Abstract
Right now, research is being done on the genetic material or genetic information of practically every person in the United States, often without their knowledge or consent. These vast stores of research materials offer a tempting target for law enforcement, who have sought to obtain DNA profiles from as many sources as possible. This Article makes the case that this scenario should trouble us—and also that there are existing legal tools that could guard against it.
In so doing, it makes four contributions to the existing literature. First, it identifies the unique features of research genetic data that make it particularly attractive for law enforcement use, enriching debates over the proper scope of human subjects research protections and the limits of de-identification as a defense against privacy harms. Second, it argues that, just as federal research regulations create conditions ripe for law enforcement interest, federal law may provide an antidote: the Certificate of Confidentiality. Certificates are creatures of federal statute that shield sensitive data used in research from nonconsensual disclosure. Bridging evidence law, research ethics, and criminal procedure, the Article demonstrates that Certificates embody a statutory privilege—one that applies even against law enforcement warrants. Third, the Article makes the case that law enforcement encroachment of research resources would be disastrous for the research enterprise, as it would undermine public trust, challenge ethical principles, and perhaps ultimately degrade the quality of human genetic research writ large. Fourth, the Article considers the broader implications of this analysis, arguing that Certificates provide a model for achieving robust privacy protection, even where law enforcement is concerned. Scholars across fields of privacy, evidence, and criminal justice should heed the Certificate statute, help cultivate its success, and build on its lessons for safeguarding our data from ever-expanding government surveillance.
Recommended Citation
Natalie Ram,
Privileging Genetic Privacy,
74
Emory L. J.
1449
(2025).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol74/iss6/2