Written by Jennifer Lynch
In the amount of time it takes to get lunch, the government can now collect your DNA and extract a profile that identifies you and your family members.
Rapid DNA Analyzers—machines with the ability to process DNA in 90 minutes or less—are an operational reality and are being marketed to the federal government and state and local law enforcement agencies around the country. These machines, each about the size of a laser printer, are designed to be used in the field by non-scientists, and—if you believe the hype from manufacturers like IntegenX and NetBio—will soon “revolutionize the use of DNA by making it a routine identification and investigational tool.”
From documents we received recently from US Citizenship and Immigration Services (USCIS) and DHS’s Science & Technology division, we’ve learned that the two agencies are working with outside venders NetBio, Lockheed Martin and IntegenX and have “earmarked substantial funds” to develop a Rapid DNA analyzer that can verify familial relationships for refugee and asylum applications.
In the refugee context—where people are often stranded in camps far from their homes with little access to the documentation needed to prove they should be granted asylum in the US—DNA identification could be useful for both the federal government and the asylum seeker.
However, DNA samples contain such sensitive, private and personal information that their indefinite storage and unlimited sharing create privacy risks far worse than other types of data. The United Nations High Commissioner for Refugees (UNHCR) stated in a 2008 Note titled DNA Testing to Establish Family Relationships in the Refugee Context that DNA testing “can have serious implications for the right to privacy and family unity” and should be used only as a “last resort.” The UNHCR also stated that, if DNA is collected, it “should not be used for any other purpose (for instance medical tests or criminal investigations) than the verification of family relationships” and that DNA associated with the test “should normally be destroyed once a decision has been made.”
It seems USCIS is not heeding the UNHCR’s recommendations; the documents show that USCIS wants to use Rapid DNA analysis for much broader purposes than just verifying refugee applications. The agency notes that DNA should be collected from all immigration applicants—possibly even infants—and then stored in the FBI’s criminal DNA database. The agency also supports sharing immigrant DNA with “local, state, tribal, international, and other federal partners” including the Department of Defense and Interpol on the off-chance the refugee or asylum seeker could be a criminal or terrorist or could commit a crime or act of terrorism in the future. This flow chart shows USCIS’s ideal DNA collection and sharing process.
USCIS is not alone in wanting to get the most out of DNA collection. Another document we received shows that the intelligence community and the military are interested in DNA analysis to reveal ethnicity, health status, age, and other factors. And while Rapid DNA analyzers are not currently set up to extract enough data to reveal this information, IntegenX representatives at the Biometrics Consortium Conference this past September said that setting up the machines to extract additional loci would not be difficult.
Some federal agencies interested in Rapid DNA may not be able to implement it widescale for some time. Currently USCIS “does not have the authority to require DNA testing, even when fraud is highly suspected.” For that to happen, the agency would have to update 8 C.F.R. 204.2(d)(vi),1 which it has discussed doing but hasn’t yet done. And although the FBI is also very interested in Rapid DNA analyzers, legal rules prevent the Bureau from using the machines to process any DNA that wil go into its CODIS (Combined DNA Index System) database.
This hasn’t stopped Rapid DNA manufacturers from aggressively marketing their products to state and local law enforcement agencies across the country. IntegenX and Lockhead Martin are both pushing local governments (pdf p.3) to create their own local DNA databases (p. 17, pdf here) instead of relying on CODIS. This has pluses and minuses—it means some chunk of the DNA collected by state or local cops may not end up in the FBI’s massive DNA database and become subject to repeated nationwide searching. However, it also means that cops may not follow the stringent DNA handling procedures currently required by the FBI2 and that, without oversight, collection procedures could become based on little or no real suspicion of criminal activity.
Whether the technology itself is accurate and appropriate to use for immigration populations may also be an issue. According to the documents, scientists at the National Institute of Standards and Technology are uncertain whether the “Likelihood Ratios”3 currently used by accredited labs would be applicable “to an immigration population, since the largest reference groups, whose characteristics feed into the calculations of the ratios, are American Caucasians and Hispanics.” DHS’s own Science & Technology Division noted at a January 4, 2011 Working Group meeting that it was concerned “that prototype equipment may not provide totally reliable results.” Science & Technology staff stated they could not “yet predict how accurate the non-match findings will be, since the error rate for the machines remains unknown.” This means that people could be excluded from refugee programs just because the machine determined—inaccurately—that their DNA did not match their family member’s DNA.
DHS and USCIS acknowledge that “DNA collection may create controversy.” One USCIS employee advocated for “DHS, with the help of expert public relation professionals,” to “launch a social conditioning campaign” to “dispel the myths and promote the benefits of DNA technology.” Another document feared that “If DHS fails to provide an adequate response to [inquiries about its Rapid DNA Test Program] quickly, civil rights/civil liberties organizations may attempt to shut down the test program."
However, the real issues with expanded DNA collection—and the issues these documents don’t answer—are whether DNA collection is really necessary to solve the challenges inherent in proving refugee entitlement to benefits; what standards and laws will govern expanded federal, state and local DNA collection and subsequent searches; how DNA will be collected, stored and secured; who will have access to it after it’s collected; and what processes are in place to destroy the DNA sample and delete data from whatever database it’s stored in after it’s served the limited purpose for which it was originally collected. Without answers to these questions, no amount of “social conditioning” can convince those concerned about privacy and civil liberties that expanded DNA collection is a good idea.
2. However, even the FBI's procedures haven’t prevented fraud and abuse at labs. And as other USCIS documents note, according to the Department of State, security and chain of custody of the DNA sample have been issues in the past. Even “accredited labs are rife with problems.”
3.DNA.gov defines likelihood ratio as “The ratio of two probabilities of the same event under different hypotheses. In DNA testing often expressed as the ratio between the likelihood that a given profile came from a particular individual and the likelihood that it came from a random unrelated person. Note that in this case the likelihood of each event does not add to give 1 (100% likelihood) as it does not incorporate the possibility of error or that the profiles came from twins or other near relatives.”
Jennifer Lynch is a staff attorney with the Electronic Frontier Foundation and works on open government, transparency and privacy issues as part of EFF’s FOIA Litigation for Accountable Government (FLAG) Project.