Privacy & Cybersecurity Law Blog

On October 1, 2021, Florida’s Protecting DNA Privacy Act (the “Act”), took effect. The Act, signed into law by Governor Ron DeSantis on June 29, restricts certain willful collection, retention, analysis and disclosure of the DNA samples or DNA analysis results of persons in Florida without their express consent.

Under the law, a person is guilty of a misdemeanor when, without express consent, they willfully collect or retain another individual’s DNA sample with the intent to perform DNA analysis. A person is guilty of a felony when, without express consent, they willfully analyze, submit for analysis, or procure the analysis of another individual’s DNA sample. Under the law, it is a felony to willfully disclose another individual’s DNA analysis results to a third party without the individual’s express consent; though this does not apply to disclosing another individual’s DNA analysis results that were previously voluntarily disclosed by the individual or the individual’s legal guardian or authorized representative. The Act further makes the sale or transfer of another individual’s DNA sample or DNA analysis results to a third party a felony, regardless of whether the DNA sample was originally collected, retained or analyzed with express consent.

The law provides exceptions for DNA samples and analyses in a number of contexts, including for purposes of criminal investigations or prosecutions; compliance with a subpoena, summons or other lawful court order; compliance with federal law; a designated newborn screening program; certain paternity determinations under relevant laws; and certain research, including utilizing certain deidentified information, under applicable federal regulations. The Act additionally contains an exception for medical diagnoses, quality assessments, improvement activities and patient treatments when (1) the health care practitioner who collected the DNA sample obtained express consent for clinical laboratory analysis; or (2) the analysis is performed by a clinical laboratory certified by the Centers for Medicare and Medicaid Services.