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JERRY BLANK: A TRIBUTE by Michael L. Crowley

JERRY BLANK: A TRIBUTE

They called themselves the Equality 9. Young political activists conducted a sit-in at the county administration building demanding equality in marriage and were charged criminally. The office of the late, great Jerry Blank assembled the defendants and volunteer attorneys to discuss a strategy. Each attorney discussed why they were there. When it was my turn, I said simply, “when Jerry Blank has decided a fight is worthwhile and asks for my help, I respond.”

That was the life Jerry Blank lived as the consummate righter of wrongs. The “leave no stone unturned” mentality of criminal defense was Jerry’s motto. The notion of an unpopular and sometimes uncomfortable argument would never slow Jerry down.

After voir dire in the Equality 9 trial, Jerry passionately argued that the city attorney’s striking of two admittedly gay potential jurors violated Batson/Wheeler. (At the time we weren’t even sure LGBTQ was a protected class.) Jerry discussed the injustice and the constitutional violation, and added the public was watching this trial and will judge us by how it is carried out. Judge Joan Weber declared a mistrial, and the case eventually settled amicably.

Some old-timers remember Jerry as the attorney who dressed up like Carmen Miranda, fruit topping and all (Google it) at the annual “Hanger Party.” This was put on with flying partner, Jim Pokorny, a great time for all who attended including the plethora of kids many of us had at the time.1 Jerry was an avid pilot, bragging about his heated hangar at Mammoth when there were feet of snow on the ground. He was a member of the Baja Bush Pilots, flying south of the border whenever he could.

For years Jerry chaired the defender’s board and often emceed the annual dinner. Always profuse in his praise of

By Michael L. Crowley

others, one year I ended up on the front page of the LA Daily Journal as the new president of the Criminal Defense Bar Association. Jerry blew it up on the PowerPoint for his dinner presentation and made my daughter Emily and me stand up before those assembled, much to Emily’s chagrin. Jerry quoted from the story that I said my forehead had been flattened by beating my head against the wall as a criminal defense attorney and now I was giving my first-born child to the cause. Jerry’s approval was authentic and appreciated.

Jerry was generous. My whole family spent time with Jerry and Mary, his long-time companion and former pianist for the San Diego Symphony. He made his condo at Mammoth available to us. Jerry was not easy to keep up with on the slopes.

The end of Jerry’s life, from what I know, was a series of mishaps. He understood the dire prognosis. Determined not to become an invalid, Jerry attempted to take his own life twice and only in the end, was granted a hopefully peaceful passing under California’s End of Life Option Act. During that time, Jerry sent a cryptic email about taking his own life to some friends. A close friend was alarmed enough to call the authorities. When the cops arrived at Jerry and Mary’s La Jolla house, Jerry refused them entry. Jerry yelled, “if you don’t have a warrant, you’re not coming in.” True to the end. I am going to miss that guy.

Michael L. Crowley (mlcrowley@crowleylawgroup. com) is a criminal law specialist and a former editor of Dicta magazine, the predecessor of San Diego Lawyer.

Footnote

1. For those interested, send me an email and I will send you Pokorny’s history of the Hanger Party.

KEEPING YOUR GENOME TO YOURSELF PRIVACY LAWS AND CONSUMER GENETIC TESTING

Agenetic revolution has transformed a very expensive process available to scientists into a relatively inexpensive product sold to everyone. However, as collected genetic data increases, so do concerns about its unauthorized disclosure and use.

Privacy Laws

Early genetic privacy laws focused on health insurance discrimination. Some states passed such laws as early as the 1970s and California did so in 2011. The federal Genetic Information Nondiscrimination Act (GINA) was enacted in 2008, prohibiting genetic discrimination in employment and health insurance (for asymptomatic individuals). The Affordable Care Act went further and prohibited all attention in 2018 with the capture of the so-called

health-based discrimination in health insurance.

Genetic data in health care is subject to the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA). However, the Privacy Rule only applies to HIPAAcovered entities: healthcare providers, health plans, health clearinghouses, and business associates of these entities. Under GINA, genetic information is deemed to be “health information” subject to the Privacy Rule even when not clinically significant. Covered entities are required to provide a notice of their privacy practices, including uses and disclosures of protected health information. As more genetic information becomes available, privacy

Several states have enacted specific genetic privacy laws, but they vary widely, with some requiring informed consent for testing, regulating access to data, or providing that genetic information is the individual’s property. In California, the Confidentiality of Medical Information Act prohibits insurers from disclosing individually identifiable health information, which specifically includes genetic history. The California Genetic Information Nondiscrimination Act (CalGINA) expands on GINA to also prohibit genetic discrimination in housing, mortgage lending, education, Privacy in California

and public accommodations.

also applies to genetic testing companies and gives consumers a right to know how their information is used and shared, request that it be deleted, and opt-out of sale to third parties.

Direct-To-Consumer (DTC) Genetic Testing Services Are Excluded from

DTC genetic testing is increasingly popular for claimed insights into health and ancestry, among other topics. Even as more people use services like 23andMe, Ancestry, and more than 90 others, DTC providers remain lightly regulated. HIPAA generally does not apply, and the Food and Drug Administration (FDA) has only asserted authority to regulate health-related testing disclosures.

The privacy implications of genetic data gained wide Golden State Killer, who had committed a series of rapes and murders 40 years earlier. The suspect, who pleaded guilty earlier this year, was identified through familial DNA search. Using GEDmatch, a public genetic database where users upload test results to research their family trees, officers matched crime scene DNA with the suspect’s distant relative. A traditional investigation followed to narrow in on the suspect. The same technique has helped identify almost 100 suspects and many victims.

repercussions only increase. In a 2018 study, researchers concluded that once GEDmatch included just 2% of Americans (from an estimated 0.5% at the time), more than 90% of Americans of European descent would be identifiable. Although several states have explored, and the U.S. Department of Justice (DOJ) released an interim policy regulating law enforcement use of forensic genetic genealogy, other users are primarily only regulated by the service’s own policies.

Efforts to Regulate Genetic The California Consumer Privacy Act of 2018 (CCPA)

In 2013, broad genetic privacy legislation was considered by the California legislature but did not pass. Scientists in

particular expressed concern that its consent requirement would hinder research. For example, under the legislation, genetic information collected to discover genes associated with a particular disease could not be reused for research related to other diseases.

This year, California considered a narrower regulation specific to DTC genetic testing companies and any genetic data collected or derived from such services. Although passed by the Legislature, the proposed Genetic Information Privacy Act (GIPA) was vetoed by the Governor over concerns that the bill’s opt-in provisions would interfere with mandatory reporting requirements related to COVID-19 testing. Governor Newsom expressed support for strong genetic privacy rights and directed state health agencies to work with the Legislature to develop new legislation that addresses his concerns. The GIPA would have required notice about the DTC company’s privacy practices, including use, disclosure, security, and whether deidentified genetic data would also be disclosed. It would have required user consent not only for collection, use, and disclosure of data but also for the purpose of such activity. Each use beyond that initial purpose would have required separate consent. Finally, it would have imposed criminal and civil liability, depending on the violation.

The Path Forward Is Uncertain

Although Gregor Mendel, a 19th century monk, is now known as the father of genetics, his research was virtually ignored when first published and not fully appreciated until rediscovered almost 40 years later. In the same way, it may take time to fully understand the implications of accumulated genetic data and decide on appropriate policy responses.

Devinder S. Hans (devinderh@gmail.com) is an attorney at law.

ANONYMIZED DATA IS NOT SO ANONYMOUS

Privacy laws, such as the HIPAA Privacy Rule, the California Consumer Privacy Act (CCPA), and the European General Data Protection Regulation (GDPR), exempt anonymized or de-identified data from their regulations. Privacy concerns only exist if personal identifiers, such as a name or Social Security number, link the data to an individual. Anonymization involves removing that link such that an individual cannot be reassociated with the data. Techniques include masking (removing the personal identifiers), classification (replacing personal identifiers with a category title), data generalization (e.g., replacing city names with the county or state), noise addition (replacing certain attributes with random values), permutation (swapping values between records), and several others.

Unfortunately, anonymized data does not always stay that way when combined with other publicly available information. In 2019, researchers described a method that they claimed could reidentify 99.98% of Americans in any dataset using 15 demographic attributes (such as age and gender). Working with anonymized data containing location stamps, other researchers were able to identify 17% of the individuals with one week of data and 55% with one month of data. Another researcher showed that he could identify a randomly selected person based solely on their anonymous DNA, age, and state of residence.

There are no easy solutions and some geneticists have even recommended informing anyone providing genetic information that a loss of privacy is likely.

Be a Part of 220 West Broadway’s History

The SDCBA wants your stories about life and times at the vanishing old courthouse at 220 West Broadway. Please submit your stories to the San Diego County Bar Association at edmcintyre@ethicsguru.law and hjohnson@sdcba.org.