January 7, 2020
The Trump administration has launched a pilot programs at Eagle Pass, TX and in Detroit to begin DNA collections of immigrants held in custody. As we wrote in October when the rule was announced, what the new rule does is remove a provision of current law, The DNA Fingerprint Act of 2005, that allowed the Department of Homeland Security to waive requirements to collect DNA samples from certain classes of immigrants. Only the Attorney General can waive collection now. What this means is that virtually anyone detained by the U.S. government will be subject to DNA screening. From CBS News:
Border Patrol officers in the Detroit sector of the border with Canada and Customs and Border Protection (CBP) personnel at the Eagle Pass, Texas port of entry along the U.S.-Mexico frontier have been instructed to collect DNA from certain migrants. The samples are from cheek swabs. The biometric information would be used to create profiles in a massive national criminal database run by the FBI.
The move is the first phase of a five-part, three year Department of Homeland Security initiative to obtain DNA profiles from virtually all migrants in U.S. custody, whether or not they've committed crimes.
In theory, people have to agree to the DNA swabs, but the context in which the tests are being done compromises any credible claim to consent. Stephen Kang of the ACLU notes, "You're keeping people in custody and then saying to them, 'We need to collect DNA sampling from you.' And they're in no position to refuse to consent to that because they are in a custodial situation.”
Further, the CBS report cites a Department of Homeland Security official’s privacy assessment, “that those who refuse to consent to the new DNA collection efforts could be referred for criminal prosecution.”
The officials also recognized in the assessment several risks that have been raised by advocates, including the possibility that migrants won't know they have to consent to have their DNA collected or that some detainees, particularly children, could be unaware that the information will be sent to the FBI "in perpetuity." These risks, the official added, could be "partially" mitigated by posting notices in ICE facilities and by CBP officers providing "verbal notice."
The point of the program is still murky. In theory the collections are to support “law enforcement” but the way the system works does not really support this motive:
In the privacy impact assessment dated January 3, Homeland Security officials said the biometric information collected through the program could be used for law enforcement purposes and to generate investigative leads. But they conceded it's "unlikely" that U.S. immigration authorities will be able to use the data for "public safety or investigative purposes" before the migrants are transferred to different agencies, released into the interior of the country or deported.
The ACLU noted in its comment on the plan, “that there is no evidence that the plan will help solve crime. Rather, the plan seeks to miscast the hundreds of thousands of individuals in immigration detention as violent criminals and will exacerbate harms to people and communities of color.”
Any effort by the government to streamline the mass collection of biometric data like this is suspect. As advocates noted, this is the kind of program, if shown to be “cost effective,” that could easily be generalized to citizens pressured to give DNA samples if detained by law enforcement for any reason.
Absent a meaningful investigative justification, the whole point seems to be adding another layer of persecution and humiliation that treats migrants as criminals first. As Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, writes, “This unjustifiable step towards full population surveillance threatens to subvert our foundational values of freedom, autonomy, and presumed innocence…Under this dehumanizing plan, immigrants who already have no control over their movements, their health, or their futures would also lose control over their genetic blueprints. The administration should heed the calls of the thousands of people demanding it abandon this dangerous and xenophobic plan."