Alexis B. Hill
89 Geo. Wash. L. Rev. 1046
Direct-to-consumer DNA testing companies (“DTC companies”) are the latest biotechnological boom. Millions of Americans in the last few years have voluntarily submitted their DNA for analysis to investigate their genetic history and locate distant relatives. These consumers, however, did not know that by submitting their DNA to DTC companies they also gave law enforcement access to their entire family’s DNA. With this new expansive and comprehensive tool, police are now able to identify millions of Americans—and the number continues to grow. After the U.S. Supreme Court’s latest inclination to strengthen Fourth Amendment protections of highly personal information, the Constitution likely also governs law enforcement’s access to this data. But Fourth Amendment jurisprudence, federal and state legislation, and DTC company privacy policies provide inadequate protection. As a result, there is an imbalance that leaves law enforcement with unfettered access to genetic information at the expense of privacy interests.
To restore balance under the Fourth Amendment, legislators should apply the principle of informed consent to this context by requiring DTC companies to include an explicit option for consumers to opt out of law enforcement access that details the consequences of remaining in the law enforcement pool. Then, if consumers give consent, law enforcement may access this pool of DNA and lawfully use any information derived from it against suspects according to third-party consent doctrine. With valid consent to search such private information, this solution will ensure that law enforcement retains access to an important crime-solving tool without sacrificing privacy interests.
