Law / United States / 
Florida
Protecting DNA Privacy Act
Officially Protecting DNA Privacy Act: consent for DNA analysis, confidential results and offenses for unauthorized use of DNA
Fla. Stat. §§ 760.40, 817.5655
In force since .
A sensitive categories rule binding public and private bodies.
- Obligation class
- Consent, Disclosure, Prohibition
- Audit expectation
- none
As of .
What it requires
- If you perform DNA analysis, get the express consent of the person tested first: an authorization shown by an affirmative action, given after a clear and prominent disclosure of how the DNA sample and the results will be collected, used, retained, maintained or disclosed.
- Do not disclose the results of a person's DNA analysis to anyone without that person's express consent.
- If you perform DNA analysis or receive its results, notify the person tested that the analysis was performed or the information received, that it will be made available to their physician on request, and whether it was used in any decision to grant or deny insurance, employment, a mortgage, a loan, credit or an educational opportunity.
- If the information was used in a decision that resulted in a denial, repeat the analysis to verify the first one, and review the denial if the first analysis is inaccurate.
- Do not willfully collect or retain another person's DNA sample with the intent to perform DNA analysis, or submit a sample for analysis or conduct or procure the analysis, without express consent.
- Do not willfully sell or transfer another person's DNA sample or the results of a DNA analysis to a third party without express consent, even if the sample was first collected, retained or analyzed with express consent.
These lines are LexLint's reading of the law's text, as of .
If you get it wrong
Criminal exposureYes
Criminal exposure note
Willful collection or retention of another person's DNA sample without express consent is a misdemeanor of the first degree. Willful submission of a sample for analysis, willful conduct or procurement of the analysis, and willful disclosure of the results to a third party without express consent are felonies of the third degree. Willful sale or transfer of a sample or results to a third party is a felony of the second degree, and each instance is a separate violation.
What this law does
Under section 760.40, a person or entity may perform DNA analysis only with express consent, and the results are the exclusive property of the person tested, are confidential, and may not be disclosed without express consent.
Under section 760.40, a person who performs DNA analysis or receives its results must notify the person tested that the analysis was performed or the information received, that it will be made available to the person's physician on request, and whether it was used in any decision to grant or deny insurance, employment, a mortgage, a loan, credit, or an educational opportunity.
Under section 817.5655, it is a first-degree misdemeanor to collect or retain another person's DNA sample willfully and without express consent with the intent to perform DNA analysis, a third-degree felony to submit a sample for analysis, conduct or procure the analysis, or disclose the results to a third party willfully and without express consent, and a second-degree felony to sell or transfer the sample or results to a third party.
Under section 817.5655, each instance of collection or retention, submission or analysis, or disclosure in violation of the section is a separate violation for which a separate penalty is authorized.
Sections 760.40 and 817.5655 do not apply to a DNA sample or analysis used for criminal investigation or prosecution, complying with a subpoena, court order or federal law, medical diagnosis and treatment of a patient in the circumstances listed, the newborn screening program, determining paternity, or research under the federal rules listed.
Sections 760.40 and 817.5655 apply only to a DNA sample collected from a person in Florida, and to use, retention, maintenance and disclosure of that person's DNA sample or the results of a DNA analysis after the effective date of the act. Section 760.40 was created by chapter 92-101 and most recently amended by chapter 2021-216.
When LexLint raises it
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