Regulations Docket Clerk
Office of Legal Policy
Department of Justice
950 Pennsylvania Avenue NW, Room 4234
Washington, DC 20530
Subject: Docket No. OAG-164
The Constitution Project at the Project On Government Oversight writes in response to Docket No. OAG-164, “DNA-Sample Collection From Immigration Detainees.”1 The proposed expansion of involuntary DNA collection is not justified by a public safety need. At best, it would waste government resources by collecting and storing hundreds of thousands of DNA samples on the basis of immigration status rather than evidence of criminal behavior; at worst, it could subject a vulnerable group to stigmatization, privacy breaches, and human rights violations.
The proposed rule would dramatically expand the Department of Homeland Security’s collection of individuals’ DNA.
The DNA Fingerprint Act of 2005 authorized the attorney general “to collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States.”2 While DNA collection upon conviction or arrest has become increasingly routine for both federal and state officials, and the FBI’s Combined DNA Index System (CODIS) now contains millions of entries,3 the Department of Homeland Security (DHS) collects DNA far less frequently. As the proposed rule states:
DHS submitted nearly 7,000 samples in FY2018. Therefore, assuming the population subject to DNA collection under the rule remains at this level, DHS would be expected to submit an additional 748,000 samples annually.4
The Department of Justice attempts to justify this drastic increase in DNA collection without a criminal conviction or even arrest by asserting that people in immigration custody are likely mainly criminals:
[D]istinguishing the treatment of criminal arrestees and immigration detainees with respect to DNA identification is largely artificial, in that most immigration detainees are held on the basis of conduct that is itself criminal. Aliens who are apprehended following illegal entry have likely committed crimes under the immigration laws, such as 8 U.S.C. 1325(a) and 1326, for which they can be prosecuted.5
This argument is deeply flawed. First, it is inappropriate for the attorney general to presume guilt of a class of people based on their immigration status.
Second, the criminal offense that immigration detainees are most commonly charged with, unlawful entry under 8 U.S.C. § 1325, is a petty misdemeanor that is not a qualifying offense for DNA collection under federal law.6 There is no reason to believe that asylum seekers or migrant families fleeing violence, persecution, or extreme poverty—many of whom voluntarily surrender to border patrol agents at the first opportunity—present any risk to public safety.7 People who enter the country without inspection may not be aware of the requirement to enter at a designated port of entry or lack the means to safely access one; or may have been turned back by U.S. or Mexican authorities after attempting to present themselves lawfully at ports of entry.8
Third, according to press reports, DHS plans to involuntarily take DNA samples from people who have broken no laws at all, including children between 14 and 18 years of age.9 The proposed rule contains no exemption for asylum seekers who present themselves at an official port of entry, as DHS officials confirmed to the press.10
Fourth, while a person whose DNA is collected based on a criminal arrest or conviction can have it expunged from federal databases if the charges are dismissed or their conviction is overturned,11 there is no provision in the proposed rule for expungement of DNA samples collected in immigration detention.
Known Risks and Harms
DNA collection, while not particularly physically invasive, creates a wide variety of privacy risks that strongly outweigh the purported benefits of the program.
Mass collection of DNA creates serious risks based on the potential for genetic identification. Government officials could use DNA to catalog First Amendment-protected activities. If government officials took items with DNA, such as empty water bottles, from trash at the site of a protest or outside a church, they could run samples against existing databases to identify participants. The mere risk of such an occurrence could chill engagement in such activities.
Further, this system of large-scale collection circumvents due process systems established for collection and use of DNA for law enforcement activities, which generally provide that DNA can be expunged in the absence of a valid criminal conviction. By collecting genetically identifying information of certain classes of people disconnected from suspicion of wrongdoing, the government would establish a system whereby certain categories of people are entitled to a lower degree of due process protections. The United States has condemned the involuntary collection of DNA from, and its use for surveillance and repression of, disfavored classes by the Chinese government in Xinjiang province.12
In addition to serving as a unique genetic identifier, DNA reveals information about heritage, biological relationships, physical characteristics, medical conditions, genetic diseases, and predisposition for genetic disorders and health risks.
The ability to use DNA to identify medical conditions and a person’s disposition for genetic diseases creates a range of risks. Such information could become the basis for denying immigration status, public benefits, or medical treatments. It could become the basis for denying various civic service roles and opportunities. There is a dark history of eugenics policies in the United States: Involuntary sterilization laws targeting individuals with medical conditions existed throughout the 20th century, resulting in tens of thousands of forced sterilizations.13
These risks are augmented by the fact that the revelations posed by DNA are not limited to a single person, but rather apply to current and future biological relatives. Use of DNA against relatives can create an array of harms, especially if that information is obtained by other entities, a problem we discuss below. The government could find new, abusive uses for DNA, and lift legal limits on its use, for generations to come.
Unknown Risks of Future DNA Analysis
In addition to the potential harms that could result from current uses of DNA, there are a litany of risks that may arise in the future from information that may yet be discerned about people from their DNA as technology advances. Researchers have theorized that DNA could be used to identify personality traits,14 intelligence,15 sexual orientation,16 political affiliations,17 and inclination to commit crimes.18 And the ability to identify these or other sensitive traits does not need to be fully developed or accurate, just simply convincing enough, to be applied. From fingerprints to facial recognition, the government regularly draws unreliable conclusions from biological information.19
Endangering Future Generations
Because genetics are shared among biological relatives, the proposed policy not only endangers people directly affected but also their descendants. If a person’s DNA is collected on the basis of a brief detention, their children and grandchildren could be impacted by laws and policies directed at people with certain medical conditions or genetic disorders. The government could acquire sensitive information—including information we currently cannot discern from DNA—about generations of people.
Risk of Data Breach and Unauthorized Use
Given the sensitivity of what DNA reveals, it is essential to consider not only how the federal government may use DNA after collecting it but also what other entities might do if they obtain this information. The government has demonstrated a troubling inability to keep individuals’ biological data secure: Uniquely identifying biological information of over five million current and former government employees was compromised during the Office of Personnel Management breach in 2015,20 and earlier this year a DHS database of travelers’ identifying photos was breached.21 Unlike passwords or even social security numbers, biological information cannot be changed if it is compromised in a data breach. Once a person’s biological information is obtained by an unauthorized party, it is obtained irrevocably.
DNA data could be used by malicious entities to engage in various forms of genetic discrimination. This risk is especially heightened for immigrants if a breach leads to DNA being collected by foreign governments, as a detained individual might return to a foreign country or have biological relatives abroad. If a person’s DNA is revealed from a breached United States database, their relatives abroad could be subjected to genetic discrimination.
Lack of Necessity
The risks of DNA collection should be considered in conjunction with the potential benefits that a collection program might provide. In this context, the benefits are minimal, and certainly insufficient to justify the risks. DHS already engages in extensive collection of fingerprints as a uniquely identifying biological marker, and is increasingly obtaining other biometrics such as iris and face scans. DHS uses this technology to deny entry to or arrest thousands of people every year.22
In short, the proposal to collect DNA from almost every individual held in immigration detention does very little to protect public safety, and creates serious risks of abuse. For these reasons, the Constitution Project at POGO urges you to withdraw to proposed rule.
Thank you for consideration. If you have any questions, we can be reached at (202) 347-1122.
Senior Legal Analyst
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.
“Frequently Asked Questions on CODIS and NDIS,” FBI. https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet (accessed November 8, 2019)12
Deputy Secretary John J. Sullivan, “Remarks at the Human Rights Crisis in Xinjiang Event,” (speech, New York City, New York), September 24, 2019. https://www.state.gov/deputy-secretary-john-j-sullivan-remarks-at-the-human-rights-crisis-in-xinjiang-event/; United States Department of State, China 2018 International Religious Freedom Report, 2018. https://www.state.gov/wp-content/uploads/2019/05/CHINA-INCLUSIVE-2018-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf13
Lisa Ko, “Unwanted Sterilization and Eugenics Programs in the United States,” PBS, January 29, 2016. http://www.pbs.org/independentlens/blog/unwanted-sterilization-and-eugenics-programs-in-the-united-states/; Paul Lombardo, “Eugenic Sterilization Laws,” Image Archive on the American Eugenics Movement. http://www.eugenicsarchive.org/html/eugenics/essay8text.html14 David Nield, “Scientists Have Found Genetic Links Between Personality Traits And Psychiatric Diseases,” Science Alert, December 16, 2016. https://www.sciencealert.com/scientists-find-genetic-links-between-personality-traits-and-psychiatric-diseases 15
Carl Zimmer, “Genetic Intelligence Tests Are Next to Worthless,” Atlantic, May 29, 2018. https://www.theatlantic.com/science/archive/2018/05/genetic-intelligence-tests-are-next-to-worthless/561392/16
Jocelyn Kaiser, “Genetics may explain up to 25% of same-sex behavior, giant analysis reveals,” AAAS, August 29, 2019. https://www.sciencemag.org/news/2019/08/genetics-may-explain-25-same-sex-behavior-giant-analysis-reveals17 James Q. Wilson, “The DNA of Politics,” City Journal, Winter 2019. https://www.city-journal.org/html/dna-politics-13148.html 18
Katherine Morley and Wayne Hall, “Is there a genetic susceptibility to engage in criminal acts?” Australian Institute of Criminality, September 2018. https://aic.gov.au/publications/tandi/tandi26319
Dahlia Lithwick, “Pseudoscience in the Witness Box,” Slate, April 22, 2015. https://slate.com/news-and-politics/2015/04/fbis-flawed-forensics-expert-testimony-hair-analysis-bite-marks-fingerprints-arson.html; Clare Garvie, “Garbage In, Garbage Out,” Georgetown Law Center on Privacy & Technology, May 16, 2019. https://www.flawedfacedata.com20 Andrea Peterson, “OPM says 5.6 million fingerprints stolen in cyberattack, five times as many as previously thought,” Washington Post, September 23, 2015. https://www.washingtonpost.com/news/the-switch/wp/2015/09/23/opm-now-says-more-than-five-million-fingerprints-compromised-in-breaches/ 21
Sidney Fussell, “This Is Exactly What Privacy Experts Said Would Happen,” Atlantic, June 11, 2019. https://www.theatlantic.com/technology/archive/2019/06/travelers-images-stolen-attack-cbp/591403/22
“Office of Biometric Identity Management Identification Services,” Department of Homeland Security. https://www.dhs.gov/obim-biometric-identification-services (accessed November 12, 2019); Justin Rohrlich, “Homeland Security will soon have biometric data on nearly 260 million people,” Quartz, November 7, 2019. https://qz.com/1744400/dhs-expected-to-have-biometrics-on-260-million-people-by-2022/