At Wednesday's Senate Judiciary Committee hearing, Sen. Dick Durbin (D-IL) questioned 23andMe Interim CEO Joseph Selsavage about data privacy.
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00:00with a policy to protect its consumers, but there's little to guarantee that the next
00:06buyer or the one after that won't abuse that policy, is there?
00:11Senator, a ranking member, 23andMe has required as part of the sale of the assets of the company
00:18that any buyer of the company must comply and adopt the policy policy and consents
00:25that 23andMe have in place today.
00:28So, I didn't think I'd ever say this in this room, but does the rule against perpetuities apply?
00:40Congressman, can you clarify that for me?
00:44I wish I... I've tried to forget every aspect of that course in law school,
00:49but what I'm suggesting to you is two or three buyers removed, your best intentions don't mean much, do they?
00:58Senator and ranking member, you know, my understanding is that, you know, 23andMe is doing everything we can
01:06to ensure that the next buyer adopts the policies and consents of 23andMe.
01:11and, you know, while I can't actually testify to their future intentions, both are, you know, American institutions
01:21with experience in genomics and, you know, are committed to protecting that data and continuing...
01:26Unless we have a federal law relative to this issue that applies to future transactions, your best intentions don't mean much, as far as I'm concerned.
01:37And don't take it personally.
01:39So, Professor Cohen, there was a best-selling book a few years ago called The Immortal Life of Henrietta Lacks.
01:45Fascinating book.
01:47Story of an African-American woman who died in 1951 of cervical cancer in Baltimore, if I'm not mistaken.
01:54A sample of her tumor generated what is known as the HeLa cell line.
01:59That cell line was mass-produced and sold to laboratories all over the world.
02:04It's been used in scientific research, including research into cancer, the human genome, and the development of the polio vaccine.
02:11It is still being used today.
02:13Famously, Henrietta Lacks never consented to the use of her cells in this way.
02:19And despite the vast sums of money the cell line has generated, her family's never seen a dime of profits.
02:25Part of what's being sold by 23andMe is a collection of biological samples submitted by consumers who wanted their DNA examined.
02:33They may have consented to some use of their samples, but I question how informed it actually was.
02:39And there's no guarantee a new owner won't change how the samples are used.
02:44Are you familiar with this story?
02:46I am, Senator.
02:47Is there anything we can learn from it in this application?
02:50I think to learn for the importance of affirmative consent.
02:53And again, affirmative consent that can explain as much as possible what you want to do with material.
02:58And again, we still haven't inherited an answer why at this stage they're not going back to all of their customers and asking,
03:03can you consent to the transfer of your data to this new buyer?
03:06It's a very simple thing that the company could do.
03:08Why aren't they doing it?
03:10Mr. Sel Savage, why aren't you doing it?
03:13Senator 23andMe believes we've obtained the consent from our customers.
03:18And when the customer signed up to the service, they have agreed and affirmatively to consent to our privacy in terms of service,
03:27which specifically says that we, in the event of a bankruptcy sale, that we can actually transfer their data.
03:35I think what Professor Cohen is suggesting is that there's more that could be done to protect your consumers.
03:42Why don't, would you consider it?
03:44I can take that suggestion back to our team, Senator.
03:48I hope you will.
03:49Professor Gottberg, I guess my conclusion from your testimony was that bankruptcy code really didn't envision what we're talking about here.
03:57So the bankruptcy code treats, it respects law that exists outside of bankruptcy just the same in bankruptcy proceedings as outside.
04:07So any legal prohibitions that apply outside bankruptcy also apply inside bankruptcy.
04:12So in a way, the bankruptcy code did anticipate that.
04:15It just doesn't introduce new substantive law when a company files for bankruptcy.
04:19There's not new prohibitions that exist.
04:22But what you say is, in your testimony, current bankruptcy law provides some oversight that can prevent the worst privacy policy abuses in bankruptcy sale,
04:32but it does not prohibit the sale from taking place.
04:35Placing a prohibition on bankruptcy sales would simply push them outside bankruptcy proceedings where there are fewer protections.
04:43The best policy would make any restrictions on the sale of personal consumer data universally applicable.
04:49It's time for us to legislate, isn't it?
04:51I would say if you want to protect consumers from having their personal consumer data bought and sold, you need to do that.
04:57Amen.
04:58Thank you, Mr. Chairman.
05:00Senator Durbin, we've seen history made today because in your long and distinguished career in the United States Senate,
05:10I know you've been waiting to use the phrase rule against perpetuities in a question.
05:15So congratulations for that.
05:18Senator Blackburn.
05:20Thank you, Mr. Chairman.
05:25Mr. Self-Salvage, I want to ask you, let me say this.
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