The Trump Administration’s targeting of immigrants is no secret. Earlier this month, the Department of Justice (“DOJ”) “announced that in fiscal year 2019 (FY19), its U.S. Attorneys’ Offices prosecuted the highest number of immigration-related offenses” in the last twenty-five years and its Executive Office for Immigration Review adjudicated 275,000 cases, the second highest number in EOIR history. Most recently, on October 22, 2019, the DOJ published a proposed rule titled “DNA-Sample Collection From Immigration Detainees.” Put simply, the rule would remove 28 CFR § 28.12(b)(4), which gives the Secretary of Homeland Security the discretion to make exceptions to the otherwise-mandatory collection of a non-U.S. citizen’s DNA. If enacted, the rule would subject 743,000 immigrants—up from 7,000 in 2018—to having their DNA be stored in the FBI’s Combined DNA Index System (“CODIS”), a database originally established to track sex offenders and perpetrators of violent crimes. The passing of the proposed rule would represent yet another significant expansion of CODIS by the DOJ, beyond its originally intended use.
The DNA Fingerprint Act of 2005 (“the Act”) grants the Attorney General (“AG”) the power to authorize and craft exemptions to the collection of “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.” All collected DNA data is stored in CODIS. To supplement the Act, the AG issued 28 CFR § 28.12 in 2009, which required agencies to collect DNA samples as a “routine booking procedure,” parallel to fingerprinting. Because the Act purported to target non-U.S. individuals implicated in illegal activities, section 28.12(b) delineated four specific categories of people who were exempt from such mandatory DNA collection. At issue in this proposed rule is the fourth category of individuals exempt from DNA collection, 28 CFR § 28.12(b)(4): “Other aliens, with respect to whom the Secretary of Homeland Security . . . determines that the collection of DNA samples is not feasible because of operational exigencies or resource limitations.”
Reasoning that DNA collection has become cheaper and easier, the DOJ seeks to remove section 28.12(b)(4) in its proposed rule, which would vest the full power to establish exceptions to DNA-sample collection solely with the AG. The DOJ stressed the importance of equalizing the DNA-collection procedures for those arrested on criminal charges and those held for criminal violations, characterizing the distinction between the two groups as “artificial.” It then articulated the importance of DNA collection of both groups to further government interests, such as ensuring the safety of the public and detainee populations, exonerating innocent or wrongly suspected individuals, identifying individuals in law enforcement’s custody, and solving crimes properly. The DOJ argued the proposed rule would “further[] the interests of justice and public safety without compromising the interest in genetic privacy.”
If the proposal to eliminate section 28.12(b)(4) is enacted, the DOJ would continue its tradition of gradually broadening the reach of CODIS. In 1994, when the DNA Identification Act “formalized” the FBI’s ability to collect and store DNA for law enforcement purposes, CODIS was limited to the DNA information of those convicted of state crimes. The specific crimes that triggered DNA collection differed between states, but each state limited DNA collection to only what they perceived as the most extreme crimes. In 1998, CODIS was extended to federal criminals, but only federal sex offenders. In 2000, Congress extended CODIS ever-so-slightly once again to include those who committed a specific set of delineated federal crimes: murder, sexual abuse, kidnapping, and burglary. Despite each expansion, CODIS has been cabined to infringe on the privacy of only those who have been convicted of the most violent crimes.
With the enactment of the DNA Fingerprint Act, Congress subjected all arrestees under federal law to CODIS, a significant expansion. The Act took a database that contained DNA information of under 500,000 offenders in 2001 and expanded it to contain the information of 2.9 million offenders by the end of 2005. With the establishment of section 28.12, the DOJ further expanded CODIS. As of September 2019, CODIS contained nearly 14 million offender profiles, 3.7 million arrestee profiles, and almost 1 million forensic profiles. CODIS has grown inappropriately past its original purpose and has become a tool for mass genetic population surveillance.
Originally a tool targeted at state and local governments, CODIS has grown to massive proportions. Today, CODIS is accessible not only by 190 law enforcement laboratories and all federal criminal justice agencies, but also by anybody the FBI chooses to permit. Recently, for example, the FBI granted the Institute of National Remembrance, an institution of the Polish government that investigates crimes against the Polish nation, access to CODIS and all the DNA records within. Those whose DNA is stored in CODIS can thus be tracked not just domestically, but all around the world.
If the proposed rule is enacted, it would subject almost 750,000 detained immigrants to a database that by the FBI’s own admissions was originally established as “a tool for linking violent crimes.” Detained immigrants—including minors—would be exposed to the same genetic surveillance measures (that can lead to false positives) initially intended for murderers, sex crime violators, and kidnappers. One example is familial searching, a risk that could implicate not only immigrants, but also U.S. citizens. Familial searching is a particularly salient risk, given that the Department of Homeland Security has already shown an eagerness to prosecute immigrants posing as families (and in doing so, has implicitly criminalized adoption and other nontraditional family structures where parents and children may not be genetically related). To curtail the government’s ability to access an immigrant’s most personal and individually identifying information, the DOJ should not continue to expand CODIS.