Law enforcement collected over 1.5 million people’s DNA since 2020

'The government’s DNA collection program represents a massive expansion of genetic surveillance.'
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DNA test tube and cotton swab wipe test
The federal DNA database received more samples in three years than it did in the previous two decades combined. Deposit Photos

A new investigation published today by Georgetown University’s Center on Privacy & Technology reveals the Department of Homeland Security has amassed 1.5 million people’s DNA in recent years thanks to a potentially unconstitutional and predatory legal amendment targeting marginalized communities—a 5,000-percent increase compared to its database’s previous two decades of existence. This genetic material is permanently indexed under “offender” profiles and mostly belongs to BIPOC noncitizens, many of them coerced, intimidated, or misled by ICE, FBI, and DHS officials into believing they were taking COVID-19 tests.

The study’s authors believe the situation “extremely risky” for both individuals and the general public “given rapid advances in DNA technology, the lack of strong legal limits on what the government can do with those samples, and increasing political instability in the US.”

“The government’s DNA collection program represents a massive expansion of genetic surveillance and an unjustified invasion of privacy,” Emerald Tse, the Center’s Justice Fellow and a study co-author, said in an accompanying announcement. “The program reinforces harmful narratives about immigrants and intensifies existing policing practices that target immigrant communities and communities of color, making us all less safe.”

Raiding the Genome” is based on nearly two years of investigation of publicly available records, interviews with people subjected to DNA collection, as well as consultation with immigration authorities and legal service providers. The results offer an unvarnished look at the wide scale racialized, dystopian tactics that potentially violate US Constitution’s Fourth Amendment protections against unreasonable searches and seizures.

The government’s unprecedented expansion into genetic surveillance began during the Trump administration. Building upon the 2005 DNA Fingerprint Act, a 2020 Justice Department policy expansion grants FBI, Department of Homeland Security (DHS), and Immigration and Customs Enforcement (ICE) officials the authority to gather an individual’s DNA after being “detained” in an immigration context.

“As a practical matter almost nobody is categorically excluded from DNA collection by the requirement that they first be detained,” the Center explains.

Regardless of someone’s guilt or innocence, all samples are entered into the Combined DNA Index System (CODIS) federal database as permanently searchable “offender” profiles available to local, state, federal, and international criminal law enforcement. The program has remained active throughout the Biden administration and there is no indication Congress is considering to re-examine the policy.

[Related: Law enforcements can obtain prescription records from pharmacy giants without a warrant.]

“This program is fundamentally changing the character of our country’s genetic policing database and the rules around compelled DNA collection, and it’s doing so without serious democratic debate or oversight,” Stevie Glaberson, the Center’s Director of Research & Advocacy and a study co-author, said in an accompanying announcement.

Following an extensive review of available information, the Center on Privacy & Technology concludes these immigration policy exploitations have allowed the DHS to collect DNA mostly from people of color, often noncitizens, at a rate that wouldn’t be possible in traditional criminal policing. If the DHS continues at its projected pace, as much as one-third of all CODIS “offender” profiles by 2034 will come from methods that don’t follow standard police procedural rules for collecting DNA.

The investigators also “did not discover a single instance of a person refusing to submit to DNA” in all of their interviews with previously detained individuals. Many people cited fear and intimidation as key factors in agreeing to the DNA swabs.

“If a person were to object to giving a DNA sample, ICE’s admitted practice is to threaten that person with criminal prosecution,” study authors wrote.

These practices violate “any reasonable understanding of the Fourth Amendment,” researchers contend. Police can take DNA from arrested people only if they believe there is probable cause of a serious crime. While DHS agents frequently claim probable cause when detaining noncitizens, study authors argue their version of “probable cause” isn’t supported by any independent judicial review, and is therefore completely unconstitutional.

“The government is experimenting [with surveillance strategies] on people who are already vulnerable, exploited and politically marginalized. Throughout history, this has been a common strategy of the powerful when seeking to further expand their power,” Emily Tucker, report author and the Center on Privacy & Technology’s Executive Director, said through today’s announcement. “What is different about this, however, is that the government only needs DNA from a fraction of a population in order to achieve broad genetic surveillance over that population.”

Study authors call on the Biden administration to immediately halt DNA collection based on executive immigration powers and purge all relevant entries within CODIS. Congress, meanwhile, is urged to repeal the portion of the DNA Fingerprint Act authorizing DNA collection from anybody “detained under the authority of the United States.”

Researchers concede such outcomes are unfortunately “unlikely… in the near future” without grassroots efforts to enact real change and protect the ongoing DNA program’s main targets—marginalized communities and noncitizens.