Daniel B. Vorhaus, Harvard Law School, J.D., editor of Genomics Law Report, and practicing attorney in North Carolina at Robinson, Bradshaw & Hinson, gives the following legal advice to Dr. Steven A. R. Murphy regarding possibility of using 23andMe in clinical practice. In the following quote, Dan Vorhaus advises Dr. Steven Murphy with “no ambiguity” that the 23andMe Terms of Service ”aren’t binding.”

@Andrew Evans is correct. Steve, the [23andMe] ToS aren’t binding on you. You do with the 23andMe data – and any other piece of information provided by one of your patients – what your professional judgment dictates. There’s no ambiguity there.

According to Dan Vorhaus, the 23andMe Terms of Service do not exclude its use for health ascertainment. He further implies that intended use for 23andMe service should be inferred from the contents of the test results themselves and not solely defined by the 23andMe Terms of Service.

There’s no ambiguity to me here, either. Here Dan Vorhaus has published what I consider to be written advice from a lawyer in his professional capacity to a medical doctor in response to a specific complaint regarding the legality of the application 23andMe service for use in health ascertainment or disease purposes in a clinical setting for medical application.

Further, while Dan Vorhaus did not state so explicitly, I have implied as a layperson from this comment thread that Dan Vorhaus publicly advises 23andMe users to share 23andMe results with medical doctors to communicate clinically useful information for intended possible medical application in a clinical application despite the 23andMe Terms of Service which state that the 23andMe service “cannot be used for health ascertainment or disease purposes.”

Dan Vorhaus has published that the 23andMe Terms of Service are not binding.

Maybe I’m mistaken —but I’m just a layperson. I don’t see any ambiguity regarding how lawyer Dan Vorhaus has advised doctors that 23andMe can be used in the provision of medical advice within the professional capacity of licensed medical practice. Despite that the 23andMe Terms of Service explicitly forbids this use, Dan Vorhaus advises that these terms in the 23andMe contract are not binding in a medical setting when the test results are provided by a patient to a medical doctor.

23andMe is an egregious attack on civil liberties and I have yet to read a compelling argument otherwise. Freedom with Terms of Service like 23andMe’s is not freedom at all.

Note: I do understand that a third party is not necessarily bound to the 23andMe Terms of Service when presented with unsolicited information derived from the 23andMe service. However, I also understand that this 23andMe legal strategy is unethical because it distorts the law with a bad faith contract intended to evade regulation at the expense of public health and in favor of arbitrary federal enforcement at the expense of independent medical institutions and professionals.

Reference: 23andMe Terms of Service

3. Description of What the Services Are and Are Not: 23andMe Service Is For Research and Educational Use Only. We Do Not Provide Medical Advice, And The Services Cannot Be Used For Health Ascertainment or Disease Purposes