The Department of Justice’s (DOJ) recently-issued final rule requiring the collection of DNA from hundreds of thousands of individuals in immigration detention is a dangerous and unprecedented expansion of biometric screening based not on alleged conduct, but instead on immigration status. This type of forcible DNA collection erodes civil liberties and demonstrates the government’s willingness to weaponize biometrics in order to surveil vulnerable communities.
DOJ finalized its October 2019 Notice of Proposed Rulemaking, making no amendments despite receiving over 40,000 public comments—including one by EFF—the overwhelming majority of which opposed the mandatory DNA collection proposal.
The final rule institutionalizes a practice that is a marked departure from prior DNA collection policies. It draws its authority from the DNA Fingerprint Act of 2005, which granted the Attorney General power to direct federal agencies to collect DNA from “individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States.” DOJ regulations implementing the Act specifically exempted the Department of Homeland Security (DHS) from collecting DNA from certain classes of non-U.S. persons, including individuals for whom collection is “not feasible because of operational exigencies or resource limitations,” as identified by the DHS Secretary in consultation with the Attorney General. In 2010, then-DHS Secretary Janet Napolitano used that provision to exclude from DNA collection individuals in immigration custody not charged with a crime and from individuals awaiting deportation proceedings.
In the final rule, DOJ removes the DHS Secretary’s authority to exclude certain classes of individuals from DNA collection because of resource limitations and only allows the Attorney General to make that determination. DOJ estimates that it will collect nearly 750,000 additional DNA profiles annually from immigrant detainees, which will then be added to the Combined DNA Index System (CODIS), the FBI’s national DNA database.
In January 2020, DHS began planning for this vast DNA collection program, releasing an implementation policy for Immigration and Customs and Enforcement (ICE) and Customs and Border Protection (CBP) titled “CBP and ICE DNA Collection.” The policy sets out a five-phase implementation plan over three years. Phase I, which began on January 6, 2020, outlines pilot programs at a Border Patrol sector in Detroit, Michigan, and a port of entry in Eagle Pass, Texas. A subset of CBP officers at these locations collect DNA from immigrants with criminal convictions and from immigrants and U.S. persons (defined as U.S. citizens and legal permanent residents) who are referred for prosecution, including children as young as 14 years old. Subsequent implementation phases permit more CBP officers to collect DNA until Phase V, which allows for DNA collection from all individuals detained under U.S. authority, including people in immigration detention who have never been arrested, charged, or convicted of any criminal offense.
In response to DHS’s implementation policy, U.S. Representatives Rashida Tlaib, Veronica Escobar, and Joaquin Castro sent a letter to the DHS Acting Secretary expressing opposition to the pilot programs. Mandatory DNA collection from immigrants constitutes a privacy invasion, criminalizes immigrant communities, and overburdens federal crime labs, they told DHS. The letter also asked for additional information on the implementation plan, including the privacy protections in place and the administrative burden and backlog the plan will create.
As we highlighted in our comments, DOJ's final rule marks an unprecedented shift from DNA collection based on a criminal arrest or conviction to DNA collection based on immigration status. After the Supreme Court’s decision in Maryland v. King (2013), which upheld a Maryland statute to collect DNA from individuals arrested for a violent felony offense, states have rapidly expanded DNA collection to encompass more and more offenses—even when DNA is not implicated in the nature of the offense. For example, in Virginia, the ACLU and other advocates fought against a bill that would have added obstruction of justice and shoplifting as offenses for which DNA could be collected. DOJ’s final rule further erodes civil liberties by requiring forcible DNA collection based on false assumptions linking crime to immigration status, despite ample evidence to the contrary.
This DNA collection has serious consequences. Studies have shown that increasing the number of profiles in DNA databases doesn’t solve more crimes. A 2010 RAND report instead stated that the ability of police to solve crimes using DNA is “more strongly related to the number of crime-scene samples than to the number of offender profiles in the database.” There’s no indication that adding nearly 750,000 profiles of immigrant detainees per year will do anything except add more noise to CODIS.
Moreover, inclusion in a DNA database increases the likelihood that an innocent person will be implicated in a crime. We previously wrote about a case where a man was charged with murder during a brutal home invasion because his DNA was found on the victim’s fingernails. In reality, he had been treated by EMTs earlier in the evening, who later responded to the crime scene and likely carried his DNA with them.
The final rule also allows CODIS to indefinitely retain DNA samples from people in immigration detention—even if they later permanently leave the country or adjust their status to become permanent residents or citizens. Indefinite retention creates the opportunity for future misuse, especially since DNA samples reveal ample information about us—from familial relationships to medical history—and may imply characteristics like race and ethnicity. Some have even suggested DNA can reveal intelligence and sexual orientation, although this has been disproved. We’ve seen DNA misuse in the context of genetic genealogy databases, where people voluntarily provide DNA to private companies for ancestry or health analysis, and law enforcement later accesses the database to solve crimes. In 2015, a New Orleans filmmaker was nearly implicated in a cold case murder after police accessed a private genealogy database without a warrant and identified an “exceptionally good match” between the crime scene sample and the filmmaker’s father’s DNA profile.
Lastly, the final rule exacerbates the existing racial disparities in our criminal justice system by subjecting communities of color to genetic surveillance. Black and Latino men are already overrepresented in DNA databases. Adding 750,000 profiles of immigrant detainees annually—who are almost entirely people of color, and the vast majority of whom are Latinx—will further skew the 18 million profiles already in CODIS.
The final rule is yet another example of the government weaponizing biometrics as a form of surveillance of vulnerable communities. This dangerous expansion of DNA collection brings us one step closer to genetic surveillance of the entire population.