In a case that challenges California’s practice of collecting DNA upon arrest, the Electronic Frontier Foundation (EFF) is asking a court to consider the recently reported ENCODE project, which has stated that at least 80 percent of the human genome is functional, and should therefore be considered private information.
Much of the argument for DNA collection rested on the idea that the sections of the genome analyzed—the 13 markers that are part of state and national databases of DNA profiles from convicted offenders (CODIS)—would only reveal an individual’s identity and no other physical traits. But the new ENCODE findings suggest that even these regions may have a function, and could reveal sensitive information as a person’s disease susceptibility, among other personal traits.
However, since the ENCODE papers were released, a number of researchers have criticized how the results were publicized, and many researchers have taken issue with how the word “functional” was defined. In response, one of the ENCODE authors has stated that the word was meant to connote a sequence that was biochemically active and that a much smaller percentage of the genome is expected to be directly involved in gene regulation and thus likely play a role in disease and normal function. But law professor David Kaye at Penn State University questions the court’s ability to evaluate the questions being posed. “After the judges consider the ENCODE papers (by having their law clerks read them?), will they be better informed about the actual privacy implications of the CODIS loci than they were before this excursion into this realm of the bioinformatics?” he wrote on the blog, The Double Helix Law. “I would not bet on it, but maybe I am growing cynical.”
(Hat tip to GenomeWeb.)