Florida Senate - 2021                             CS for SB 1140
       By the Committee on Rules; and Senators Rodrigues and Garcia
       595-03822-21                                          20211140c1
    1                        A bill to be entitled                      
    2         An act relating to unlawful use of DNA; providing a
    3         short title; amending s. 760.40, F.S.; providing
    4         definitions; prohibiting DNA analysis and disclosure
    5         of DNA analysis results without express consent;
    6         providing applicability; removing criminal penalties;
    7         creating s. 817.5655, F.S.; prohibiting the collection
    8         or retention of a DNA sample of another person without
    9         express consent for specified purposes; prohibiting
   10         specified DNA analysis and disclosure of DNA analysis
   11         results without express consent; providing an
   12         exception; providing criminal penalties; providing
   13         exceptions; providing an effective date.
   15  Be It Enacted by the Legislature of the State of Florida:
   17         Section 1. This act may be cited as the “Protecting DNA
   18  Privacy Act.”
   19         Section 2. Subsections (1) and (2) of section 760.40,
   20  Florida Statutes, are amended to read:
   21         760.40 Genetic testing; definitions; express informed
   22  consent required; confidentiality; penalties; notice of use of
   23  results.—
   24         (1) As used in this section, the term:
   25         (a) “DNA analysis” means the medical and biological
   26  examination and analysis of a person’s DNA person to identify
   27  the presence and composition of genes in that person’s body. The
   28  term includes DNA typing and genetic testing.
   29         (b)“DNA sample” means any human biological specimen from
   30  which DNA can be extracted or the DNA extracted from such
   31  specimen.
   32         (c)“Exclusive property” means the right of the person
   33  whose DNA has been extracted or analyzed to exercise control
   34  over his or her DNA sample and any results of his or her DNA
   35  analysis with regard to the collection, use, retention,
   36  maintenance, disclosure, or destruction of such sample or
   37  analysis results.
   38         (d)“Express consent” means authorization by the person
   39  whose DNA is to be extracted or analyzed, or such person’s legal
   40  guardian or authorized representative, evidenced by an
   41  affirmative action demonstrating an intentional decision, after
   42  the person receives a clear and prominent disclosure regarding
   43  the manner of collection, use, retention, maintenance, or
   44  disclosure of a DNA sample or results of a DNA analysis for a
   45  specified purpose.
   46         (2)(a) Except as provided in s. 817.5655, a person or
   47  entity may only perform for purposes of criminal prosecution,
   48  except for purposes of determining paternity as provided in s.
   49  409.256 or s. 742.12(1), and except for purposes of acquiring
   50  specimens as provided in s. 943.325, DNA analysis may be
   51  performed only with express the informed consent. of the person
   52  to be tested, and The results of such DNA analysis, whether held
   53  by a public or private entity, are the exclusive property of the
   54  person tested, are confidential, and may not be disclosed
   55  without express the consent of the person tested. Such
   56  information held by a public entity is exempt from the
   57  provisions of s. 119.07(1) and s. 24(a), Art. I of the State
   58  Constitution.
   59         (b)A person who violates paragraph (a) is guilty of a
   60  misdemeanor of the first degree, punishable as provided in s.
   61  775.082 or s. 775.083.
   62         Section 3. Section 817.5655, Florida Statutes, is created
   63  to read:
   64         817.5655Unlawful use of DNA; penalties; exceptions.—
   65         (1)As used in this section, the terms “DNA analysis,” “DNA
   66  sample,” and “express consent” have the same meanings as in s.
   67  760.40(1)(a), (b), and (d), respectively.
   68         (2)It is unlawful for a person to willfully, and without
   69  express consent, collect or retain another person’s DNA sample
   70  with the intent to perform DNA analysis. A person who violates
   71  this subsection commits a misdemeanor of the first degree,
   72  punishable as provided in s. 775.082 or s. 775.083.
   73         (3)It is unlawful for a person to willfully, and without
   74  express consent, submit another person’s DNA sample for DNA
   75  analysis or conduct or procure the conducting of another
   76  person’s DNA analysis. A person who violates this subsection
   77  commits a felony of the third degree, punishable as provided in
   78  s. 775.082, s. 775.083, or s. 775.084.
   79         (4)It is unlawful for a person to willfully, and without
   80  express consent, disclose another person’s DNA analysis results
   81  to a third party. A person who violates this subsection commits
   82  a felony of the third degree, punishable as provided in s.
   83  775.082, s. 775.083, or 775.084. A person who discloses another
   84  person’s DNA analysis results that were previously voluntarily
   85  disclosed by the person whose DNA was analyzed, or such person’s
   86  legal guardian or authorized representative, does not violate
   87  this subsection.
   88         (5)It is unlawful for a person to willfully, and without
   89  express consent, sell or otherwise transfer another person’s DNA
   90  sample or the results of another person’s DNA analysis to a
   91  third party, regardless of whether the DNA sample was originally
   92  collected, retained, or analyzed with express consent. A person
   93  who violates this subsection commits a felony of the second
   94  degree, punishable as provided in s. 775.082, s. 775.083, or s.
   95  775.084.
   96         (6)Each instance of collection or retention, submission or
   97  analysis, or disclosure in violation of this section constitutes
   98  a separate violation for which a separate penalty is authorized.
   99         (7)This section does not apply to a DNA sample, a DNA
  100  analysis, or the results of a DNA analysis used for the purposes
  101  of:
  102         (a)Criminal investigation or prosecution;
  103         (b)Complying with a subpoena, summons, or other lawful
  104  court order;
  105         (c)Complying with federal law;
  106         (d)Medical diagnosis and treatment of a patient when:
  107         1.Express consent for clinical laboratory analysis of the
  108  DNA sample was obtained by the health care practitioner who
  109  collected the DNA sample; or
  110         2.Performed by a clinical laboratory certified by the
  111  Centers for Medicare and Medicaid Services;
  112         (e)The newborn screening program established in s. 383.14;
  113         (f)Determining paternity under s. 409.256 or s. 742.12(1);
  114  or
  115         (g)Performing any activity authorized under s. 943.325.
  116         Section 4. This act shall take effect October 1, 2021.