Florida Senate - 2021                          SENATOR AMENDMENT
       Bill No. CS/HB 833, 1st Eng.
       
       
       
       
       
       
                                Ì178628NÎ178628                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 2/AD/2R         .            Floor: C            
             04/29/2021 10:56 AM       .      04/29/2021 05:17 PM       
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       Senator Rodrigues moved the following:
       
    1         Senate Substitute for Amendment (481276) (with title
    2  amendment)
    3  
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. This act may be cited as the “Protecting DNA
    7  Privacy Act.”
    8         Section 2. Subsections (1) and (2) of section 760.40,
    9  Florida Statutes, are amended to read:
   10         760.40 Genetic testing; definitions; express informed
   11  consent required; confidentiality; penalties; notice of use of
   12  results.—
   13         (1) As used in this section, the term:
   14         (a) “DNA analysis” means the medical and biological
   15  examination and analysis of a person’s DNA person to identify
   16  the presence and composition of genes in that person’s body. The
   17  term includes DNA typing and genetic testing.
   18         (b)“DNA sample” means any human biological specimen from
   19  which DNA can be extracted or the DNA extracted from such
   20  specimen.
   21         (c)“Exclusive property” means the right of the person
   22  whose DNA has been extracted or analyzed to exercise control
   23  over his or her DNA sample and any results of his or her DNA
   24  analysis with regard to the collection, use, retention,
   25  maintenance, disclosure, or destruction of such sample or
   26  analysis results.
   27         (d)“Express consent” means authorization by the person
   28  whose DNA is to be extracted or analyzed, or such person’s legal
   29  guardian or authorized representative, evidenced by an
   30  affirmative action demonstrating an intentional decision, after
   31  the person receives a clear and prominent disclosure regarding
   32  the manner of collection, use, retention, maintenance, or
   33  disclosure of a DNA sample or results of a DNA analysis for
   34  specified purposes. A single express consent may authorize every
   35  instance of a specified purpose or use.
   36         (2)(a) Except as provided in s. 817.5655, a person or
   37  entity may only perform for purposes of criminal prosecution,
   38  except for purposes of determining paternity as provided in s.
   39  409.256 or s. 742.12(1), and except for purposes of acquiring
   40  specimens as provided in s. 943.325, DNA analysis may be
   41  performed only with express the informed consent. of the person
   42  to be tested, and The results of such DNA analysis, whether held
   43  by a public or private entity, are the exclusive property of the
   44  person tested, are confidential, and may not be disclosed
   45  without express the consent of the person tested. Such
   46  information held by a public entity is exempt from the
   47  provisions of s. 119.07(1) and s. 24(a), Art. I of the State
   48  Constitution.
   49         (b)A person who violates paragraph (a) is guilty of a
   50  misdemeanor of the first degree, punishable as provided in s.
   51  775.082 or s. 775.083.
   52         Section 3. Section 817.5655, Florida Statutes, is created
   53  to read:
   54         817.5655Unlawful use of DNA; penalties; exceptions.—
   55         (1)As used in this section, the terms “DNA analysis,” “DNA
   56  sample,” and “express consent” have the same meanings as in s.
   57  760.40(1)(a), (b), and (d), respectively.
   58         (2)It is unlawful for a person to willfully, and without
   59  express consent, collect or retain another person’s DNA sample
   60  with the intent to perform DNA analysis. A person who violates
   61  this subsection commits a misdemeanor of the first degree,
   62  punishable as provided in s. 775.082 or s. 775.083.
   63         (3)It is unlawful for a person to willfully, and without
   64  express consent, submit another person’s DNA sample for DNA
   65  analysis or conduct or procure the conducting of another
   66  person’s DNA analysis. A person who violates this subsection
   67  commits a felony of the third degree, punishable as provided in
   68  s. 775.082, s. 775.083, or s. 775.084.
   69         (4)It is unlawful for a person to willfully, and without
   70  express consent, disclose another person’s DNA analysis results
   71  to a third party. A person who violates this subsection commits
   72  a felony of the third degree, punishable as provided in s.
   73  775.082, s. 775.083, or s. 775.084. A person who discloses
   74  another person’s DNA analysis results that were previously
   75  voluntarily disclosed by the person whose DNA was analyzed, or
   76  such person’s legal guardian or authorized representative, does
   77  not violate this subsection.
   78         (5)It is unlawful for a person to willfully, and without
   79  express consent, sell or otherwise transfer another person’s DNA
   80  sample or the results of another person’s DNA analysis to a
   81  third party, regardless of whether the DNA sample was originally
   82  collected, retained, or analyzed with express consent. A person
   83  who violates this subsection commits a felony of the second
   84  degree, punishable as provided in s. 775.082, s. 775.083, or s.
   85  775.084.
   86         (6)Each instance of collection or retention, submission or
   87  analysis, or disclosure in violation of this section constitutes
   88  a separate violation for which a separate penalty is authorized.
   89         (7)This section and section 760.40 do not apply to a DNA
   90  sample, a DNA analysis, or the results of a DNA analysis used
   91  for the purposes of:
   92         (a)Criminal investigation or prosecution;
   93         (b)Complying with a subpoena, summons, or other lawful
   94  court order;
   95         (c)Complying with federal law;
   96         (d)Medical diagnosis, conducting quality assessments,
   97  improvement activities, and treatment of a patient when:
   98         1.Express consent for clinical laboratory analysis of the
   99  DNA sample was obtained by the health care practitioner who
  100  collected the DNA sample; or
  101         2.Performed by a clinical laboratory certified by the
  102  Centers for Medicare and Medicaid Services;
  103         (e)The newborn screening program established in s. 383.14;
  104         (f)Determining paternity under s. 409.256 or s. 742.12(1);
  105         (g)Performing any activity authorized under s. 943.325; or
  106         (h)Conducting research, and designing and preparing such
  107  research, subject to the requirements of, and in compliance
  108  with, 45 C.F.R. part 46, 21 C.F.R. parts 50 and 56, or 45 C.F.R.
  109  parts 160 and 164; or utilizing information that is deidentified
  110  consistent with 45 C.F.R. parts 160 and 164 and that is
  111  originally collected and maintained for research subject to the
  112  requirements of, and in compliance with, 45 C.F.R. part 46, 21
  113  C.F.R. parts 50 and 56, or 45 C.F.R. parts 160 and 164.
  114         (8)The provisions of this section and s. 760.40 apply only
  115  to a DNA sample collected from a person in Florida, and to use,
  116  retention, maintenance and disclosure of such person’s DNA
  117  sample or the results of a DNA analysis after the effective date
  118  of this act.
  119         Section 4. This act shall take effect October 1, 2021.
  120  
  121  ================= T I T L E  A M E N D M E N T ================
  122  And the title is amended as follows:
  123         Delete everything before the enacting clause
  124  and insert:
  125                        A bill to be entitled                      
  126         An act relating to unlawful use of DNA; providing a
  127         short title; amending s. 760.40, F.S.; providing
  128         definitions; prohibiting DNA analysis and disclosure
  129         of DNA analysis results without express consent;
  130         providing applicability; removing criminal penalties;
  131         creating s. 817.5655, F.S.; prohibiting the collection
  132         or retention of a DNA sample of another person without
  133         express consent for specified purposes; prohibiting
  134         specified DNA analysis and disclosure of DNA analysis
  135         results without express consent; providing an
  136         exception; providing criminal penalties; providing
  137         exceptions; providing applicability; providing an
  138         effective date.