The Trump Administration’s “zero tolerance” program of criminally prosecuting all undocumented adult immigrants who cross the U.S.-Mexico border has had the disastrous result of separating as many as 3,000 children—many no older than toddlers—from their parents and family members. The federal government doesn’t appear to have kept track of where each family member has ended up. Now politicians, agency officials, and private companies argue DNA collection is the way to bring these families back together. DNA is not the answer.
Politicians argue DNA collection is the way to bring these families back together. DNA is not the answer.
Two main DNA-related proposals appear to be on the table. First, in response to requests from U.S. Representative Jackie Speier, two private commercial DNA-collection companies proposed donating DNA sampling kits to verify familial relationships between children and their parents. Second, the federal Department of Health and Human Services has said it is either planning to or has already started collecting DNA from immigrants, also to verify kinship.
Both of these proposals threaten not just the privacy, security, and liberty of undocumented immigrants swept up in Trump’s Zero Tolerance program but also the privacy, security, and liberty of everyone related to them.
Jennifer Falcon, communications director at RAICES, an organization that provides free and low-cost legal services to immigrant children, families, and refugees in Texas succinctly summarized the problem:
These are already vulnerable communities, and this would potentially put their information at risk with the very people detaining them. They’re looking to solve one violation of civil rights with something that could cause another violation of civil rights.
Why is this a problem?
DNA reveals an extraordinary amount of private information about us. Our DNA contains our entire genetic makeup. It can reveal where our ancestors came from, who we are related to, our physical characteristics, and whether we are likely to get various genetically-determined diseases. Researchers have also theorized DNA may predict race, intelligence, criminality, sexual orientation, and even political ideology.
DNA collected from one person can be used to track down and implicate family members, even if those family members have never willingly donated their own DNA to a database. In 2012, researchers used genetic genealogy databases and publicly-available information to identify nearly 50 people from just three original anonymized samples. The police have used familial DNA searching to tie family members to unsolved crimes.
Once the federal government collects a DNA sample—no matter which agency does the collecting—the sample is sent to the FBI for storage, and the extracted profile is incorporated into the FBI’s massive CODIS database, which already contains over 13 million “offender” profiles (“detainees” are classified as “offenders”). It is next to impossible to get DNA expunged from the database, and once it’s in CODIS it is subject to repeated warrantless searches from all levels of state and federal law enforcement. Those searches have implicated people for crimes they didn’t commit.
Both of the proposals to use DNA to verify kinship between separated family members raise many unanswered questions. Here are a few we should be asking:
Who is actually collecting the DNA samples from parents and children?
Is it the federal government? If so, which agency? If it’s a private entity, which entity?
What legal authority do they have to collect DNA samples?
DHS still doesn’t appear to have legal authority to collect DNA samples from anyone younger than 14. Children younger than 14 should not be deemed to have consented to DNA collection. And under these circumstances, parents cannot consent to the collection of DNA from their children because the federal government has admitted it has already lost track of which children are related to which adults.
How are they collecting and processing the DNA?
Are they collecting a sample via a swab of the cheek? Is collection coerced or is it with the consent and assistance of the undocumented person? Once the sample is collected, how is it processed? Is it processed in a certified lab? Is it processed using a Rapid DNA machine? How is chain of custody tracked, and how is the collecting entity ensuring samples aren’t getting mixed up?
What happens to the DNA samples after they are collected, and who has access to them?
Are samples deleted after a match is found? If not, and if they are collected by a private genetics or genetic geneology company like 23 and Me or MyHerritage, do these companies get to hold onto the samples and add them to their databanks? Are there any limits on who can access them and for what purpose? If the federal government collects the samples, where is it storing them and who has access to them?
Will the DNA profiles extracted from the samples end up in FBI’s vast CODIS criminal DNA database?
Currently DHS does not have its own DNA database. Any DNA it collects goes to the FBI, where it may be searched by any criminal agency in the country.
Will the collected DNA be shared with foreign governments?
The U.S. government shares biometric data with its foreign partners. Will it share immigrant DNA? Will this be used to target immigrants if or when they are sent back home?
What if the separated family members aren’t genetically related or don’t represent a parent-child relationship?
How is the U.S. government planning to determine who is a “family member” once agencies have lost track of the families who traveled here together? What if the parent is a step-parent or legal guardian? What if the child is adopted? What if the adult traveling with the child is a more distant relative? Will they still be allowed to be reunited with their children?
Undocumented families shouldn’t have to trade one civil rights violation for another
These proposals to use DNA to reunite immigrant families aren’t new. In 2008, the United Nations High Commissioner for Refugees (UNHCR) looked at this exact problem. In a document titled DNA Testing to Establish Family Relationships in the Refugee Context, it recognized that DNA testing “can have serious implications for the right to privacy and family unity” and should be used only as a “last resort.” In 2012, we raised alarms about DHS’s proposals at that time to use DNA to verify claimed kinship in the refugee and asylum context. The concerns raised by DNA collection ten years ago have only heightened today.
The Trump administration shouldn’t be allowed to capitalize on the family separation crisis it created to blind us to these concerns. And well-meaning people who want to reunite families should consider other solutions to this crisis. Immigrant families shouldn’t have to trade the civil rights violation of being separated from their family members for the very real threats to privacy and civil liberties posed by DNA collection.