Human Rights Watch Submits Comments on Proposed Rule on DNA-Sample Collection from Immigration Detainees

The following is Human Rights Watch’s comment in response to the US Department of Justice (DOJ) proposed rule, “DNA-Sample Collection From Immigration Detainees,” published October 22, 2019 (Docket No. DOJ-OAG-2019-0004). Human Rights Watch urges that the proposed rule be withdrawn because it will violate the privacy rights of hundreds of thousands of people, including children and asylum-seekers, and authorize a program of searches that violate the Fourth Amendment.

Human Rights Watch has documented numerous rights violations within the US immigration system, as well as the impact of government policies in the US and elsewhere that violate the right to privacy, including genetic privacy.

For the reasons detailed in the below comment, DOJ should immediately withdraw the proposed rule.

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November 12, 2019

Submitted via www.regulations.gov

Regulations Docket Clerk
Office of Legal Policy
Department of Justice
950 Pennsylvania Avenue NW, Room 4234
Washington, DC 20530

Re: Proposed rule on DNA-Sample Collection from Immigration Detainees, Docket No. DOJ-OAG-2019-0004

Dear Regulations Docket Clerk:

Human Rights Watch writes in response to Docket No. DOJ-OAG-2019-0004, the Department of Justice (DOJ) request for comments on DNA-Sample Collection From Immigration Detainees, 84 Fed. Reg. 56397 (Oct. 22, 2019) (hereinafter, the proposed rule).[1] Under the proposed rule, the Department of Homeland Security (DHS) would be required to collect DNA samples from certain immigrants detained by federal authorities. The rule as proposed will violate the privacy rights of hundreds of thousands of people, including children and asylum-seekers, and authorize a program of searches that violate the Fourth Amendment. We urge that the proposed rule be withdrawn.

Human Rights Watch is a nonprofit, nongovernmental human rights organization. We operate in 90 countries and have been investigating, documenting, and exposing human rights abuses around the world for four decades. We have published numerous reports on abuses within the US immigration system. We have also documented the impact of governmental policies in the US and elsewhere that violate the right to privacy, including genetic privacy.

The proposed rule would remove a provision that exempts DHS from a statutory requirement to collect DNA samples from detained non-resident immigrants.[2] DOJ estimates that almost 750,000 people annually would be subjected to DNA sample collection under the proposed rule. The samples collected under the proposed rule would be stored in a national DNA database that does not permit people detained under federal authority to request that their DNA profiles be deleted. The proposed rule would not exempt especially vulnerable populations, namely children[3] and asylum-seekers,[4] from DNA collection.

The proposed rule describes a need for federal authorities to accurately identify detained immigrants and ensure that detention and bail conditions are adjusted for people linked to crimes. These are important goals, but mass DNA collection does not further them. DHS has broadly deployed sophisticated identity verification technology, and DOJ has documented significant flaws with the national DNA database that would be used to assess whether detained people are connected to crimes.

Under international human rights law, countries may have a legitimate interest in interfering in a person’s privacy. For the interference to be legitimate, it must be specified in law, necessary to protect a specific interest such as national security or public safety, and be a proportionate means of attaining the expected benefit.

The collection and indefinite retention of genetic data from hundreds of thousands of detained people, including children and asylum-seekers, is a serious intrusion on privacy that is neither necessary nor proportionate to the goals articulated by the US government, and thus violates US obligations under international treaties such as the International Covenant on Civil and Political Rights.[5] In certain contexts, DNA collection under the proposed rule would also violate Constitutional protections against warrantless searches. We therefore urge that the proposed rule be withdrawn.

  1. The proposed rule would profoundly invade the privacy of hundreds of thousands of people but is neither necessary nor particularly effective at achieving the US government’s stated interests.

The government’s stated interest in DNA sample collection is to properly identify a detained person. Identity verification through DNA collection, the proposed rule suggests, allows DHS to better make decisions about detention and bail conditions: a person who is found to be connected to a crime should be detained under special procedures or denied bail, in order to preserve the safety of others.

While governments have an obligation to protect people, DNA sample collection provides limited benefit to identifying detained people and evaluating their connection to criminal activity.

DNA samples collected under the proposed rule would be searched against the Combined DNA Index System (CODIS), a hierarchy of DNA databases managed by the Federal Bureau of Investigation. In the case of people detained under the authority of the United States, law enforcement officers collect DNA samples and upload the resulting profile to the National DNA Index System (NDIS).[6] NDIS is the largest database in CODIS, collecting and compiling profiles from federal law enforcement and a subset of the profiles collected by state and local law enforcement.

As of September 2019, NDIS contains almost 14 million DNA profiles of people convicted of crimes or detained under federal authority, 3.7 million DNA profiles of people arrested for a crime, and almost 1 million DNA profiles collected as forensic data – unidentified DNA evidence collected from a crime scene and retained for investigative purposes.[7]

DHS already deploys a sophisticated suite of tools for identity verification. As a matter of practice, CBP officers check identity documents and collect fingerprints from people entering the United States. For instance, CBP officers use a biometric identification system to compare collected fingerprints to national databases of fingerprints collected from people arrested for or convicted of crimes. As fingerprint collection is a part of standard law enforcement booking procedures, the biometric identification system allows DHS to determine if people detained under federal authority are linked to crimes.[8]

Given the prevalence and accuracy of fingerprint collection and other systems, DNA sample collection would not provide meaningful added benefit to DHS for identification.

Beyond identification, DOJ describes an interest in identifying if detained immigrants have a criminal history. DNA collected from detained immigrants would be compared to CODIS’s forensic DNA profiles, the unidentified DNA collected from crime scenes, in order to make procedural decisions about detention and bail conditions. Any potential benefit is limited by DOJ’s own assessment that forensic data is routinely compromised at the point of collection or entry into CODIS.

The DOJ Office of Inspector General (OIG) audits laboratories that upload DNA samples into CODIS databases that feed into the NDIS. Auditors assess a sample of forensic profiles to determine whether their compliance with NDIS guidelines on proper entry of forensic DNA. The DOJ OIG conducted 32 audits in the past ten years. Only five of the audited laboratories were cleared as fully compliant. On average, seven percent of the samples tested at the other audited laboratories were compromised or improper. Auditors found DNA profiles collected from random objects with no connection to the crime and from residences far from the crime scene. In some cases, crime victims’ DNA was improperly recorded as the DNA of an unidentified suspect. In two extreme cases, auditors found that a third of the tested sample was not complete, accurate, or allowable for inclusion in the database under NDIS guidelines.[9]

Governments have a human rights obligation to investigate serious crimes. CODIS is a powerful tool to facilitate such investigations. But the proposed rule indicates that the government will use DNA sample matches in CODIS as a procedural tool to make decisions about detention and bail conditions. Given the high rate of compromise in the forensic dataset, such procedural decision-making would risk replicating errors, limiting CODIS’s utility to DHS.

  1. The proposed rule would store DNA samples from hundreds of thousands of people in perpetuity with no pathway for removal.

When a DNA profile is uploaded to NDIS, it generally stays there, even if the person from whom the profile was collected is never convicted of a crime. The indefinite retention of DNA data significantly increases the invasiveness of the privacy violation that detained immigrants would experience under the proposed rule.[10]

Federal law requires NDIS and state-level databases that contribute to NDIS to create procedures for the deletion of DNA data, known as expungement. A profile is eligible for expungement when it is connected to a person with an overturned conviction or a person who was arrested but acquitted, arrested with dismissed charges, or arrested but not charged. The burden of requesting expungement from NDIS and many state-level databases lies entirely with the individual whose DNA is retained. He or she must request expungement in writing and provide a certified copy of a court order indicating an overturned conviction, acquittal, dismissal of charges, or notice of no charges filed.[11] (Some states automatically expunge eligible profiles.) The limited data available on the expungement process indicate that the high procedural and monetary cost impedes expungement of all but the barest fraction of eligible profiles.[12]

The hundreds of thousands of people whose DNA would be collected under the proposed rule would not be able to request that their DNA be deleted – even for people detained subject to civil removal proceedings without being charged with or convicted of a crime, or people who claim asylum while detained under federal authority. The statute governing expungement from NDIS does not permit the deletion of DNA profiles collected from people detained under federal authority.[13]

  1. The proposed rule would violate the Fourth Amendment rights of immigrants detained for administrative processing alone.

The Fourth Amendment to the United States Constitution is designed to protect the population, including non-citizens, from arbitrary searches and seizures by the government. While no Fourth Amendment caselaw specifically addresses the DNA collection specified under the proposed rule, it is clear that certain immigrants would experience violations of their Fourth Amendment rights if the rule is implemented.

The US Supreme Court has ruled that warrantless DNA collection is permissible in certain contexts. In Maryland v. King, the Court held that a Maryland police officer’s warrantless collection of DNA from a person arrested for a violent crime did not violate the Fourth Amendment rights of the arrestee. In balancing the arrestee’s expectation of privacy against the government’s need to identify him, the Court ruled that the minimal intrusion of a cheek swab was a reasonable search despite the lack of a warrant. The Court emphasized that in considering the balance of Constitutional rights and government interest, “the necessary predicate of a valid arrest for a serious offense is fundamental.”[14]

A “serious offense” in King refers, generally, to crimes of violence and similar seriousness, and “valid arrest” refers to an arrest made with probable cause. The Court’s limitation of its analysis in King suggests that warrantless DNA collection may violate the Fourth Amendment rights of people who are held under federal authority for civil violations and not arrested under suspicion for having committed a crime.

Many immigrants are detained subject to an alleged civil violation while civil removal proceedings are pending, without any allegation of a crime. A person who has overstayed their visa, for instance, has not committed a crime but can be detained under federal authority. According to the Pew Research Center, such overstays likely make up a majority of unauthorized immigrants in the United States.[15] Even those detained for civil removal proceedings who may have committed the federal crimes of illegal entry or illegal reentry have not been arrested with probable cause for those crimes.

US courts generally recognize that Fourth Amendment rights are limited at the border. The US Supreme Court has held that an individual’s expectations of privacy are less at the border than within the interior of the United States and that the balance of interests between the government and the individual’s privacy right is weighed more favorably toward the government at the border. Under this logic, most searches and seizures at the border do not require a judicial warrant, even when the search involves some invasion of a person’s bodily autonomy.[16] The government has argued, with some support from the courts, that the zone of limited Fourth Amendment rights extends into the interior of the United States in a 100 mile-radius from any external border.[17]

A significant subset of people held in immigration detention under federal authority are detained beyond this 100 mile-radius. This group of people would be detained with their full Fourth Amendment Rights and not subject to the Court’s analysis in King.

While we cannot assess the extent of the group described above, warrantless DNA collection as described under the proposed rule would violate their Fourth Amendment rights. Such warrantless DNA collection may well also violate the Fourth Amendment rights of those detained within 100 miles of the border and those detained at the border itself.

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The proposed rule contravenes the right to privacy and would authorize a program of searches that violate the Fourth Amendment. For these reasons, Human Rights Watch expresses its opposition to the proposed rule and urges the Department of Justice to withdraw it. Please do not hesitate to contact us if you have questions regarding our comments. Thank you for your consideration.

Sincerely,

Nicole Austin-Hillery
Executive Director
US Program
Human Rights Watch

 

[1] 84 Fed. Reg. 56397 (Oct. 22, 2019), available at https://www.federalregister.gov/documents/2019/10/22/2019-22877/dna-sample-collection-from-immigration-detainees (accessed November 4, 2019).

[2] The proposed rule would remove 28 C.F.R. § 28.12(b)(4), which exempts DHS from collecting DNA samples from “[o]ther aliens with respect to whom the Secretary of Homeland Security, in consultation with the Attorney General, determines that the collection of DNA samples is not feasible because of operational exigencies or resource limitations.” In 2009, Secretary of Homeland Security Janet Napolitano requested exceptions under 28 C.F.R. 28.12(b)(4) for “[n]on-U.S. persons detained for processing under administrative proceedings (not facing criminal charges), including juveniles under the age of 18” and “[n]on-U.S. persons currently within DHS custody, pending administrative removal proceedings.” Letter from Janet Napolitano to Eric Holder (Mar. 22, 2010), available at https://www.eff.org/files/filenode/ice_dna_3-22-10_napolitanoletter.pdf (accessed Nov. 4, 2019).

[3] DOJ officials have stated that children under the age of 14 will be exempted from DNA collection. The proposed rule does not include such an exception. Children under the age of 18 have a specific right to privacy under international law. Daniel Trotta, "U.S. proposes collecting DNA samples from detained immigrants,” Reuters, Oct. 21, 2019, available at https://www.reuters.com/article/us-usa-immigration-dna/us-proposes-collecting-dna-samples-from-detained-immigrants-idUSKBN1X0250 (accessed Nov. 4, 2019); International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, 999 U.N.T.S. 171, entered into force Mar. 23, 1976, ratified by the United States on June 8, 1992, art. 24; Convention on the Rights of the Child (CRC), adopted Nov. 20, 1989, 1577 U.N.T.S. 3, entered into force Sept. 2, 1990, signed by the United States Feb. 16, 1995, art. 16, available at https://www.ohchr.org/en/professionalinterest/pages/crc.aspx (accessed Nov. 4, 2019)

[4] Asylum-seekers are generally detained under federal authority when they apply for asylum at a US port of entry or after apprehension within the United States. 8 U.S.C. § 1225(b)(1)(B)(IV).

[5] ICCPR, art. 17.

[6] Federal Bureau of Investigation, “Federal DNA Database,” available at https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet (accessed Nov. 4, 2019); Federal Bureau of Investigation, “Frequently Asked Questions on CODIS and NDIS,” available at https://www.fbi.gov/services/laboratory/biometric-analysis/federal-dna-database (accessed Nov. 4, 2019).

[7] Federal Bureau of Investigation, “CODIS-NDIS Statistics,” available at https://www.fbi.gov/services/laboratory/biometric-analysis/codis/ndis-statistics (accessed Nov. 4, 2019).

[8] Mary Mason, “Biometric Breakthrough,” CBP Frontline, Dec. 12, 2017, available at https://www.cbp.gov/frontline/cbp-biometric-testing (accessed Nov. 4, 2019); and U.S. Customs and Border Protection, “Securing America’s Borders,” Sept. 2006, available at https://www.hsdl.org/?view&did=29068 (accessed Nov. 4, 2019).

[9] U.S. Department of Justice Office of the Inspector General, “Combined DNA Index System Audits,” available at https://oig.justice.gov/reports/codis-ext.htm (accessed Nov. 4, 2019), evaluating audits released between November 1, 2009 and October 31, 2019.

[10] In other jurisdictions, courts have found that the retention of genetic data for people not convicted of crimes is a violation of the right to privacy, most notably in the European Court of Human Rights’ ruling on the right to privacy under the European Convention on Human Rights. See S and Marper v. United Kingdom, Application Nos. 30562/04 and 30566/04, Judgment, Dec. 4, 2008, [2008] ECHR 1581.

[11] FBI Laboratory, “National DNA Index System (NDIS) Operational Procedures Manual,” May 1, 2019, available at https://www.fbi.gov/file-repository/ndis-operational-procedures-manual.pdf (accessed Nov. 4, 2019).

[12] Julie Samuels et. al., “Collection DNA From Arrestees: Implementation Lessons,” NIJ Journal, No. 270 (June 2012), available at https://www.ncjrs.gov/pdffiles1/nij/238484.pdf (accessed Nov. 4, 2019); Elizabeth E. Joh, “The Myth of Arrestee DNA Expungement,” 164 U. Pa. L. Rev. Online 51 (2015), available at http://www.pennlawreview.com/online/164-U-Pa-L-Rev-Online-51.pdf (accessed Nov. 4, 2019).

[13] 34 U.S.C. § 12592.

[14] Maryland v. King, 569 U.S. 435 on 462.

[15] Jeffrey S. Passel and D’Vera Cohn, Pew Research Center, “U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade,” November 27, 2018, available at https://www.pewresearch.org/hispanic/2018/11/27/u-s-unauthorized-immigrant-total-dips-to-lowest-level-in-a-decade (last accessed November 4, 2019).

[16] See, for example, United States v. Montoya de Hernandez, 473 U.S. 531, upholding the conviction of a traveler arriving at an international airport after customs officials conducted a warrantless patdown search, detained her for 16 hours, and then sought and received a court order authorizing an x-ray and rectal examination. 

[17] 8 U.S.C. § 1357(a)(3) and 8 CFR § 287.1; see, for example, United States v. Martinez-Fuerte, 428 U.S. 543, holding that U.S. Border Patrol checkpoints on public highways within the United States near the U.S.-Mexico border are not a violation of the Fourth Amendment.