Senior officials at the Department of Homeland Security said Wednesday that the Justice Department was developing a federal regulation that would give immigration officers the authority to collect DNA in detention facilities that are holding more than 40,000 people.
The move would constitute a major expansion of the use of a database maintained by the FBI, which has been limited mainly to genetic data collected from people who have been arrested, charged or convicted in connection with serious crimes.
Immigrant and privacy advocates said the move raised privacy concerns for an already vulnerable population that could face profiling or discrimination as a result of their personal data being shared among law enforcement authorities. The new rules would allow the government to collect DNA from children, as well as those who seek asylum at legal ports of entry and have not broken the law.
They warned that U.S. citizens, who are sometimes accidentally booked into immigration custody, could also be forced to hand over their private genetic information.
“That kind of mass collection alters the purpose of DNA collection from one of criminal investigation basically to population surveillance, which is basically contrary to our basic notions of a free, trusting, autonomous society,” said Vera Eidelman, a staff lawyer with the American Civil Liberties Union’s Speech, Privacy and Technology Project.
She said that because genetic material carries strong family connections, the data collection would have implications not only for those in immigration custody but also their family members who might be U.S. citizens, or have legal residence.
Homeland Security officials, in a call with reporters Wednesday, said the new initiative was permitted under the DNA Fingerprint Act of 2005. Up until now, immigrant detainees have been exempt from the law, they said, because of an agreement between Eric Holder and Janet Napolitano, who served as attorney general and homeland security secretary, respectively, under President Barack Obama.
The officials said the proposed rule was inspired partly by a pilot program conducted this summer along the southwestern border, in which Immigration and Customs Enforcement agents used rapid DNA sampling technology to identify “fraudulent family units” — adults who were using children disguised as their own to exploit special protections for families with immigrant children.
The new program would differ from the pilot in that it would provide a comprehensive DNA profile of individuals who are tested, as opposed to the more narrow test that was used only to determine parentage. And unlike the testing under the pilot program, the results would be shared with other law enforcement agencies.
The move is part of a wider Trump administration move to criminalize unauthorized border crossings, even in some cases when people have complied with federal immigration laws, such as presenting themselves at legal ports of entry into the United States to seek asylum.
Regarding that group, which is considered protected under federal asylum law, a senior Homeland Security official who spoke with reporters on condition of anonymity said, “There is a criminal aspect to that population.”
Crossing the border without documents and attempting to elude border authorities is a misdemeanor for first offenders.
After the DNA samples are taken, under the forthcoming regulation, they would be entered into the FBI’s highly regulated national DNA database. Known as CODIS, the Combined DNA Index System is used by state and law enforcement authorities to help identify criminal suspects. It is advertised on the bureau’s website as a “tool for linking violent crimes.”
In supplying the FBI and other law enforcement with the DNA of immigration detainees, federal authorities are jumping into an ethical debate about the use of DNA in criminal investigations. While such sampling has been crucial in securing thousands of prosecutions over the past several decades, it has also generated controversy because of the potential for abuse.
Trump administration officials did not provide a timeline for the rollout of the regulation but said that a working group was meeting weekly to introduce it as soon as possible.
This article originally appeared in
.