On June 30, 2017, the U.S. District Court for the District of Alaska—in Cole v. Gene by Gene, Ltd., No. 1:14-CV-00004-SLG, 2017 WL 2838256, at *5 (D. Alaska June 30, 2017)—denied a motion to dismiss a putative class action lawsuit that alleged DNA testing company Gene by Gene Ltd. improperly disclosed the DNA test results of its customers without their consent in violation of Alaska’s Genetic Privacy Act.
In 2013, Michael Cole purchased a DNA testing kit from Gene by Gene brand Family Tree DNA and, after viewing his results on the company’s website, signed up for several “projects,” which are online forums for people who are conducting research related to their ancestors. Mr. Cole alleged that he understood that the project administrators would have access to his name, contact information, and testing kit number. However, he was not informed that some project administrators had separate websites and that his full DNA test results would be disclosed on those sites.
Mr. Cole claimed that such disclosure violated Alaska’s Genetic Privacy Act, which prohibits the collection and analysis of DNA samples, and the retention or disclosure of DNA samples or DNA test results, without informed and written consent. Cole sought to certify a class of all Alaska residents who had their DNA results disclosed by Gene by Gene without written consent.
Gene by Gene filed a motion to dismiss the putative class action, contending that Mr. Cole lacked Article III standing because he suffered no actual injury. Under the U.S. Supreme Court's decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016), an alleged statutory violation is not enough to confer standing unless a plaintiff independently alleges a harm that is sufficiently “concrete.”
U.S. District Judge Sharon L. Gleason rejected Gene by Gene’s argument and stated that although the disclosure of Mr. Cole’s DNA test results did not result in “tangible economic or physical harm,” it nevertheless was sufficiently “concrete” to establish an injury-in-fact. Spokeo requires that courts consider two factors in determining whether a statutory violation constitutes an injury-in-fact: (1) whether the alleged intangible harm caused by the statutory violation bears a “close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts,” and (2) congressional judgment in establishing the statutory right.
Judge Gleason held that Mr. Cole satisfied the first factor because his alleged injury is “closely related to torts that have been recognized in both federal and Alaska state courts.” Alaska’s Genetic Privacy Act recognizes an “exclusive property interest in one’s DNA and prohibits the unauthorized disclosure of DNA information.” Both the U.S. Court of Appeals for the Ninth Circuit and the Alaska Supreme Court have recognized a right to privacy that can be violated by disclosure of personal information.
Regarding the second factor, Judge Gleason pointed to three considerations that weighed in favor of granting a person in Mr. Cole’s position judicial relief: (1) Alaska’s Genetic Privacy Act’s provision of a private right of action; (2) the availability of statutory damages in addition to any actual damages suffered; and (3) the substantive nature of the statutory right to a privacy interest in one’s DNA. Accordingly, Judge Gleason held that Mr. Cole’s injury was sufficiently concrete to confer standing and denied Gene by Gene’s motion to dismiss.
