Do You Know Where Your DNA Is? the Need for DNA Theft Legislation in Ohio

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I. 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.

II. 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. …