Genetic Stalking and Voyeurism: A New Challenge to Privacy.

A new website has just been launched with the URL of www.celebritygenetics.com (“Celebrity Genetics”).1 Designed to appeal to the public’s seemingly insatiable appetite for information about celebrities,2 Celebrity Genetics sells genetic information about hundreds of entertainers, politicians, athletes, and other public figures. For a fee ranging from twenty dollars to several hundred dollars, individuals and commercial publishers (such as blogs and tabloids) can purchase genetic information about selected celebrities, such as relatedness to other celebrities (e.g., paternity); ancestral place of origin; cognitive ability; behavioral genetic profile (e.g., genetic contribution to sexual orientation, propensity to addiction, and degree of risk-seeking behavior); and predisposition to various illnesses. The analysis of celebrity DNA samples is merely the latest application of new genetic technologies to test individuals without consent and for purposes other than health care.3 In the late 1980s, law enforcement officials began matching DNA left at crime scenes with samples donated to police by suspects, often in “DNA dragnets,” to identify serial murderers and rapists.4 Soon thereafter, law enforcement officers began obtaining DNA samples from suspects without consent and, in some cases, surreptitiously or by ruse from licked envelopes and stamps,5 soft drink cans,6 cigarette butts,7 chewing gum,8 and other objects.9 At about the same time, fathers with child support obligations who were suspicious of their child’s paternity were urged by billboard advertising and other mass marketing techniques to have DNA testing of themselves and their children (without the knowledge or consent of the child’s mother) to confirm or rebut their paternity.10 At first, the “doubtful dads” brought their children to genetic testing laboratories for the sample collection.11 Soon thereafter, online entrepreneurs began advertising paternity testing services using home-collection kits involving cheek swabs, which captured buccal cells in saliva.12 It was not long before an “anything goes” atmosphere permeated the Internet world of DNA-based parentage testing—and the trend has continued unabated. For a fee, virtually any source of DNA that can be tested will be tested—with or without consent. For example, one web-based laboratory13 offers a list of items it will test and the cost for each, including the following: chewed chewing gum ($240—Wrigley Juicy Fruit is claimed to work best); cigarette butts ($240—six should be sent); hard candy ($300—well-sucked lollipops are preferred); used condoms ($300); semen stains on clothing ($300);14 used tampons or feminine pads ($240); sweaty hats or ball caps ($300); “hocked loogies” ($300—best if uninfected); plucked hair ($240—three to ten strands); Q-tips with ear wax ($300—up to three swabs); snotty Kleenex ($300—best if full of mucus); and fecal matter ($360—must be frozen immediately).15 Celebrity Genetics thus entered an already sleazy world of covert genetic analysis to offer yet another unsavory DNA testing service. Unlike testing for personal use, however, Celebrity Genetics assumes that the test results will generate widespread commercial interest. Celebrity Genetics’ business depends on maintaining interest in the genetic information of celebrities and replenishing the supply of DNA for analysis, and the company uses an ingenious method to do both. Celebrity Genetics’ website has a section called “DNA Wanted.” Hundreds of celebrities are listed, each with a price or bounty for the first collector who submits a sample of the celebrity’s DNA. As a result, Celebrity Genetics has created an army of thousands of amateur “gene-arazzi” from all over the world who hope to (and in some cases, do) make money and achieve fleeting notoriety by obtaining and selling the DNA of listed celebrities. The Celebrity Genetics website does not specify the method of sample collection; it merely lists some suitable items for DNA testing, such as used chewing gum and cigarette butts. In attempting to verify that the DNA sample submitted is that of the celebrity claimed, the collector uses a cell phone or camera to obtain a digital image of the celebrity using a particular object (for example, a napkin in a restaurant). Then the collector places the object in a special mailing envelope sold by Celebrity Genetics to the DNA sleuths. Once received, the DNA is analyzed and the results are offered for sale on the Celebrity Genetics website.16 In their frenzy to obtain samples, DNA collectors in Hollywood, Cannes, Monte Carlo, Washington, Beijing, and other places have scavenged through the trash cans of political candidates, movie stars, judicial nominees, and Olympic athletes; pilfered napkins and utensils from chic restaurants; bribed bartenders and chambermaids for used glasses, towels, and linens; stolen dirty clothes from laundries and dry cleaners; and vandalized barber and beauty shops.17 Privacy advocates and various celebrities have voiced concerns about the intrusions and disruptions in obtaining the DNA, and in publication of the test results.18 Are Celebrity Genetics and its inevitable “copy-cat” websites merely the harmless, twenty-first century versions of gossip columns and tabloid photographs from an earlier era? Or does this phenomenon represent an insidious infringement on the rights of individuals to be let alone and to prevent their intimate personal health information from being involuntarily generated, publicized, and exploited?19 This Article considers whether individuals—celebrity or not—have or should have constitutional, statutory, or common law rights to prevent the seizure, analysis, and publication of genetic information without their consent. Part II of the Article discusses the constitutional issues associated with taking and analyzing objects containing DNA, including abandoned property. Part III considers the applicability of common law actions for invasion of privacy and conversion. Next, Part IV analyzes state genetic privacy laws. Part V assesses the policy options for dealing with this emerging issue, including illustrative federal and foreign laws, and presents a preliminary legislative agenda. Finally, Part VI concludes by observing what a future world without genetic privacy would be like.