Justice department crafting new rules that would allow US to collect trove of biometric data on migrants

The Trump administration is planning to expand the collection of DNA from migrants who cross US borders, and to include the information in a vast criminal database operated by the FBI.

The effort is separate from and much broader than the rapid DNA testing done on families at the US-Mexico border to help detect adults falsely posing as parents. Not much else is known yet about the increased testing, including its purpose and whether it would apply to children crossing alone or to asylum seekers.

Two senior homeland security officials, speaking Wednesday to reporters on condition of anonymity to discuss an ongoing effort, said the Department of Justice was crafting new regulations and details were being discussed in a working group, but it is not known when the plan would be implemented.

The collection comes after a huge increase in the number of people crossing the border, mostly Central American families. Officials have since said the numbers went down following crackdowns, changes on asylum and agreements with Central American countries, but border officers and agents have voiced concern over the potential for criminals crossing while resources were stretched.

The practice would allow the government to amass a trove of biometric data on migrants, raising major privacy concerns and questions over whether such data should be compelled even when a person is not suspected of a crime other than crossing the border illegally.

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“It’s not surprising, given this administration’s fixation on villainizing folks at the border, but it reaches beyond them,” said Vera Eidelman, an attorney with the American Civil Liberties Union. DNA also contains identifying information on their families, too.

Eidelman said it changed the purpose of DNA collection from one of criminal investigation to population surveillance.

A top border patrol official recently warned that expanding DNA collection at the border could hurt the orderly processing of migrants. During a deposition in a case involving families separated at the border, Brian Hastings, the chief of the border patrol’s law enforcement directorate, was asked by a judge whether DNA would be a good tool for identifying families.

“Even once such policies and procedures were put in place, border patrol agents are not currently trained on DNA collection measures, health and safety precautions, or the appropriate handling of DNA samples for processing,” he said.

DNA collection is non-invasive and done mostly through a cheek swab to collect saliva, or a piece of hair, but proper collection and sample storing require training. It’s not clear how many officers will be trained in collection. Right now, migrants who cross the border illegally are fingerprinted, and those fingerprints are sent to federal databases accessible by state and local law enforcement agencies.

DNA can be taken if a person has been arrested on federal charges, and crossing the border between ports of entry is considered a federal crime.

Law enforcement agencies can submit samples to the FBI from suspects who are arrested or convicted of state or federal crimes and non-US citizens who are being detained by the government. The FBI’s national DNA index contained more than 17m profiles from arrestees and other offenders as of August.

Some police departments collect samples from people who are never arrested or convicted of crimes, without a warrant, though the person is supposed to voluntarily provide a sample in those cases and not be coerced or threatened. State and federal authorities typically require a conviction or an arrest before a sample is taken.

The DNA fingerprint act of 2005 allows federal agencies to collect DNA from individuals in their custody, including those who are not American. It’s not a requirement, and homeland security has not vastly collected DNA samples.

In 2010, the then homeland security secretary, Janet Napolitano, directed that people held on administrative proceedings – not detained on criminal charges – and those facing deportation proceedings would not have DNA collected.

Broader sampling “would severely strain the resources of the agency to perform its broader mission”, Napolitano wrote in a letter to the then attorney general, Eric Holder.

The new regulations would install new protocols.

