Is it illegal to own DNA?

Question

Is there a law against owning someone else's DNA without their consent/knowledge ? I've googled it but I'm a bit confused. It says here that in California the police can compile a database of DNA without people being convicted or charged. It also seems like the 4th Amendment could be used to secure your DNA but the ruling mentioned there states

"your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason."

Otherwise, not much has come up aside from third-party gene testers. The results on this site seem to say (at least, to my uneducated eye) that you can't "protect" your DNA by copyright or patent if you abandon it (cuz trash is public property).

Does that mean that police can go through your trash once it's out of your curtilage ? This site says you can file a motion to suppress any trash evidence (if within your right of privacy ?) but is there a case where the police can't get a warrant to obtain your DNA directly but can instead wait for your trash and then get it from there ? Or is every case where a warrant isn't obtainable also a case where trash evidence isn't allowed ?

And what about anyone ? I can think of a few queasy things someone can do with your DNA like finding out details about you that you don't want them to know. In 2006, the UK made it illegal to sequence another person's DNA without permission. But it says here that it should be a felony theft in USA but isn't ? Yet ? Are there any other countries like the UK ? Does it instead matter much more what I do with the DNA I collect or is simply intentionally owning it enough to constitute a crime ? Let's say I follow someone into a barber shop and leave with some clippings of their hair, am I doing something illegal ? I'd expect this to vary from state to state, right ?

Answer 1

I don't know what you mean by "own a person's DNA", but analogous to owning a car or picture, you can't own a person, which is what would be required to have complete ownership of all of a person's DNA. You can legally own a sample of a person's DNA, for example by buying or bartering tissue, or if you are given tissue. If you grab a handful of hair from a person and pull it out, it is not legally yours, and you can be required to return it. If you lose, misplace or abandon tissue (or a knife), then the finder could end up owning it, depending on the circumstances. Tissue in the trash is more complicated since there may be municipal laws preventing dumpster-diving. Setting aside any such municipal codes, if you abandon your property, someone else can claim it. Hair on the floor of a barbershop, or in the trash, is a good example abandonment: it could also be an example of trespassing, in case the barber objects to you gathering samples from his floor.

The 4th Amendment cannot be used to secure your DNA: it could be used to prevent securing DNA, if the intended application is compelled blood drawing. The ruling in Maryland v. King did not say that "your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason", since that was an objection to the majority ruling given in the dissent, not part of the actual ruling. Maybe that will end up being true, but that hasn't been determined to be the law yet. With a warrant, the police can take a tissue sample, and not wait for you to throw a tissue sample in the trash. They can also take a cheek swab from an arrestee just like they can take a photo or fingerprints (that's what Maryland v. King says).

Once we've settled the matter of obtaining a DNA sample, the concept of ownership might be relevant if a party could restrict others from using that DNA pattern. But DNA is not subject to patent or copyright, so once I know your DNA pattern, you cannot legally prevent me from using that information. However, you might, if I gave you a sample as part of a contract, and there is a clause in that contract that prevents the other party from ever using that information.