Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 1140
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/07/2021           .                                

       The Committee on Rules (Rodrigues) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. This act may be cited as the “Protecting DNA
    6  Privacy Act.”
    7         Section 2. Subsections (1) and (2) of section 760.40,
    8  Florida Statutes, are amended to read:
    9         760.40 Genetic testing; definitions; express informed
   10  consent required; confidentiality; penalties; notice of use of
   11  results.—
   12         (1) As used in this section, the term:
   13         (a) “DNA analysis” means the medical and biological
   14  examination and analysis of a person’s DNA person to identify
   15  the presence and composition of genes in that person’s body. The
   16  term includes DNA typing and genetic testing.
   17         (b)“DNA sample” means any human biological specimen from
   18  which DNA can be extracted or the DNA extracted from such
   19  specimen.
   20         (c)“Exclusive property” means the right of the person
   21  whose DNA has been extracted or analyzed to exercise control
   22  over his or her DNA sample and any results of his or her DNA
   23  analysis with regard to the collection, use, retention,
   24  maintenance, disclosure, or destruction of such sample or
   25  analysis results.
   26         (d)“Express consent” means authorization by the person
   27  whose DNA is to be extracted or analyzed, or such person’s legal
   28  guardian or authorized representative, evidenced by an
   29  affirmative action demonstrating an intentional decision, after
   30  the person receives a clear and prominent disclosure regarding
   31  the manner of collection, use, retention, maintenance, or
   32  disclosure of a DNA sample or results of a DNA analysis for a
   33  specified purpose.
   34         (2)(a) Except as provided in s. 817.5655, a person or
   35  entity may only perform for purposes of criminal prosecution,
   36  except for purposes of determining paternity as provided in s.
   37  409.256 or s. 742.12(1), and except for purposes of acquiring
   38  specimens as provided in s. 943.325, DNA analysis may be
   39  performed only with express the informed consent. of the person
   40  to be tested, and The results of such DNA analysis, whether held
   41  by a public or private entity, are the exclusive property of the
   42  person tested, are confidential, and may not be disclosed
   43  without express the consent of the person tested. Such
   44  information held by a public entity is exempt from the
   45  provisions of s. 119.07(1) and s. 24(a), Art. I of the State
   46  Constitution.
   47         (b)A person who violates paragraph (a) is guilty of a
   48  misdemeanor of the first degree, punishable as provided in s.
   49  775.082 or s. 775.083.
   50         Section 3. Section 817.5655, Florida Statutes, is created
   51  to read:
   52         817.5655Unlawful use of DNA; penalties; exceptions.—
   53         (1)As used in this section, the terms “DNA analysis,” “DNA
   54  sample,” and “express consent” have the same meanings as in s.
   55  760.40(1)(a), (b), and (d), respectively.
   56         (2)It is unlawful for a person to willfully, and without
   57  express consent, collect or retain another person’s DNA sample
   58  with the intent to perform DNA analysis. A person who violates
   59  this subsection commits a misdemeanor of the first degree,
   60  punishable as provided in s. 775.082 or s. 775.083.
   61         (3)It is unlawful for a person to willfully, and without
   62  express consent, submit another person’s DNA sample for DNA
   63  analysis or conduct or procure the conducting of another
   64  person’s DNA analysis. A person who violates this subsection
   65  commits a felony of the third degree, punishable as provided in
   66  s. 775.082, s. 775.083 or s. 775.084.
   67         (4)It is unlawful for a person to willfully, and without
   68  express consent, disclose another person’s DNA analysis results
   69  to a third party. A person who violates this subsection commits
   70  a felony of the third degree, punishable as provided in s.
   71  775.082, s. 775.083, or 775.084. A person who discloses another
   72  person’s DNA analysis results that were previously voluntarily
   73  disclosed by the person whose DNA was analyzed, or such person’s
   74  legal guardian or authorized representative, does not violate
   75  this subsection.
   76         (5)It is unlawful for a person to willfully, and without
   77  express consent, sell or otherwise transfer another person’s DNA
   78  sample or the results of another person’s DNA analysis to a
   79  third party, regardless of whether the DNA sample was originally
   80  collected, retained, or analyzed with express consent. A person
   81  who violates this subsection commits a felony of the second
   82  degree, punishable as provided in s. 775.082, s. 775.083, or s.
   83  775.084.
   84         (6)Each instance of collection or retention, submission or
   85  analysis, or disclosure in violation of this section constitutes
   86  a separate violation for which a separate penalty is authorized.
   87         (7)This section does not apply to a DNA sample, a DNA
   88  analysis, or the results of a DNA analysis used for the purposes
   89  of:
   90         (a)Criminal investigation or prosecution;
   91         (b)Complying with a subpoena, summons, or other lawful
   92  court order;
   93         (c)Complying with federal law;
   94         (d)Medical diagnosis and treatment of a patient when:
   95         1.Express consent for clinical laboratory analysis of the
   96  DNA sample was obtained by the health care practitioner who
   97  collected the DNA sample; or
   98         2.Performed by a clinical laboratory certified by the
   99  Centers for Medicare and Medicaid Services;
  100         (e)The newborn screening program established in s. 383.14;
  101         (f)Determining paternity under s. 409.256 or s. 742.12(1);
  102  or
  103         (g)Performing any activity authorized under s. 943.325.
  104         Section 4. This act shall take effect October 1, 2021.
  106  ================= T I T L E  A M E N D M E N T ================
  107  And the title is amended as follows:
  108         Delete everything before the enacting clause
  109  and insert:
  110                        A bill to be entitled                      
  111         An act relating to unlawful use of DNA; providing a
  112         short title; amending s. 760.40, F.S.; providing
  113         definitions; prohibiting DNA analysis and disclosure
  114         of DNA analysis results without express consent;
  115         providing applicability; removing criminal penalties;
  116         creating s. 817.5655, F.S.; prohibiting the collection
  117         or retention of a DNA sample of another person without
  118         express consent for specified purposes; prohibiting
  119         specified DNA analysis and disclosure of DNA analysis
  120         results without express consent; providing an
  121         exception; providing criminal penalties; providing
  122         exceptions; providing an effective date.