A Different Battle Over the Border: Concerns Over New DNA Collection Program
Blog Post | 108 KY. L. J. ONLINE | January 28, 2020
A Different Battle Over the Border: Concerns Over New DNA Collection Program
Kami Griffith
A new pilot program is in place at United States’ borders that some say could have major privacy implications for immigrants and U.S. citizens.[1] In January, the federal government began collecting DNA samples from some migrants in the custody of the Department of Homeland Security (DHS).[2] Until now, persons detained at the border were only subjected to fingerprinting.[3] The new program authorizes U.S. Customs and Border Protection (CBP) agents to collect DNA from anyone in their custody – including immigrants as well as U.S. citizens.[4] The samples will then be sent to the FBI’s Combined DNA Index System, a database used to compare DNA profiles to forensic evidence found at crime scenes.[5] The Department of Justice (DOJ) says the DNA samples will be “essential to the detection and solution of crimes [aliens] may have committed or may commit in the United States.”[6]
The scope of the federal government’s DNA database has expanded over time.[7] The FBI formally organized the database in 1994.[8] Originally, Congress passed a law that allowed the collection of DNA from citizens arrested for or convicted with federal crimes and non-citizens detained by the U.S. government.[9] However, DHS, and therefore CBP, was exempt from the DNA collection.[10] In 2019, the DOJ proposed revoking the exception, and implemented the pilot program now in place at border checkpoints in Michigan and Texas.[11]
The use of DNA evidence to solve cold cases has been a hot topic in the headlines over the last few years[12] and has led to some fierce debate in the Supreme Court.[13] In 2013, a majority opinion gave law enforcement agents the green light to collect DNA from people who have only been arrested for a crime, Justice Scalia wrote a dissent in which he said that pre-conviction DNA swab tests were unconstitutional.[14] Scalia said the majority’s decision would have grave public policy implications and predicted that in the future “your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”[15]
Some critics of the new policy are leaning on Justice Scalia’s dissent in attacking the pilot program.[16] One writer for the New York Times sees the change as another step in the gradual erosion of privacy by the government.[17] However, DHS says that the DNA samples are only meant to further criminal investigations and address public safety concerns.
Lawmakers in Texas and Michigan have already reached out to DHS, voicing concerns about privacy violations.[18] But DHS says that the pilot program is completely within the department’s legal authority.
[1] Daniel I. Morales et al., Opinion, DNA Collection at the Border Threatens the Privacy of All Americans, N.Y. Times (Jan. 23 2020), https://www.nytimes.com/2020/01/23/opinion/dna-collection-border-privacy.html.
[2] U.S. Dep’t of Homeland Sec., Privacy Impact Assessment for the CBP and ICE DNA Collection (2020), https://www.dhs.gov/sites/default/files/publications/privacy-pia-dhs080-detaineedna-january2020.pdf.
[3] Id. at 4.
[4] Id.
[5] Id. at 2.
[6] Id.
[7] Natalie Ram, Fortuity and Forensic Familial Identification, 63 Stan. L. Rev. 751, 760 (2011).
[8] Combined DNA Index System (CODIS), https://www.fbi.gov/services/laboratory/biometric-analysis/codis.
[9] 34 U.S.C. § 40702.
[10] Privacy Impact Assessment for the CBP and ICE DNA Collection, supra note 2.
[11] Geneva Sands, Trump Administration to Collect DNA Data From Some Migrants in Custody, CNN (Jan. 6, 2020) https://www.cnn.com/2020/01/06/politics/dna-samples-migrants-trump-administration/index.html.
[12] Christine Hauser, DNA is Solving Dozens of Cold Cases. Sometimes It’s Too Late for Justice, N.Y. Times (Apr. 1, 2019), https://www.nytimes.com/2019/04/01/us/montana-bernhardt-reich-murder.html?searchResultPosition=4.
[13] Maryland v. King, 569 U.S. 435, 435 (2013).
[14] Id. at 469-70.
[15] Id. at 481.
[16] Morales, supra note 1.
[17] Morales, supra note 1.
[18] Julian Resendiz, Stop Taking DNA Samples From Detained Migrants, Lawmakers Tell DHS, WRBL.COM (Jan. 21, 2020), https://www.wrbl.com/news/lawmakers-stop-taking-dna-samples-from-detained-migrants/.