Immigrant DNA Collection And The Fear Of ‘Population Surveillance’
Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.
On Monday, the federal government “launched a pilot program to collect DNA from people in immigration custody and submit it to the FBI, with plans to expand nationwide,” reported the Associated Press. Eventually, the administration intends to expand the program to collect DNA samples from people in both U.S. Customs and Border Protection and ICE custody. The samples will be forwarded to the FBI for analysis and then added to the Combined DNA Index System, or CODIS, database. As NPR reported in October, when the Attorney General first issued the proposed rule, the expectation was that “federal authorities will gather DNA information on about 748,000 immigrants annually, including asylum-seekers presenting themselves at legal ports of entries.”
The program expands on another pilot program started last year, in which ICE agents use rapid DNA tests on children and adults at the border to determine whether adults were the family members of the children with whom they were traveling. Unlike the rapid DNA test results, however, the New York Times reported in October, “the new program would … provide a comprehensive DNA profile of individuals who are tested, as opposed to the more narrow test that was used only to determine parentage. And unlike the testing under the pilot program, the results would be shared with other law enforcement agencies.”
Under the terms of the first phase of the program that launched this week, Customs and Border Protection officials will collect DNA samples from people detained by the Border Patrol in two locations—at the Canadian border in or near Detroit and “at the official port of entry at Eagle Pass, Texas, across from Piedras Negras, Mexico.” The pilot program is supposed to last 90 days. “In Detroit,” AP reported, “people as young as 14 will be subject to DNA collection.” People who refuse to consent to having their DNA samples taken could face federal misdemeanor charges.
The administration has described this move as a step toward compliance with a 2005 federal law. Yet, as Felipe De La Hoz and Gaby Del Valle of the newsletter Border/Lines explained in October, when the administration published the proposed rule, “like much in immigration policy, the mechanism here is a bit more complicated than the administration merely issuing a directive. Essentially, the rule would let the attorney general reverse existing government policy by eliminating an exception to a federal regulation.”
As they point out, while the new policy is a significant escalation in DNA collection, it also builds on previous legislation that paved the way for widening surveillance. “Like other Trump immigration policies, the new DNA rule is built on decades of bipartisan legislation. If it went into effect and the exemptions were not maintained by the attorney general, the new rule would severely increase the scope of the federal government’s surveillance of non-citizens—but the infrastructure needed for such a sweeping change to happen has been built up since the Clinton era.”
Immigration advocates have also warned that the DNA collection of detained immigrants is just another step in the continued expansion of collection. Three advocates wrote in the Daily News in October: “Under the proposed policy, U.S. Customs and Border Patrol officers, who have no training or experience with DNA collection, would collect samples, then input an estimated 748,000 new profiles every year into the FBI’s national database. This database, known as the Combined DNA Index System, was born to identify convicted sex offenders and serial violent crimes. The list has problematically been expanded to include those who have only been arrested and never convicted of any crime, a daily reality for many people of color subject to racial profiling and overpolicing. Now, this policy goes even a step forward to include those discretionarily detained by the U.S. government, including those encountered at the U.S. border, who include many asylum seekers who have committed no crimes other than immigration violations.”
Furthermore, an enormous database of DNA samples could pave the way for increasingly exclusionary anti-immigrant policies, the advocates noted. “Less than two weeks ago, DHS [the Department of Homeland Security] announced that it expects to have face, fingerprints and iris scans of at least 259 million people in its biometrics database by 2022. This would cover nearly 80% of the population of the United States. This expansion of biometrics in and of itself allows the government vast investigatory and identification resources over those crossing the U.S. border. Why then is DNA needed?”
They note that DNA can indicate “familial relations, ancestry and health predisposition,” including predisposition for thousands of diseases. “Given the Trump administration’s efforts to exclude intending immigrants deemed unhealthy and weak,” they write, “it seems natural that the government could use this data to deny admission to an otherwise eligible individual who may have a genetic propensity towards certain illnesses. In practice, this may mean an aspiring American is one day denied permanent residence because of predisposition towards an illness revealed by a forcible DNA test, a predisposition of which they may themselves not be aware, even if they are in perfect health.”
Vera Eidelman, of the American Civil Liberties Union, told the New York Times in October that the proposed program transforms DNA collection from a tool for criminal investigations to one of “population surveillance,” something “basically contrary to our basic notions of a free, trusting, autonomous society.” And it implicates both those whose DNA is collected and their family members.
One former deputy general counsel with the Department of Homeland Security told BuzzFeed in August that the widespread collection of DNA samples represented a huge shift “in that DNA testing of this type is used only in a pure criminal context.” He continued: “DNA testing is considered one of the more invasive actions that the government can take. You are obtaining a physical substance from a person’s body, with the potential to learn an almost infinite amount of information about the person.”