In the last couple of days, commenting a Linkedin post about Article 29’s (the future European Data Protection Supervisor) opinions, I’ve been involved in an interesting thread that can be summarized as “Authority vs. Legal Interpretation”. Continue reading “Enforcing the GDPR: Authority vs Legal Interpretation”
The privacy hysteria that since twenty or so years affects policy makers and data protection authorities, reached a new peak with the upcoming data protection regulation whose text has been published last Dec, 18, 2015.
While, thanks God, the text clearly states that “biosample” as such aren’t “personal data”
genetic data should be defined as personal data relating to the genetic characteristics of an individual which have been inherited or acquired as they result from an analysis of a biological sample from the individual in question, in particular by chromosomal, deoxyribonucleic acid (DNA) or ribonucleic acid (RNA) analysis or analysis of any other element enabling equivalent information to be obtained
Nevertheless there is no clear reference to the fact that genetic (and, in general, health-related) researches can’t be pre-emptively limited to specific processing since scientists work with microscopes and not with crystal balls.
The result is that every research project that deals with patient (and patient’s relatives) records might face enormous bureaucratic burdens every time a new path of study emerges from the current one.
Furthermore, the regulation says that:
Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or health data
In other words, then, we will likely face a flood of local regulation that will make harder to perform researches that save human life.
Sure, there will always be the possibility to challenge in court the letter of the law, claiming that no provision can be interpreted in such a way to endanger human life and that data protection, in constitutional terms, is a “lesser right” when compared to the right to health. But this takes time, money and an open-minded court.
In the meantime, scientists will either slow down their activities or risk to be taken in court.
Does it make sense?
Tomorrow, at the University of Milan, I shall participate to a round-table organized by the Italy Innocence Project. The topic is: The Italian Legal System and the Judiciary Mistake.
Here is the full program:
ERRORE GIUDIZIARIO E TUTELA DELL’INNOCENTE
WRONGFUL CONVICTION AND PROTECTION OF THE INNOCENT
EVENTO SPONSORIZZATO DAL CENTER FOR THE GLOBAL STUDY OF WRONGFUL CONVICTIONS DELLA FACOLTÀ DI LEGGE DELL’UNIVERSITÀ DI CINCINNATI, OHIO, STATI UNITI (DIRETTO DAL PROF. M. GODSEY)
VENERDÌ 6 GIUGNO 2014 9.30 – 18.30
UNIVERSITÀ DEGLI STUDI DI MILANO – SALA NAPOLEONICA – VIA SANT’ANTONIO 10
SALUTI INTRODUTTIVI: LUCA LUPÁRIA (Professor of Criminal Procedure at the University of Milan, Director of the Italy Innocence Project); VINICIO NARDO (Segretario dell’Unione delle Camere Penali )
PRIMA SESSIONE (ORE 09.50) COORDINA: PROF. LUCA LUPARIA
L’ESPERIENZA DEGLI STATI UNITI D’AMERICA
MARK GODSEY (Professor at the University of Cincinnati, Director of the Ohio Innocence Project)
JUSTIN BROOKS (Professor at the California Western School of Law, Director of the California Innocence Project)
LA TUTELA DEL CONDANNATO INNOCENTE IN EUROPA
MICHAEL NAUGHTON (Director of the University of Bristol Innocence Project, Director of the Innocence Network UK)
DAVID LANGWALLNER (Professor at the Griffith College of Dublin, Director of the Irish Innocence Project)
SYLVAIN CORMIER (Attorney, Director of the Innocence Project of France)
EVELYN BELL (Chief Scientist of the Knoops’ Innocence Project)
MARIA EJCHART-DUBOIS (Member of the Helsinki Foundation for Human Rights and of the Innocence Legal Clinic in Warsaw)
SECONDA SESSIONE (ORE 14.45)
CAUSE E RIMEDI DELL’ERRORE GIUDIZIARIO IN UNA PROSPETTIVA COMPARATA
MARTIN KILLIAS (Expert in Criminology, Professor at the Universities of St. Gallen, Lausanne and Zurich) DANIEL VANEK (Expert in forensic DNA identifications, Professor at the Charles University in Prague) ERIC VOLZ (International Innocence Expert, Director of The David House Agency)
ULF STRIDBECK (Professor in Criminal Law at the Faculty of Law, University of Oslo)
ERRORE GIUDIZIARIO E SISTEMA ITALIANO
LUCA LUPÁRIA (Professor of Criminal Procedure at the University of Milan, Director of the Italy Innocence Project) GIUSEPPE GENNARI (Judge at the Court of Milan)
ANDREA MONTI (Attorney, Expert in forensic DNA)
MARTINA CAGOSSI (Junior researcher at the University of Milan)
EVENTO GRATUITO (PREVIA ISCRIZIONE)
TRADUZIONE SIMULTANEA INGLESE-ITALIANO
Evento accreditato dall’Ordine degli Avvocati di Milano (n. 6 crediti formativi)
To comply with privacy and data-protection regulations, Material Transfer Agreements for human samples often state that the samples are either anonymous (meaning: the donor institution doesn’t know at all the ID of the patient) or anonymized (the donor institution only knows and keeps secret the patient ID.) But this compliance approach won’t work anymore, since the probability of backtracing the ID of patient accessing third parties provided information is not only a proof-of-concept but an “actual reality.”
Amending the MTA to handle this issue is far more complicated than ask the lawyers to just re-phrase their lingo, because what is actually needed is a thorough analysis of the human sample collection process back to the first ring of the donor chain.
The sooner the biobank community will address this issue, the better for the research, the pharma industry and – first of all – the patient himself.
“Authentication of forensic DNA samples” is a paper released on the last Forensic Science International: Genetics issue by a group of Israeli researchers. Authors claim to have found a method to fabricate artificial biological samples (and the way to tell the differences from the original one) and wish that their finding will become a standard in forensic procedures to maintaini “the high credibility of DNA evidence in the judiciary system.”
Does this method really affect criminal investigations and trials?
“We still are in the “bad cop” (or evidence tamperer) field who planted faked biological samples on the crime scene” – says Andrea Cocito, researcher at IFOM, Milan (IT.) In fact, the “fabricated-genetic-evidence defense” has been proven viable in the OJ Simpson case tried between 1994 and 1995 in Los Angeles, USA. Mr. Simpson’s lawyers were able to raise the suspicion that the results of the analysys on the biological samples coming from the crime scene – aiming at Mr. Simpson as “owner” of the DNA – weren’t reliable enough because of the police handling lack of care. “If” – Cocito argues – “a biological sample has really been found on the crime scene, if the sample isn’t planted and if it’s not been degraded, then I might analyze both samples (the crime scene one and the one belonging to the defendant) to see if I get a match. In these case, there couldn’t be reasonable doubts on the results.” Thus, matching the defendant biosample collected in a controlled environment with the sample found on the crime scene it is possible to tell the probability of a reciprocal match.
The actual problem, then, is not the intrinsic scientific reliability of a genetic analysis-produced evidence. The problem is the strength of the chain of custody (i.e. the possibility of tracking all the intermediary steps, from the crime scene to the Court.) It is evident that if during the journey some part of it is not verifiable, a possibility comes to arise a legitimate doubt that what came in Court might not be what has been found on the crime scene.
On this issue, Italian law n. 85/2009 that creates a local National DNA Database is very lazy. There is neither any explicit duty of guaranteing the chain of custody, nor a provision that prevent the use in Court of wrongly-handled biological samples.