The U.S. Government’s Mass Collection of Immigrant DNA Hints at Surveillance Future

The genetic data will be added to an FBI database for violent criminals

Asylum-seekers wait on the international bridge from Mexico to the United States. Photo: John Moore/Getty Images

This week, the United States government will begin collecting DNA samples from thousands of people detained by immigration officials, including minors, and will add that genetic data to a massive FBI database used to investigate violent crimes, according to the Department of Homeland Security.

First proposed by the Trump administration in October as a way to enforce immigration laws, the effort represents a major expansion of DNA collection in the United States. In 2018, DHS submitted nearly 7,000 DNA samples to the FBI. Under the new program, it expects to hand over an additional 748,000 samples annually. Anyone who is subject to fingerprinting — including U.S. citizens, green card holders, and those held temporarily — could be forced to submit a cheek-swab sample, according to a privacy impact assessment posted Monday by the DHS.

Privacy experts and human rights advocates say that this creates privacy risks for detainees and their families and raises concerns that genetic information could be misused, including for surveillance purposes.

“This really is an unprecedented shift from collecting DNA from people who have been accused of certain types of conduct to those who have a certain type of status,” says Saira Hussain, staff attorney at the Electronic Frontier Foundation, a nonprofit digital rights group based in San Francisco.

The new program is the latest to broaden the amount of biometric data the government is gathering on immigrants, migrants, and asylum-seekers. Last year, U.S. Immigration and Customs Enforcement deployed rapid DNA testing of children and their parents along the southern border to crack down on child smuggling and “fake families.” The new program clears a path for DNA collection not just for violent crimes but for less serious ones as well. Currently, DNA is collected in all 50 states for certain felonies, like sexual assaults and homicides, but illegal entry into the U.S. for the first time is a misdemeanor offense. A few states, including New York and Virginia, have moved toward collecting DNA for other misdemeanors. The new DHS program may encourage other states to follow suit.

“Since it’s become faster, cheaper, and easier to collect and profile DNA, we’ve seen that many jurisdictions have moved toward weakening the reasons for collecting it,” Hussain says. One proposal in Virginia sought to expand DNA collection for petty crimes like trespassing and shoplifting.

A law passed by Congress in 2005 authorized the collection of DNA samples from people arrested or detained under federal authority. An exemption to protect immigrants in U.S. custody has been in place since then, but in August 2019, an independent federal investigative agency called the U.S Office of Special Counsel said in a statement that U.S. Customs and Border Protection (CBP) “has evaded this law over the last decade,” citing a whistleblower complaint.

According to the new DHS memo, DNA collection at the border will be rolled out in several phases over the next three years. In the first phase, CBP in the Detroit area near Canada and at a port of entry in Southwest Texas near the Mexican border will start swabbing migrants as young as 14 who have been arrested for or accused of a crime. It will eventually scale up to every border patrol sector and port of entry and could include anyone detained by the U.S. government.

Individuals who refuse to submit a DNA sample can be charged with a misdemeanor. The few exemptions to DNA collection include people being processed for lawful admission into the United States, individuals with mental impairments, and people being transported for medical reasons.

Now, many questions remain about what the government can do with the data collected from migrants and how it could be used in the future.

Under the new regulatory change, border agents will mail DNA samples to the FBI, which will in turn process and analyze the DNA in its lab. That DNA will then be entered into a national database called the Combined DNA Index System, or CODIS, which contains the genetic profiles of about 18 million convicted felons and people who have been arrested for major crimes. The database allows law enforcement to compare DNA samples collected from suspects or crime scenes to DNA from known criminals in order to help identify perpetrators. CODIS is also used to help find missing or unidentified individuals.

Just because someone’s DNA is found at the scene of a crime does not mean that person is the perpetrator.

In its privacy impact assessment, the DHS said that it’s unlikely that DNA profile matching these individuals could be used for public safety or investigative purposes because by the time it takes the FBI lab to process a DNA sample and run it through CODIS, the individual in question may no longer be in U.S. custody.

However, there’s no indication that people whose DNA is collected under the new program, including children between the ages of 14 and 18, will be able to remove themselves from the database. Under normal circumstances, U.S. citizens arrested for felonies can have their DNA records expunged from CODIS if they are acquitted or if the charges are never filed or are dismissed. But the DHS memo doesn’t mention a way for non-citizens to do the same, noting that DNA data collected from individuals while they are children could remain on file with the FBI “in perpetuity.”

The privacy of family members of those subjected to DNA testing is also at risk. “This mass DNA collection exposes not only individuals, but also their families in the U.S. and abroad, to serious privacy risks,” says Katie Hasson, program director on genetic justice at the Center for Genetics and Society in Berkeley, California. For instance, several states use CODIS for familial searches — that is, searching for close biological matching — if no profile matches are identified in an initial search. That means family members of detained immigrants, including U.S. citizens, could be subject to invasive investigations, she says.

It is unclear whether the DHS will be sharing the DNA it collects and if so, with whom. The potential for it to be shared with other governments raises safety concerns for asylum-seekers who have not yet been granted refugee status. “There is a fear that some of their most private information could end up in the hands of those governments that they’re fleeing from,” Hussain says.

While proponents of DNA collection say the practice will help solve crimes, some experts worry that adding hundreds of thousands of DNA profiles to CODIS could increase the likelihood that an innocent person will be implicated in a crime. Every day, people shed millions of skin cells containing DNA, which can end up on items that a person has never come into contact with. Just because someone’s DNA is found at the scene of a crime does not mean that person is the perpetrator.

The U.S. government has been critical of forced DNA collection in other countries, mainly in China, where DNA and other biometric data is being gathered from Muslim Uighurs, an ethnic minority group, who have not been convicted or in some cases even suspected of a crime. But Katherine Hawkins, senior legal analyst at the Project on Government Oversight, a nonpartisan watchdog based in Washington, D.C., worries that the Trump administration’s new program comes dangerously close to what’s happening in China. “The U.S. government already collects a great deal of biometric information from non-citizens,” she says. DHS has expanded fingerprinting to children and has begun collecting iris scans of adults.

DNA provides much more information about a person than fingerprinting, which is solely a method of identification. DNA can reveal your ancestry, biological relationships, and personal health information. Scientists may eventually find a way to predict personality traits, sexual orientation, and intelligence from a person’s genetics.

Current technology can’t yet render an accurate image of a person’s face using just their DNA, but already, U.S. companies like Parabon Nanolabs are using early stage software to narrow down potential suspects. Chinese scientists are developing similar technology as well. If this technology improves, it will become a useful technique for catching criminals, but it could also lead to new face-recognition surveillance tools.

Some worry that if the government holds onto this DNA data indefinitely, it could open the door for future misuse against vulnerable and marginalized groups. “People of color are already overrepresented in CODIS and other law enforcement databases,” says Hasson, “and this will surely exacerbate that inequity.”