No Privacy Right to Private DNA Analysis in California

Last week, the California Court of Appeal in San Diego ruled that an individual being sued for paternity has no right to have his DNA analyzed at a private, rather than a County, facility. The opinion is interesting for two reasons: (1) because it adopts, whole-heartedly, the premise that a person has a privacy interest in their DNA profile, even if it’s used solely for identification purposes; and (2) because it seems to close an avenue to alleviating the pressures on public sequencing facilities. The opinion, while putting the issue of “DNA privacy” front-and-center before Californians, seems wrong on both fronts.

In 2010, Michael Mason was sued for paternity, which he contested. Interestingly, Mason then voluntarily submitted his DNA profile obtained through a private sequencing company, Genetic Profiles Corp., with a declaration detailing chain-of-custody. The County of San Diego objected, claiming that it was statutorily required to used its own facilities. The trial court ordered Mason to submit his DNA to the County, but stayed its order so that Mason could file an appeal.

The appeal, County of San Diego v. Mason, No. D060412 (Cal. Ct. App., 4th Dis. Sept. 14, 2012), focused solely on whether Mason had a privacy right to have his DNA analyzed by a private facility rather than “tested in a government building, by a government contracted company, under the auspices of a branch of the State of California.” (Op. at 3.) Though the court acknowledged that “a person has a privacy interest in his or her own DNA profile and genetic information, even if only obtained and used for identification purposes,” (op. at 5-6), it concluded that the trial court’s order mandating Mason to submit his DNA for analysis to the County did not violate his privacy interest. The court based its opinion on the fact that there was “no reason to suspect the County contracted laboratory would be likely to share Mason’s DNA” (op. at 7) because there are state and federal statutes prohibiting the sharing of such information.

While the opinion has the benefit of bringing these issues to the fore, it seems wrong in its analysis of both the law and the policy. First, the law. The County had argued on appeal that it was statutorily required to use its own facilities. It’s not. There is no statute in California–referenced by the court, or any that I could find–that mandates paternity tests to be decided by public rather than private DNA analysis facilities. Rather, the County simply has a statutory duty to ensure that it doesn’t misuse or share DNA samples, and it was this statute that the appellate court relied on. But this begs the question: the County’s obligation not to misuse DNA samples doesn’t mean it’s required to use its own facilities. They’re simply two separate issues unfortunately conflated by the court.

Second, the policy issues. The court adopts, with little discussion, the notion that individuals have a privacy right to their DNA even when solely used for identification purposes. Let’s first distinguish two things: one, your DNA sequence, which contains information about your predisposition to diseases and the like; and two, a limited DNA profile, which, for a paternity test, would simply be noted as “likely match” or “no match.” The court’s analysis is limited to the latter; a peculiar analysis, indeed, because there isn’t a privacy right to any similar biologically identifying information: hair samples, fingerprints, blood-type, etc. Simply put, you don’t have a privacy right in whether your hair matches one found at a crime scene, whether your fingerprint matches a sample, or what your blood-type is. Why do you have one in whether your DNA matches another’s?

In addition, the court missed a wonderful opportunity to alleviate pressure on state DNA analysis facilities, which have famously been plagued by backlogs for years and cost the state a lot of money. Here, it seems that Mason paid for his own analysis and submitted a chain-of-custody report to ensure its accuracy. Why force placing that burden–and cost–on the state? To be sure, allowing individuals to submit their own DNA analysis presents its own concerns, but the use of an accredited testing lab would seem to eliminate “cheating.”

The Mason opinion thus presents this paradox: that while you have a privacy right to your DNA for identification purposes, it’s not enough of a right to voluntarily use a private custodian. A paradox indeed.