After breaking new ground on DNA privacy laws last year, the Florida Legislature this Session is digging deeper into the issue.
The House passed a bill (HB 833) Thursday afternoon to increase penalties for violating someone’s DNA privacy in an 85-28 vote.
The Senate considered the same bill Thursday morning. The upper chamber passed the bill 22-18, but only after senators debated whether sharing someone’s DNA – an act made easy with technology – should be a felony crime.
Informed consent is already a requirement to collect a person’s DNA, and violating the consent law is a first degree misdemeanor.
The new legislation would up the consent requirement to written consent and increase penalties depending on how the DNA was used.
Sen. Ray Rodrigues carried the legislation in the Senate.
“We need to make sure we give law enforcement all the tools they need to protect every citizen in this state in the right to privacy they have in retaining and controlling their DNA,” Rodrigues said.
For collecting another person’s DNA without written consent, the penalty would remain a first degree misdemeanor. But if the unlawfully collected DNA is analyzed or or shared with a third party, violators could be charged with a third degree felony, punishable by up to five years in prison and a $5,000 fine.
The new law would allow exceptions, including determining paternity, criminal investigations and prosecutions, or entering information into the Florida Department of Law Enforcement’s criminal DNA database.
Rodrigues also said an amendment added to the bill during committee provides an exception in the bill for companies like 23andMe and Ancestry.com to keep operating. Both of those companies offer direct-to-consumer DNA testing.
Sen. Jeff Brandes did not support the bill. Brandes said the bill lacks mens rea, which is a legal term that means certain crimes have to be committed with criminal intent to be a crime as opposed to a person committing a crime without knowing they are breaking a law.
“This bill doesn’t require you to have a criminal mind. It doesn’t require mens rea. It requires you to simply disclose,” Brandes said.
Brandes said the popularity of direct-to-consumer DNA testing makes it too easy to accidentally violate the law.
“Think about your kids in high school sharing information on a phone, and think about how many felonies can be committed in one night when somebody discloses DNA at a party, shares it via an app, puts it on Twitter,” Brandes said. “With the click of a button you’ve now potentially committee a felony.”
Rodrigues, conversely, said the penalty in current law is not enough of a deterrent.
“We already had a statue on the books about DNA privacy. It is currently a misdemeanor. The current entity is a misdemeanor, and what we’ve learned is the current code is not enough to deter people from either collecting or stealing DNA,” Rodrigues said.
Rodrigues pointed to a staff analysis that said the bill is likely to add 10 or fewer prison beds, and he pointed to language in the bill that specifies DNA must be taken “willfully and without authorization.”
This latest DNA privacy legislation builds on legislation from last Session, backed by now-House Speaker Chris Sprowls, when Florida became the first state to prevent certain insurance providers from using DNA analyses to make coverage decisions without the owner of the DNA’s consent. The rising popularity of DNA testing kits like 23andMe spurred lawmakers to expand those protections.
Proponents of the this Session’s legislation say a high-profile series of lawsuits out of Palm Beach proves the need.
The lawsuit centers on alleged defamation and a hate-mail campaign involving Marvel Chairman Isaac Perlmutter and his wife. According to an attorney for Perlmutter, an attorney for the other party in the lawsuit unlawfully collected Perlmutter and his wife’s DNA by using paper exhibits treated with chemicals designed to gather DNA from any person the paper touched.
During a deposition, the attorney for the opposing party in the lawsuit handed Perlmutter the treated paper without telling him about the chemicals on the paper that would collect DNA. The attorney also collected a water bottle Perlmutter’s wife used during her deposition.
Both items were used in a DNA analysis and the results were compared to DNA on the fingerprints left on the hate mail.
The judge in the lawsuit case stated that “no binding authority has ever definitively answered the question of whether genetic material such as DNA constitutes “property.”
Perlmutter is suing over the DNA collection.
As currently written, there is no terminology in the bill allowing exceptions for defense attorneys in the course of making a case for their client to collect a person’s DNA without written and informed consent.
An attorney for Perlmutter spoke during a committee hearing as a proponent of the new bill.
“As a misdemeanor it doesn’t have teeth, and it needs teeth,” he said.
The bill was carried in the House by Rep. Josie Tomkow.