Florida DNA Sample Handling and Processing Act

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Florida recently pass a law governing DNA samples. The law places several restrictions on the use, storage and sharing of DNA samples. Those who break the law can be held criminally responsible.

Legal requirements

The requirements under the Act relate to “DNA samples” which include any specific human biological element from which DNA can be extracted or DNA extracted. To process a person’s DNA, entities must first obtain express consent. The law defines “express consent” as “authorization … materialized by positive action demonstrating an intentional decision”. Along with the consent, there must also be a clear and conspicuous disclosure describing how a DNA sample was collected, used, stored, preserved or disclosed. The notice must also describe the purpose of the processing or the use of the DNA.

Penalties for violation of the law

The law creates varying degrees of criminal liability for failure to obtain express consent. It is an offense to deliberately collect or store DNA without express consent and with the intention of performing DNA analysis. It is a crime to willfully disclose the results of another person’s DNA analysis to a third party without express consent. Selling or voluntarily transferring a person’s DNA sample or the results of a DNA analysis to a third party without express consent, whether or not the sample was collected with express consent in the first place, is also a crime.

Derogations

Certain uses of DNA samples are exempt from these requirements. For example, to use in a criminal investigation or prosecution, or if you are complying with a court order. Subject to certain conditions being met, uses in medical diagnosis, treatment of patients, quality evaluations and improvement activities are also exempt. That is, whether the health care practitioner who originally collected the DNA has obtained express consent or a CMS certified clinical laboratory is performing the activities.

Practice: Companies that collect DNA samples should review their notification and consent practices to ensure they meet the requirements of this new law. States continue to impose new restrictions on the processing of biometric and genetic data. Civil and potentially criminal penalties await companies under these laws.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.Revue nationale de droit, volume XI, number 305


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