Protecting Genetic Identity with the Right of Publicity: Applying California’s Common Law Right of Publicity to Direct-to-Consumer Genetic Testing

Protecting Genetic Identity with the Right of Publicity: Applying California’s Common Law Right of Publicity to Direct-to-Consumer Genetic Testing

70 Am. U. L. Rev. 1217 (2021).

* Junior Staff Member, American University Law Review, Volume 70; J.D. Candidate, May 2022, American University Washington College of Law. I would like to thank the Law Review staff for their invaluable efforts in preparing this Comment for publication. I would also like to thank Professor Jonas Anderson for providing guidance and encouragement as my faculty advisor. Finally, I would like to thank my family and my wife, Mary, for their endless love and support.

The completion of the Human Genome Project has and will continue to spur extraordinary innovation in the realm of genetics. One such innovation was the rise of commercial, direct-to-consumer (DTC) genetic testing, which allows consumers to learn about their origin, family, and disease predisposition, all by paying a modest sum and providing a tube of saliva. But the hidden cost is more severe: forfeiture of control over one’s genetic identity. DTC genetic companies have exploited this vulnerability, entering into data-sharing agreements worth hundreds of millions of dollars.

This Comment argues that DTC genetic testing companies who sell and share consumers’ genetic information violate the right of publicity. Specifically, they violate California’s common law right of publicity, which affords broad protections for indicia of identity. Because genetic information reveals not only the identity of a sample provider, but more importantly, myriad details both intimate and mundane, it is part of each person’s identity. Rapidly evolving science and technology further enable re-identification of even anonymized data sources. These companies’ electronic consent agreements, though complex, are insufficient to enable the identity appropriation these companies commit. Therefore, these companies are liable for violating their consumers’ right of publicity.