Last spring, the Department of Homeland Security started collecting DNA at United States borders for the first time. Since then, DHS has quietly begun to implement the largest expansion of government DNA collection and storing of biometric information in more than a decade.
A whistleblower complaint is responsible for the decision to begin implementing rarely used 15-year-old regulations. It dovetails recently with a political imperative to criminalize immigration.
In May 2019, Immigration and Customs Enforcement started using rapid DNA testing kits on some children and adults coming across the border together. If the results showed the children were not closely related to the adults, they could be separated and the latter prosecuted for fraud.
Meanwhile, the whistleblower complaint was winding its way to the executive branch’s Office of Special Counsel — an objection to DHS not following the law and collecting DNA from detained immigrants.
DHS has, for over a decade, had the authority to collect DNA samples from immigrants over age 14 in their custody, the whistleblower detailed. The provision is part of a law passed in 2008 that incorporated DNA testing into law enforcement’s finger-printing practices.
But the law also states how this DNA information should be expunged from the FBI database when an arrest does not end in a conviction or a conviction was overturned. There is no similar process laid out for how immigrants who are later released from detention should have their information taken out of the DNA database.
DHS didn’t collect these samples during the Obama administration, carving out an exception because of the logistics and administration of such a large-scale collection effort.
The Office of Special Counsel agreed with the whistleblower and ordered DHS to begin collecting DNA and sending the information to the FBI where it is stored, indefinitely, in a database used to match individuals with crime scene DNA.
“This is miscasting hundreds of thousands of people as threats to public safety,” said Alexia Ramirez, with the American Civil Liberties Union’s Speech, Privacy, and Technology Project. Immigrants commit crimes at lower rates than native born populations in the United States, but the trend over the last few years is for more immigrants to be detained even without any criminal conviction.
Ramirez also worries about the privacy implication of large-scale DNA collection.
“The government mischaracterizes how much privacy we lose when our DNA is collected and stored,” she said. “This is much more than a fingerprint.”
The two major agencies charged with managing immigration, Customs and Border Protection and Immigration Customs and Enforcement, started DNA collection pilot projects earlier this month they say will inform the roll-out of wider DNA collection programs.
The pilot program begins with a 90-day phase in Eagle Pass, Texas and across an almost 900 mile stretch of shoreline along the Canadian border that includes parts of Michigan, Indiana, Ohio, and Illinois. The pilot will focus on individuals apprehended after trying to cross the border illegally.
Kristoffer Grogan, a CBP spokesperson, confirmed the program will not end after the pilot phase but said, “My understanding is there is going to be some kind of assessment after the 90 days.”
Representative Rashida Tlaib represents Detroit, which is one of the pilot communities. Her spokesperson, Denzel McCampbell, said Tlaib, “is currently exploring legislation to block DHS from collecting DNA samples from the families and individuals they are detaining at our borders.”
On Tuesday, Tlaib and Texas Representatives Joaquin Castro and Veronica Escobar sent a letter to Acting DHS Secretary Chad Wolf, asking for more details on the program. They requested information about the ages of people samples are being collected from and how the DNA will be used.
We are following these developments and have filed records requests to learn more about these collection techniques. Check out the materials we’ve already collected on the pilot program here and get updates on this investigation by signing up for our newsletter.