Do You Have Property Rights Over Your DNA?

from the this-won't-end-well dept

Wed, Jul 27th 2011 10:48am — Mike Masnick

Eriq Gardner has a great and very detailed article over at ABA Journal exploring questions about the legality of collecting someone's DNA and using it. Apparently, right now, there is a hodgepodge of state laws, with more on the way, and a lot of these issues are likely to end up in court. Realistically speaking, this is a privacy issue, but it's being framed by some as a "property rights" issue, specifically with some new legal proposals:

Perhaps it�s not surprising then to see some of the toughest proposed legislation coming from the New England hotbed of genetics research, specifically in Massachusetts and Vermont, where some bold politicians and health policy think tanks introduced in January a Genetic Bill of Rights for citizens, proposing that individuals should have property rights over their own DNA.

Their legislative proposals would go even further than Alaska�s statute. They would not only mandate consent for the collection and use of DNA but also spell out that individuals have a right to privacy with respect to their genetic information. They would also prohibit entities like auto insurers and money lenders from misusing DNA info. The statute recognizes that DNA has �a fair market value� and carves out only limited exceptions for violating someone else�s DNA property rights: those working under judicial order, such as police investigators. Intentional violations of the statute would carry both prison time and civil fines.

I'm actually a bit surprised that supporters of this type of law think that a property rights model makes sense, because it's then easy to counter with the point that DNA that you leave behind is effectively "discarded" property. That is, if you leave behind a cup you drank out of, does it make sense that you still retain a "property right" over the microscopic DNA you left on the cup?

The fears, of course, are not too difficult to imagine. There have been books and movies written about a world with genetic profiling. But does that really justify some of these laws? And, perhaps, the bigger fear might not be laws about what private parties can do, but what law enforcement is already doing -- such as using DNA analysis to implicate family members in certain crimes. And, as the article notes, even if such laws are put in place, does anyone really think it would stop surreptitious DNA collection and analysis?

To be honest, this is one story where I can definitely see and understand both sides, but I do worry when people seek to go too far with laws to protect what they think is really a privacy issue (especially by conveying property rights), where there may not be a real privacy issue at all.

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Filed Under: dna, privacy, property rights

33 Comments

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Hulser (profile), 27 Jul 2011 @ 10:57am

Circular logic
And, as the article notes, even if such laws are put in place, does anyone really think it would stop surreptitious DNA collection and analysis?

Isn't this circular logic? Without a law that makes it illegal to collect DNA without express approval, there'd be no need for the "collector" to be surreptitious. Also, who realistically thinks that *any* law completely stops anything? Discounting the hyperbole in public statements by politicians, they surely have to realize that any law is only going to limit an activity, not eliminate it.

I do worry when people seek to go too far with laws to protect what they think is really a privacy issue (especially by conveying property rights), where there may not be a real privacy issue at all.

Wait, are you saying that there isn't a privacy issue? Or just that they're taking the wrong approach by characterizing a privacy issue as a property issue?
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Scott Templeman, 27 Jul 2011 @ 11:05am

Mixed Feelings
Michael Crichton touched on this messy issue in his last (while alive) novel Next, and really makes the reader see all the angles. I think DNA patents shouldn't exist at all regardless of the species, genus, etc., because no one outside of a major deity can take credit for evolution or the miracle of life (cater to your personal beliefs). Regarding particular breeds of plants, animals, etc, I do think there should some set of incentives to keep master breeders from getting years of trial and error and hard work motivated.

However, I don't think DNA should be collected and used from humans without consent either (it gets done in incredibly sneaky and underhanded ways). A key example: CIA hosting fake vaccination drives to steal Pakistani DNA in the hunt for Bin Laden. Ends did not justify the means. Furthermore, an individual shouldn't find out that some of their genes got patented by a biotech firm they had never heard of, let alone gave permission to take DNA.

This is a hugely messy issue, with no easy answers. I highly recommend Crichton's book (and be sure to read the epilogue, the guy was a decade ahead of society on this one).
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Sean heeger, 27 Jul 2011 @ 11:07am

Duh!
Which came first?

Possession is nine-tenths the law.

Does mommy and daddy have rights to your dna as well?

Doof!
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out_of_the_blue, 27 Jul 2011 @ 11:12am

Privacy / property: just keep it safe from gov't and corporations!
Your silly nattering over the right way to do so doesn't at all help to preserve our liberties, Mike. Yet another case where you plant a POISON PILL.
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Donnicton, 27 Jul 2011 @ 11:13am

Does this mean a parent can sue their child for unlicensed use of their half of their DNA if the child misbehaves?

The most severe penalty will be radiation treatment until that half of the child's DNA no longer recognizes as being based on that parent.
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DannyB (profile), 27 Jul 2011 @ 11:13am

Property rights vs. Privacy rights
Doesn't your DNA come directly from your parents? Your siblings are likely to share a significant amount of similar DNA.

So how does this complicate the property rights?

What about privacy rights instead of property rights? It might be a good thing to prevent the commercial spread of your DNA information in order to discriminate against you. See the movie Gattaca.

If we discriminate against people with "bad" genes, we are directing the course of evolution. This might have unforseeable and undesirable consequences.
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out_of_the_blue, 27 Jul 2011 @ 11:19am

Re: Mixed Feelings: @ "his last (while alive) novel"
I've never before seen anyone make the "while alive" gaffe without clearly intending humor and so I'm compelled to point it out.

While here: As to Crichton: I was a decade ahead of his novel by reading a little science fiction from decades ahead of me. You young people seem to think everything from your own youth is brand new in the world, completely lack historical perspective.
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Any Mouse (profile), 27 Jul 2011 @ 11:19am

Re: Privacy / property: just keep it safe from gov't and corporations!
Nonsense post is nonsense. Explain your position, if you actually have one.
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boost, 27 Jul 2011 @ 11:22am

blood hell
...better be my property. I can't imagine it being anyone else's property.
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Beta (profile), 27 Jul 2011 @ 11:23am

gedanken sind frei
Suppose I have been given full permission to examine the genome of your spouse and children, but not yours. With this information and some simple calculation I can deduce most of your genome-- and suddenly I am in violation of the law! Note that I haven't communicated your genome to anyone, nor used it for any purpose, but I am in possession of your "property".

A law that I can break by an act of thought is a very bad law.
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sheenyglass (profile), 27 Jul 2011 @ 11:27am

Property rights in tissue - unforeseen costs
This reminds me of the scenario in Moore v Regents of the University of California (http://en.wikipedia.org/wiki/Moore_v._Regents_of_the_University_of_California) where cancer cells were removed as part of treatment and then turned into a profitable, patented cell line, without the consent of Moore (with all sorts of fund chicanery as well). The court found that people could not have property rights in their own tissues for a variety of reasons, both practical and moral. Therefore Moore was not entitled to any money made through the commercializati of his cancer.

One of the practical concerns cited by the court was chilling of medical research, by creating fear of unwittingly using "stolen" tissue. Which is interesting, because this argument applies equally well to the patent in the developed cell line (and patents in general) - fear of patent litigation stifling innovation and all that.
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Zot-Sindi, 27 Jul 2011 @ 11:30am

Re: Privacy / property: just keep it safe from gov't and corporations!
sigh

ok, i'll bite

"Yet another case where you plant a POISON PILL."

No U
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rubberpants, 27 Jul 2011 @ 11:33am

The reality
Your DNA belongs to whomever lobbys congress to pass legislation declaring it so.
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Anonymous Coward, 27 Jul 2011 @ 11:42am

Someone better ask Henrietta Lacks her opinion.
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grumpy (profile), 27 Jul 2011 @ 11:49am

Then there's...
...the opposite thing: people with superior genes. Imagine that I have a gene that makes me immune to lung cancer and other lung diseases - I can smoke whatever I want whenever I want to without ever having to fear any degradation of lung function. Would it be OK to let Joe Random Scientist patent this gene and market The Perfect Gene as therapy? No, I thought not. It would be a discovery, not an invention, but the patent system no longer recognizes that difference. The next best thing to do is to block out patents by saying "That's not yours to patent".

It's still not a good remedy. There'll be massive problems in trying to secure rights to actually market a gene therapy if anyone can block it by saying "/me want monies too". If I had the World Dictatorship for even a single day, I think that fixing the IP system would be in the top 3 on my ToDo, if not number 1. Innovation is the only thing keeping us from becoming just another species in the food chain so we gotta keep it strong.

But I can see where they're coming from in proposing this.
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Chris (profile), 27 Jul 2011 @ 11:59am

Re: Re: Mixed Feelings: @ "his last (while alive) novel"
WTF?
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Greevar (profile), 27 Jul 2011 @ 12:26pm

DNA can't be property.
DNA is like art, it's created from what came before. It's more to reason that DNA is part of a genetic public domain that anyone and everyone can use for the betterment of all people. That said, DNA should not be taken from a person purely for research unless that person gives explicit consent to do so.

Example: You go to your doctor for a strange lump on your back. The doctor performs a biopsy to determine if it is cancerous. The doctor could now use that tissue for research. The point where this would not be legal is if the doctor extracts tissue for no reason other than getting DNA for research. That borders on assault.
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nasch (profile), 27 Jul 2011 @ 12:56pm

Re: Re: Mixed Feelings: @ "his last (while alive) novel"
Gaffe? He is dead, and has had one book published posthumously and another planned for this year. So I'm not sure what gaffe you're pointing out.

http://en.wikipedia.org/wiki/Michael_Crichton

As to Crichton: I was a decade ahead of his novel by reading a little science fiction from decades ahead of me.

That would put your reading material back to 1976 or earlier. I'm curious who was writing about DNA issues back then.
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johnjac (profile), 27 Jul 2011 @ 1:00pm

Incentive
Without DNA property rights, what incentive would I have to create my DNA?
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DannyB (profile), 27 Jul 2011 @ 1:41pm

Re: Then there's...
Disallowing the patenting of genes is not the same thing as giving you property rights over your own genes.

My view:
1. you should be able to keep your genetic information private and disclose some or all of it as you like.
2. genes should not be patentable.
3. you should NOT have property rights to your genes.

I'm not even sure why item 3 matters given items 1 and 2.

I strongly agree with you about fixing IP, innovation and food chain. :-)
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Nicedoggy, 27 Jul 2011 @ 1:42pm

Property no please! Privacy I do want, but property?

This will end up like all other IP laws out there. FUBAR.
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DannyB (profile), 27 Jul 2011 @ 1:45pm

Re: gedanken sind frei
> A law that I can break by an act of thought is a very bad law.

That's like being able to deduce Sony's PS3 signing key from a number of public keys because of their badly implemented random number generator function.

I saw the following in a comic strip soon after.

// Guaranteed to be random.
// Chosen by a fair roll of a dice cube.
function getRandomNumber() { return 4; }
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aldestrawk (profile), 27 Jul 2011 @ 2:54pm

Re: Property rights in tissue - unforeseen costs
My feeling is that while it was reasonable for the court to conclude that Moore shouldn't be entitled to any money by applying a tort for property conversion to his lymphocytes, UC shouldn't be allowed to patent that cell line. It is not clear to me though, by glancing at that patent, if the patent covers just the cell line and the molecules it excretes or also the ability to maintain that type of cell.
Imagine if the HeLa cell line, taken without informed consent from Henrietta Lacks in 1951, was patented. Would all the benefits from widespread research on this line have occurred? Additionally, since HeLa has acted like a weed contaminating many cell lines, would patent considerations complicate all the research that might possibly have, HeLa contaminated, cell lines?
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NotMyRealName (profile), 27 Jul 2011 @ 2:57pm

Re: Property rights vs. Privacy rights
Everything discriminates against "bad" genes. That's how evolution works. It's also (probably) why I have to duck through thresholds in old houses.
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aldestrawk (profile), 27 Jul 2011 @ 3:02pm

Re: Incentive
Your parents, working in collaboration, created your DNA. So, you should be asking what incentive did they have. You are right though, if we let them take away our DNA property rights no one is going to engage in sex and we'll see the collapse of human civilization and the end to humans as a species.
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DRG (profile), 27 Jul 2011 @ 5:41pm

Patenting DNA
The only good thing about the early rush to patent DNA sequences is that most of them will expire before anyone gets around to needing to use them.
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Anonymous Coward, 27 Jul 2011 @ 7:44pm

Re: Patenting DNA
That will not save us. They will just be patented again. The USPTO is not bothering with prior art or obviousness, remember?
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Michael Talpas (profile), 22 Aug 2011 @ 10:01pm

Re: Property rights vs. Privacy rights
[i]If we discriminate against people with "bad" genes, we are directing the course of evolution. This might have unforseeable and undesirable consequences.[/i]

And if we don't discriminate against people with "bad" genes we are directing the course of evolution. Every time you choose a mate to have a child with (monogamous or polygamous), you are making a decision that directs the course of evolution. In fact, unless we put every woman's name into a hat and let the men randomly choose the name, then have a child with them, we are directing the course of evolution.

I don't disagree with the rest of what you have to say, but I wanted to point out the short-sightedness of this comment.
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Howard, 11 Jan 2012 @ 11:17am

Property vs Privacy
If people have a property right in their tissues or DNA then it seems that that would greatly hinder medical research. People could just hold onto their tissue and DNA and sell it to the highest bidder, rather than have it available for researchers around the world to use to advance medical science.
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Howard, 11 Jan 2012 @ 11:38am

Re: Mixed Feelings
I agree, it is a messy issue with no easy answers. There are both property rights and privacy rights issues to be worked out. Is it reasonable that one would really have a property right in the DNA left behind on a discarded paper cup? On the other hand, I wouldn't want my discared DNA (from the paper cup) to be identified with me personally, and used against me by, for example, insurance companies.
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Hi Vis, 31 Dec 2012 @ 1:01pm

Property rights
Perhaps tissue should be treated similar to organ donation, such that prior to surgery a patient could either approve or not approve to allow their tissue to be used for research,... and if they approve to permit research to be conducted on their tissue, then they also give up any property right in that tissue, but not the right of privacy.
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nathan, 15 Jan 2013 @ 7:33pm

DNA rights
Its not about the DNA, its about the entity's attempt to get the DNA and whether or not they are forcing your will of determination which violates your liberty rights to free motion and locomotion as well as your freedom to pursue life according to your own will. It in turn creates involuntary servitude by forcing someone to alter their own will in service to anothers. Slavery.
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Jeff M, 2 Nov 2013 @ 12:05am

DNA
DNA should be the property of the person and protected like that person's medical records. This really should not be that hard to figure out. It's very important now with services like 23andme.com and ancestry.com offering services to check your DNA, but don't disclose whether they keep samples of your DNA. A lot of things can be done with your DNA, you should own it!
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