AFFIRMATIVE – COUNTERPLAN – STATES/FEDERALISM

AFFIRMATIVE — COUNTERPLAN — STATES/FEDERALISM — ANSWERS 43

FEDERAL LAW IS NEEDED FOR DNA DATABASES

EXPANDING STATE DNA DATABASES RISKS FURTHER STATE LAWS TO COLLECT EVEN MORE INFO

Michelle Hibbert, Associate, Meyer, Hendricks & Bivens, P.A., Phoenix, Arizona, J.D., Chicago-Kent College of Law, "DNA DATABANKS: LAW ENFORCEMENT'S GREATEST SURVEILLANCE TOOL?" Wake Forest Law Review, Fall, 1999, 34 Wake Forest L. Rev. 767, EE2001-JGM, P.798.

Additionally, any trend toward expanding state DNA databanking laws raises another serious concern - that state legislatures eventually will expand their laws to include not only all or more classes of criminal offenders, but to require the DNA banking of all persons whether they have been in trouble with the law or not. n231 [*815] State legislatures may be tempted to require that non-criminals submit DNA samples for databasing in the event they might be useful for "law enforcement purposes." n232 Many worry that, because state laws are allowing the DNA "fingerprinting" of criminals to become routine and justifiable on the basis of "administrative ease," there is no reason to doubt that eventually it will become acceptable to DNA fingerprint all sorts of non-criminals, as has been seen in the context of traditional fingerprinting. n233 In fact, the FBI contends that the costs of collecting and analyzing DNA is the main obstacle limiting the current DNA databanking system from expanding to include all felons. n234 And like traditional fingerprinting, society may become so desensitized to the collection of DNA for banking purposes that it would not be alarming to include everyone in the DNA bank.

THERE IS LITTLE CONSISTENCY IN MAINTAINING AND DISPOSING OF DNA SAMPLES AMONG THE STATES

Nonetheless, state statutes rarely address how these samples should be stored in the interim period or what protections are in place to ensure both the privacy and integrity of the samples pre- and post-analysis. Furthermore, state DNA databanking statutes rarely address what protections should be put in place to ensure that the samples are analyzed properly and that the information entered into the system is correct. Although many statutes make it a crime to misuse information in the databank itself, the samples, which contain an unlimited amount of information about the offender, receive little, if any, protection. Additionally, thirty-eight states have provisions in their state DNA databanking laws that explicitly deal with expungement, n139 but at least six of these statutes [*797] do not require that the state expunge or destroy the samples them [*798] selves. n140

STATE LEGISLATION IS INEFFECTIVE FOR GENETIC TESTING BECAUSE THE STATES CANNOT REGULATE SELF-INSURED EMPLOYEE HEALTH PLANS

Deron H. Brown, JD Candidate, Thomas Jefferson School of Law, Spring 2000; Thomas Jefferson Law Review, "Book Review: Privacy in the Information Age," EE2001-hxm lxnx

The majority of current and proposed state laws address the use of genetic information in the context of health insurance, an industry which has long been regulated primarily at the state level. In practice, however, state laws do not reach many insurers, due to preemption by the federal Employee Retirement Income Security Act of 1974 ("ERISA"). n60 ERISA preempts state laws that regulate self-insured employee health plans. n61 [*588] Many employees obtain health insurance through self-insured employers who cannot be reached by state laws regulating insurance. Although ERISA imposes substantive regulation primarily on pension plans, its language provides inadequate protection for employees in the area of health insurance and fails to provide adequate federal regulation to replace the state regulation it preempts. n62 Consequently, there is a need for a comprehensive scheme of federal regulation to protect employee rights against genetic discrimination by the health insurance industry.