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By Nick Mordowanec
Staff Writer
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Migrant DNA being collected by the United States government has surged more than 5,000 percent since 2020 and the "coercive" and "illegal" practice should end immediately, a researcher who co-authored a study told Newsweek.
The study, Raiding the Genome: How the United States Government Is Abusing Its Immigration Powers to Amass DNA for Future Policing, was published Tuesday by the Center on Privacy & Technology at Georgetown Law—a think tank dedicated to exposing government and corporate surveillance.
The study is derived from sources including media reports, government-published documents, and immigrants themselves who provided their DNA.
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Since 2020, the Department of Homeland Security (DHS) has added more than 1.5 million DNA profiles to the national law enforcement database (Combined DNA Index System, or CODIS). Prior to 2020, approximately 25,000 DNA profiles from noncitizens were added to the CODIS database.
DNA can be collected when immigration authorities like U.S. Customs and Border Patrol (CBP) and U.S. Immigration and Customs Enforcement (ICE) detain noncitizens attempting to enter the country.
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Once DHS collects DNA, it sends samples to the FBI and the bureau then adds profiles created from the samples to CODIS for indefinite storage. Those profiles then become available to law enforcement entities at the local, state, federal, and international levels for use in criminal investigations.
Center Justice Fellow Emerald Tse—one of the study's co-authors and researchers—told Newsweek via phone that the category of detention under immigration law is broad, allowing authorities to include a wider array of people in collection efforts that the Center claims is unconstitutional.
"In addition to the massive increase [since 2020], the fact that it's happening through coercive tactics; that the program is illegal and disproportionate; and has a disproportionate impact on people of color [makes it wrong]," Tse said. "And it will divert police resources.
"The vast majority of people in contact with federal immigration authorities are people of color. Also, if you look at the narrow category of people coming [to the U.S.], by nature the vast majority of people who will be detained and potentially subject to DNA collection will be people of color."
Work on the study began in 2021 following what was then viewed as a menial rule change instituted by the Department of Justice (DOJ).
Near the end of Donald Trump's first term, the DOJ eliminated an exemption in the government's existing DNA collection rule that previously had allowed DHS to refrain from building out a labor-intensive and expensive DNA-collection program.
"In so doing, it effectively set off a bomb that had lain dormant in federal law since 2005," the study says.
In 2005, the DNA Fingerprint Act passed as an amendment to the reauthorization bill for the Violence Against Women Act and in turn expanded compulsory DNA collection to detained noncitizens.
The study's authors note how administrations prior to Trump's believed "it was a good idea" to employ exceptions as a means of avoiding escalating DNA collection by the federal government.
But that changed in 2020 due to the broad and vague nature of the rule, which researchers say has resulted in millions of "detained" individuals complying with authorities and providing DNA out of fear and/or a desire to enter the U.S. legally at some juncture.
Tse said several privacy and immigration rights advocates spoke out about the rule during a public comment period. However, the DOJ "basically dismissed comments/concerns" and deemed the backlash as conflated.
"We were hearing from our advocates that DNA collection was being collected across the border" and what they were hearing "wasn't lining up" to what we were hearing, she said.
She and others who contributed to the study, through dozens of interviews with migrants and legal defenders who represent noncitizens, found that DNA collection was conducted in an almost haphazard fashion—in which migrants were not provided information about collection, and often too afraid to reject the practice.
The study notes that even though ICE and CBP officials are instructed under DHS guidelines to inform individuals of DNA collection, "many people we interviewed were not aware their DNA had been collected or thought the swab was for the purpose of a COVID-19 test."
Communication between the Center and federal agencies like DHS, CBP and ICE throughout the duration of the year-and-a-half study was sparse, except for one email exchange in June 2022 between an ICE official named Valentina Seeley and a Center staffer.
"Those who were aware of the collection submitted to a cheek swab under threat of criminal prosecution if they did not comply," the study says. "Many people were afraid to even ask about the purpose of the swab.
"In our research, we did not discover a single instance of a person refusing to submit to DNA collection. If a person were to object to giving a DNA sample, ICE's admitted practice is to threaten that person with criminal prosecution."
A DHS spokesperson told Newsweek via email on Tuesday that DOJ regulations implemented in 2008 as part of those regulations require federal agencies to collect DNA from individuals who are arrested, facing charges, or convicted, and from non–U.S. persons who are detained under U.S. authority. They limit DNA collection to individuals from whom the agency collects fingerprints.
Those regulations also authorized DHS, in consultation with DOJ, to exempt from DNA collection noncitizens from whom collection "is not feasible because of operational exigencies or resource limitations."
However, that 2020 rule change kept in place by the Biden administration eliminated DHS's discretionary exemption authority and thereby required DHS to implement DNA collection for all noncitizens detained in DHS custody unless "DOJ explicitly approves a limitation or exception on the general DNA collection requirement."
"Caring for the privacy of our most vulnerable populations is of utmost importance to DHS," DHS said. "CBP screens noncitizens utilizing a range of criteria and methods that are law enforcement sensitive."
Newsweek reached out to CBP, ICE, and DOJ via email for comment.
Tse said that she and other researchers know that the DOJ rule was passed at a time when the Trump administration "was trying to push a number of anti-immigrant laws and policies."
But blame is also laid on the Biden administration, which has left the rule in place despite having the power to unilaterally change the rule and put an end to the DNA collection program.
"We call on the president and his administration to end the program," Tse said. "In addition to that, expunge the DNA profiles and samples collected thus far."
She also calls on Congress to repeal the section of the DNA Fingerprint Act.
Update 05/22/24, 7:48 a.m. ET: This story was updated with comment from DHS.
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