This is the first attempt to collect DNA of individuals who are detained but not charged with a crime.
On January 3, Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) released a Privacy Impact Assessment detailing plans to collect DNA from individuals temporarily detained at border crossings.
Border Patrol launched the 90 day pilot program on Monday at the Canadian border near Detroit and at the official port of entry at Eagle Pass, Texas. After the pilot period the program will be expanded nationwide.
According to the Privacy Impact Assessment, the Federal Bureau of Investigations (FBI) Laboratory provides DNA collection kits which allow authorities to take a cheek swab and send the DNA samples to the FBI. CBP and ICE have already had the legal authority to collect DNA from detained persons since the passage of the DNA Fingerprint Act of 2005. However, while previous efforts to collect DNA have focused exclusively on foreign citizens, this is the first attempt to collect DNA of individuals who are detained but not charged with a crime.
The Assessment states:
“Effective January 6, 2020, CBP will begin collecting DNA from any person in CBP custody who is subject to fingerprinting. This will include aliens as well as United States citizens and Lawful Permanent Residents (U.S. Persons). As with all other DNA samples that federal law enforcement agencies collect under the authority of the DNA Fingerprint Act, CBP will send DNA samples from its DNA population13 to the FBI, which will enter results into CODIS.
The authorized method of DNA sample collection from non-convicts in federal custody, such as those detained for some administrative immigration violations, is by buccal (cheek) swab. Using DNA sample kits provided by the FBI, CBP agents and officers will collect a DNA sample by taking a cheek swab from every individual within scope of the new regulation and submit the DNA samples to the FBI for processing and entry in the CODIS (Combined DNA Index System) system.”
The assessment clearly outlines the groups who will be affected by the DNA collection program once fully implemented. This includes criminal arrestees—including U.S. citizens, lawful permanent residents, and aliens—all non-U.S. Persons detained for processing under administrative proceedings and released on their own recognizance; all non-U.S. Persons who are detained for processing under administrative proceedings and voluntary withdraw application; all non-U.S. Persons subject to expedited removal, reinstatement of removal, or administrative removal; and all voluntary returns.
Stephen Kang, an attorney for the American Civil Liberties Union, told the New York Times that the new DNA collection procedures “raises a lot of very serious, practical concerns, I think, and real questions about coercion.”
The assessment pays lip service to examining privacy risks but offers no real solutions. The federal agencies’ main concerns seem to be that people are not aware they have no choice when it comes to handing over their DNA. For example, the DHS worries that “individuals in federal custody will not be aware they must provide a DNA sample to law enforcement officers.” In fact, another privacy risk plainly states that “DNA collection requires no consent and is not voluntary.”
The section titled “Mitigation” states:
“This risk cannot be mitigated. If individuals refuse to provide a DNA sample (i.e., are not compliant), then DHS may pursue criminal prosecution. The statute mandating DNA sample collection specifically states that an individual subject to DNA-sample collection who fails to cooperate in the collection of that sample may be guilty of a class A misdemeanor.”
Another section titled “Privacy Risk” notes that “individuals whose DNA sample is collected while the individuals are children will not be aware that their DNA profile will remain on file with FBI in perpetuity.” It is this collection and storage of DNA “in perpetuity” which sparked backlash from the Electronic Privacy Information Center (EPIC) and a coalition of civil liberties and immigrant rights organizations.
The organizations first opposed a rule change that expanded the DNA collection abilities of CBP and ICE. The coalition called the rule “unacceptable and unnecessary privacy intrusion” that will have a dangerous impact on the individual being detained but also their family members. In an amicus brief to the Supreme Court, EPIC argued that law enforcement’s warrantless collection of DNA is unconstitutional.
The DNA collection plans come after the October 2019 announcement from the Department of Justice (DOJ) detailing their plans to mandate DNA collection almost all immigrants who cross the border and are held temporarily. Unlike the DHS assessment, the DOJ announcement did not apply to permanent residents or those legally entering the United States.
The consideration of DNA collection is one that has long been discussed by the Trump administration and supporters of his vision of building a wall between the United States and Mexico. The Border Security for America Act—one of several bills considered in relation to Trump’s desire to build a wall—would require new biometric systems to be up and running at the nation’s 15 busiest airports, seaports, and land ports within two years. After five years all land and sea ports of entry would require biometric systems to be running.
Some of the most worrisome portions of the bill include biometric scanning of all people who exit the United States, both citizens, and foreigners. In addition, the text of the bill calls for DNA collection of “any individual filing an application, petition, or other request for immigration benefit or status.”
Of course, the use of DNA collection and profiling has long been the domain of the U.S. government. Back in 2015, under the Obama administration, the Electronic Frontier Foundation (EFF) sued the Department of Justice and the Federal Bureau of Investigations for failing to provide documents related to the Rapid DNA system. The FBI said they found no responsive records to Freedom of Information Act requests made by the EFF.
Rapid DNA analyzers are machines designed to allow processing of a DNA sample in as little as 50 minutes. The machines are portable and roughly about the same size as a laser printer. This means that law enforcement using Rapid DNA can collect a DNA sample from a suspect, and match the profile against a database without the help of a scientist in an accredited lab. The EFF stated this would lead to further invasions of privacy.