The state legislative approaches to genetic privacy currently focus narrowly on genetic tests rather than genetic information that is generated in other ways.19 In addition, the practice and administration of medicine now increasingly take place on an interstate level, which makes state solutions to data protection increasingly unwieldy.

The weaknesses of these state solutions become even clearer when one considers the common law right of privacy. One branch of this interest has been found to prevent public disclosure of private records.20 Most courts have, however, found that such a claim requires widespread disclosure to the public, which will not occur in most cases involving the release of health information.21 Another restrictive element of the public disclosure tort is that most courts define disclosure as the release of information to someone without a "legitimate interest" in the information. Some courts have found employers to have a legitimate interest in their employees' health information.22

A second branch of the tort right of privacy prevents intentional intrusions on the private affairs or concerns of an individual.23 Such intrusion must be "highly offensive"; moreover, something in the nature of "prying or intrusion" must occur.24 Courts have failed to find that disclosure of sensitive health information by an employer to an individual's coworkers creates such an intrusion; the employee had, after all, "voluntarily" provided the information to her employer.25

State protection of health information is further limited by the federal Employee Retirement and Income Security Act (ERISA). This law preempts state regulation of companies that provide health care benefits

19  

Rothenberg, Karen H. 1995. "Genetic Information and Health Insurance: State Legislative Approaches," Journal of Law, Medicine, and Ethics 23(312):312-319.

20  

American Law Institute. 1976. Restatement (Second) of the Law of Torts, §652D.

21  

Porten v. University of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839, 841 (1976). For criticisms of the requirement of widespread publication, see Miller v. Motorola, 202 Ill. App. 3d 976, 560 N.E.2d 900, 902 (1990). See also Keeton, W. Page (ed.) 1984. Prosser and Keeton on the Law of Torts. West Publishing Company, St. Paul, Minn., §117 at 857-858.

22  

Keeton, W. Page (ed.) 1984. Prosser and Keeton on the Law of Torts. West Publishing Company, St. Paul, Minn., §117 at 857-858.

23  

American Law Institute. 1976. Restatement (Second) of the Law of Torts, §652B.

24  

Keeton, W. Page (ed.) 1984. Prosser and Keeton on the Law of Torts. West Publishing Company, St. Paul, Minn., §117 at 855.

25  

Miller v. Motorola, 202 Ill. App. 3d 976, 560 N.E.2d 900, 903 (1990). See Mares v. Conagra, 971 F.2d 492, 496-497 (10th Cir. 1992) (request of employer for worker to supply it with detailed medication information does not constitute a "substantial interference with her seclusion").



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