The 'Devious Defecator' and the New Frontiers of Privacy

How a series of misplaced bowel movements helped clarify privacy in the 21st century.
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How a series of misplaced bowel movements helped clarify privacy in the 21st century.
(Photo: Image Point Fr/Shutterstock)

(Photo: Image Point Fr/Shutterstock)

While citizens of the Internet fret about the decaying privacy of their personal data, a landmark court case has established muscular protections over a far more personal data set—to wit, your DNA. A judge in Atlanta has ruled that your company has no right to test your genetic material, and a jury subsequently levied heavy damages: over two million dollars. The decision is not merely a fascinating case study in the relationship between technology and privacy; it’s also a powerful precedent that will make it almost impossible for companies to mandate DNA swabs.

If you’re not already familiar: Atlas Logistics Group Retail Services, based in Atlanta, Georgia, oversees storage and shipping for various grocery chains. These days, the company is better known as home to the #deviousdefecator, an employee who spent much of 2012 “habitually defecating in one of its warehouses,” to quote Amy Totenberg, a federal district judge in Atlanta and member of an impressive American family. (Totenberg also coined “Devious Defecator.” She’s been having a lot of fun with the case.)

Hoping to foil the saboteur, Atlas decided to run DNA swabs on employees, seeking a match with the stool samples. Their prime suspects were Jack Lowe and Dennis Reynolds, two warehouse employees who submitted to tests when the company told them their jobs were in peril.

"It's really another frontier in terms of privacy. We didn’t know where the boundary was; now we have a better idea."

And here is where the company overstepped its bounds—specifically by violating the Genetic Information Nondiscrimination Act, which passed Congress in 2008. GINA protects individuals’ medical history and genetic material from both employers and insurers, so that no one will be denied health coverage for genetic predispositions, and so that employers can’t collect (let alone examine) their workers’ DNA.

According to the motion for summary judgment submitted by plaintiffs Lowe and Reynolds, Atlas contacted Speckin Labs of Michigan to seek DNA evidence that would be admissible in court. Speckin “assured [Atlas] that Speckin Labs regularly completed body fluid and fecal DNA testing that was admissible for prosecution and could assist Atlas in the investigation.” In other words, Speckin thought they could help identify the defecator.

Speckin’s representatives completed their swabs on Lowe and Reynolds but did not release the results to either man; the two continued about their business in the warehouse with the distinct feeling that co-workers had lost all respect for them. “They continued to be mocked in the workplace,” says professor Paul Lombardo, a historian of law and bioethics who appeared as an expert witness at the jury trial.

Meanwhile, the DNA tests had cleared both men, a fact they learned not from their supervisor but rather through the rumor mill. Finally, Lowe and Reynolds sued, and, last month, Judge Totenberg ruled in their favor. The judge found that Atlas had violated GINA and pointed to paragraph 42 U.S.C. § 2000ff-1(b): “[it is] an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee.”

As of Monday, when the jury trial ended, Atlas was out $2.2 million in damages and punitive fines.

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GINA was established in response to a long and troubling history of genetic discrimination in the United States. Lombardo took the stand to explain this history to the jury.

“We only pass laws like this because of the history of discrimination in this country,” Lombardo says in a phone interview, in which he discusses America’s “dangerous history with heredity.

Lombardo told the jury about GINA, the eugenics movement, and forced sterilization, as well as laws from the 1970s that forced blacks to submit to sickle-cell testing.

“There was a degree of understandable fear, where patients weren’t willing to submit to medical testing because they were afraid of who might see their results,” Lombardo says. “That information used to be held over minorities’ heads.”

Proper protections were needed. That’s where GINA came in. But not even the members of Congress who passed the law knew precisely how it would work—one reason the Totenberg ruling carries so much weight.

“When GINA passed, lawyers and lawmakers didn’t know what would happen with it, how it would be used,” Lombardo says. “Some people were dismissive. This is the very first case that says quite clearly what the law means in this scenario. And the most fascinating thing is that it’s really another frontier in terms of privacy. We didn’t know where the boundary was; now we have a better idea.”

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