal regulation of DNA theft. (17) Thus far, eight states (18) have enacted legislation prohibiting DNA theft, one states has enacted a genetic bill of rights, and two states have proposed similar genetic bill of rights legislation. (19) Ohio is among the many states without legislation prohibiting DNA theft. (20)

   This Note examines the several privacy and safety issues stemming from DNA theft. Part ii discusses constitutional and common law regarding the abandonment of property, particularly under the Fourth Amendment, and explains how the Fourth Amendment does not protect individuals from DNA theft. Part III details the many consequences resulting from DNA theft. These risks, among countless others, include employment and insurance discrimination, (21) family turmoil caused by paternity testing which is often inaccurate and conducted without consent, genetic stalking, security risks, and the unauthorized publication of personal medical information and ancestral information. (22) Part IV examines DNA theft legislation adopted by eight states and three states' genetic bill of rights, as well as DNA theft legislation in Great Britain. Part V addresses the need for DNA theft legislation in Ohio and proposes a new statute for Ohio that criminalizes DNA theft. Part VI concludes this Note with an explanation of why DNA theft legislation is necessary to protect the safety and privacy of Ohio residents, particularly Ohio's need to criminalize DNA theft.

2. ABANDONMENT AND THE FOURTH AMENDMENT

   Before discussing the issues stemming from DNA theft, it is important to understand the constitutional and common law regarding discarded materials. The Fourth Amendment seeks to protect individuals from unreasonable searches and seizures and provides:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (23) This amendment was designed to "guarantee people the right to be secure in their persons, houses, papers, and effects" against unreasonable and therefore unlawful government searches and seizures (24) and was adopted to ensure citizens' right to privacy from arbitrary governmental invasion. (25) When discussing an individual's right to privacy in a discarded item, it is important to first inquire whether the Fourth Amendment provides any constitutional protection in that item. (26) unfortunately, for individuals targeted and victimized by DNA theft, it appears that the Fourth Amendment affords no such protection. (27)

   For an individual to invoke Fourth Amendment protection from an unreasonable search or seizure, courts will conduct a two-part inquiry: first, whether the person has exhibited an actual and subjective expectation of privacy, (28) and second whether that individual has a reasonable expectation of privacy in the object. (29) In other words, courts will inquire whether the individual has shown that he intends to preserve an object as private, (30) viewed objectively under the circumstances, and whether that intent is one which society is willing to consider reasonable. (31)

   In defining a reasonable expectation of privacy, the Supreme Court in Katz v. United States acknowledged an expectation of privacy in an individual's home when the Court recognized that "a man's home is, for most purposes, a place where he expects privacy." (32) However, the courts have subsequently diminished the scope of the definition of a reasonable expectation of privacy. (33) Narrowing this definition, courts have held that the Fourth Amendment does not apply to property that has been "voluntarily abandoned, because society does not recognize an expectation of privacy in abandoned property as being objectively reasonable." (34)

   The definition of abandoned property has been broadened substantially. (35) Courts have held that objects which have been "knowingly expose[d]" to the public view are considered abandoned property. (36) In California v. Greenwood, (37) the Supreme Court held that garbage bags placed on a curb intended for garbage pick-up were considered knowingly exposed to the public view, thereby signifying that the individuals who placed the garbage on the curb have no reasonable expectation of privacy in the garbage, and the garbage could legally be searched by police without a search warrant. (38) Courts have included DNA contained on discarded items, (39) such as saliva left on a discarded cigarette butt, as abandoned. (40) Specifically, a court found that, by abandoning the cigarette butt, the defendant had also abandoned any reasonable expectation of privacy in his DNA contained on the cigarette butt. (41) Relying on the Supreme Court's decision regarding discarded garbage bags placed on a curb in Greenwood, courts have continued to shrink the definition of a reasonable expectation of privacy, allowing police to access not only abandoned items, but DNA left on these items. (42)

   With courts' reluctance to expand Fourth Amendment protections to DNA left on abandoned items, and trending toward affording DNA on discarded items no more protection than the discarded items themselves, it appears that "[w]ith abandoned DNA, existing Fourth Amendment law appears not to apply at all." (43) With a lack of Fourth Amendment protection for abandoned DNA, it is imperative that state legislatures adopt legislation to protect residents from privacy infringements. (44)

3. PROBLEMS RESULTING FROM DNA THEFT

   DNA is everywhere. (45) From chewing gum, to a strand of hair, to a flake of skin, to saliva left on a discarded can, people leave traces of their DNA in various forms and locations on a daily basis. (46) Advancements in technology have caused decreased prices and increased availability of various forms of DNA testing, (47) thereby eroding individuals' DNA privacy. (48) The phenomenon of DNA theft has created many problems for individuals, as well as society as a whole, making it increasingly difficult for personal and private information to stay private, while new technology continues to provide new ways to infringe upon DNA privacy. (49) This section explains several of these problems.

   1. Privacy Infringement

      Recent technological developments have created direct-to-consumer testing sold in drugstores and over the Internet. (50) This testing provides extremely personal genetic information without requiring the DNA host's knowledge or consent. (51) These tests, "with prices well into the recreational and hobby budget range, provide the most personal, private and unchangeable information possible about you." (52) A lab can test for genealogy and ancestry for just $169 (53) and run a genetic predisposition test for twenty-five health conditions and diseases for $299. (54)

      Consequently, individuals' privacy is threatened for just a few hundred dollars and a trip to the local drugstore, or by logging onto the Internet. (55) As was the case for Steve Bing, (56) genetic information is often published to third parties. (57) Without legislation criminalizing DNA theft, individuals cannot protect or shield their genetic information from the public sphere and are left with no recourse once such privacy rights have been violated. Kathy Hudson, the former head of the Genetics and Public Policy Center, (58) explained that individuals should be afforded privacy in their own DNA as a basic right, "[j]ust as we have a right to expect that relatives, neighbors, or even strangers can't poke through our medical records without our...