Editor’s Note: Vera Eidelman is a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. The views expressed in this commentary belong to the author. View more opinion articles at CNN.
The Trump administration will start piloting a Rapid DNA testing program at the US-Mexico border in an attempt to “identify and prosecute individuals posing as families,” two Department of Homeland Security officials told CNN. The pilot will reportedly run for two to three days to “assess the usefulness of this technology in an investigative process,” according to the acting deputy director of ICE.
Questioning the justification for the DNA program is necessary, especially when the administration has the propensity to distort or misrepresent statistics, lodge claims about the border without clear evidence, and even lie. We must also recognize the DNA testing program for what it is: yet another attempt by the Trump administration to intimidate and deter asylum seekers. It miscasts individuals seeking asylum at the border as criminals. It builds off that narrative to conduct increasingly intrusive biometric tests on a vulnerable population. And it uses the pretext of the border to extend the government’s surveillance infrastructure.
When forced, DNA collection raises serious privacy and civil liberties concerns. In this context, the government claims the DNA tests will be consensual. But what choice will asylum seekers have? If parents refuse to hand over their genetic material, or that of their children, will they be denied their right to seek asylum? Will the refusal to hand over their DNA count as evidence that they are not in fact related?
DNA analysis can also be very intrusive. In this case, we know for certain that the government is interested in learning more than an individual’s identity – it wants to know about biological familial relations, which can be sensitive. And what recourse will there be for asylum seekers when DNA testing fails to show a biological relationship, but a familial relationship still exists – for example, in the case of adopted children?
For these reasons and others, courts commonly use any number of less invasive methods to determine family relationships, including official documents, representations from witnesses, and observations of how the adult and child act toward one another.
DNA testing must only be used as a last resort when there is a genuine reason to doubt parentage and no less intrusive method is effective. After the ACLU filed a federal lawsuit successfully challenging the Trump administration’s family separation policy, for example, the administration proposed using DNA testing to reunite families it had ripped apart. Even under those circumstances, the court ruled that a DNA test must only be used as a last resort when there is genuine reason to doubt parentage, and no less intrusive method would be effective to confirm it.
Even when DNA is used as a last resort, there must be clear and binding safeguards – and oversight – in place to make sure that any DNA samples will be destroyed immediately after testing; that the samples and results will be used only for their intended purpose; that individuals will be guaranteed a right of access to their own results and that no information will be shared with other government agencies.
Such controls are necessary when the government collects and analyzes information as sensitive and personal as DNA. Today, our DNA can offer a blueprint to our propensity for certain medical conditions, our family relationships, and our ancestry, not to mention similar information about all of our relatives. In the future, it may reveal even more. Without controls on government access, use, retention, and sharing, databases of DNA could be built up and used for everything from discrimination to research on communities without their consent.
Time and again, the government has tried to use the pretext of the border to introduce, normalize, and expand surveillance technologies and practices. CBP is currently testing biometric face recognition at over a dozen major airports without appropriate safeguards to prevent rights violations. ICE and CBP already assert authority to conduct warrantless and suspicionless searches of travelers’ phones and laptops – a practice we are challenging in court – for purposes that have nothing to do with border and customs enforcement. And DHS has expanded its use of drones to areas outside border and coastal areas. These drones have been used for a variety of purposes, including conducting surveillance on behalf of other agencies like the FBI and investigating fishing violations.
Mission creep is real, and it is troubling.
The FBI and some local law enforcement agencies around the country have already adopted Rapid DNA technologies. Some investigators have decided to use the machines on samples the technology hasn’t been proven to accurately analyze. For example, investigators around the country are using Rapid DNA machines to process crime scene samples – even though the National District Attorneys Association has cautioned against such use. According to numerous scientists, the machines were not designed to analyze crime-scene evidence, which often includes an unknown amount of DNA from an unknown number of contributors. The FBI is also developing standards to enable linking the results from such tests into one centralized system.
DNA is far more than a replacement for the fingerprint. It is the “nuclear weapon” of identifying technologies that can reveal much more – and more intimate – information about people. DNA testing, if it is ever used, should be subject to clear and binding safeguards and proper oversight. It should certainly never be used to advance an anti-immigrant agenda.