DHS Announces Plan to Collect DNA of Immigrants During Border Searches

Posted on February 15, 2020

According to a piece published last month by The Verge, the Department of Homeland Security (DHS) is moving forward with a plan to collect DNA samples from individuals detained by Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). Earlier this month, DHS released more concrete details on the new policy, which it initially loosely outlined in October, indicating that it will equip CBP and agents of ICE’s Enforcement and Removal Operations (ERO) division with FBI-issued cheek swabbing kits. DNA collected from persons detained by CBP or ICE-ERO, regardless of citizenship status, will then subsequently be submitted to the FBI’s Combined DNA Index System National DNA Index System, known internally as CODIS/NDIS.

These new procedural details come from a “Privacy Impact Assessment” dated January 3, 2020. and enumerate how DNA collection by the two DHS agencies will develop in incremental phases. Specifically, the document construes the collection procedures it proposes as an overdue effort to comply with 34 US Code § 40702.

While a privacy review in this instance this may be perfunctory to facilitate a policy change, it is surprisingly candid at times. For instance, it concedes that “There is a risk of overcollection of information, particularly from young children, who could not have committed any crimes for which to match against,” and notes that “This risk is unmitigated.” The document does stipulate that individuals under the age of 14 will not, as a rule, be subjected to the policy, but it does not categorically prohibit this.

A fair amount of context ought to be supplied to realistically estimate the impact that this policy change will have. First, on account of the participation of ICE-ERO in this program, and in light of that agency’s aggressive operation within the interior of the country under the Trump administration, this means that DNA collection by federal law enforcement will not be isolated to border areas (which, as CCDBR has noted previously, has notoriously circumvented traditional civil liberties protections). Rather, ICE-ERO will in some cases collect DNA from individuals apprehended on the streets of American cities far from any international border or port of entry.

Second, as the reporting in The Verge shrewdly notes, because most individuals detained by CBP and ICE are non-white, the measure threatens to over-represent racial minorities in the CODIS/NDIS database which, it should be reiterated, is maintained by the FBI, which primarily operates as a domestic law enforcement body. And since a disproportionately high number of non-white people will be represented in the database, this will cause a greater proportion of crimes committed by non-white persons to be solved, artificially inflating the measured rate of criminality for non-white people as a group.

Third, beyond any implications for deepening the racial bias in policing, this initiative can also be seen as the continuation of a steady march toward ubiquitous collection of DNA for all persons residing in the US, as the article in The Verge also touches on. A ruling by the Supreme Court in 2013 authorizes law enforcement agencies at all levels to take DNA samples from arrestees, even those who are never subsequently charged with a crime. Some police departments have even resorted to directing unlikely suspects to submit DNA samples to rule themselves out as perpetrators, and thereby reduce the field of likely suspects.

Taken together, an expansion of DNA collection from potentially innocent individuals by law enforcement, especially that which operates at the federal level, should unsettle anyone who holds civil liberties dear.

You can read the original piece from The Verge here.