Biden Is About to Hand Over a Vast and Unconstitutional DNA Database to Trump

As Donald Trump’s return to the White House looms, dismantling the most dangerous weapons in the arsenal of executive power should be the Biden administration’s highest priority for its last days. The most obvious of these relate to the president’s war-making powers, particularly authority over nuclear deployment. But there is another apparatus of coercion that will be at Trump’s fingertips, one which has been neglected in the conversation about what a fully realized authoritarian regime might look like in the United States: the vast national digital surveillance infrastructure and, most crucially, its broad and continually expanding genetic surveillance capabilities.

Last May, my organization, the Center on Privacy & Technology at Georgetown Law, published Raiding the Genome, a new report exposing the massive DNA collection program being run by the Department of Homeland Security (DHS). We found that over the last four years, Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) took DNA from over 1.5 million people. This is nearly 50 times the number of samples they collected in all preceding years combined, an increase of around 5,000 percent.

The reason for this radical increase is a change that the first Trump administration made to the rules that govern DHS’s DNA collection powers. The old rules gave DHS some discretion to limit the size and scope of its DNA collection program according to the department’s operational priorities and resources. Under the new rule, which was finalized at the end of 2019 and went into effect in 2020, DHS is required to take DNA from anyone the agency detains, even very briefly. In the immigration context, “detention” can mean anything from brief delay at an airport to months or years of incarceration, and it can happen to anyone whom a single ICE or CBP agent thinks might be in violation of immigration laws (something about which ICE and CBP agents are often wrong, as evidenced by their track record of deporting U.S. citizens).

When President Biden took office, his administration could and should have repealed the new rule. Instead, the DHS moved forward full force to implement it. In June of 2022, officials in ICE’s Boston field office informed the Center on Privacy & Technology that the new policy had “been 100% deployed to the field for about two years.”

After DHS takes a person’s DNA, the FBI extracts from it an individualized genetic profile and adds it to the national database that police use for criminal law enforcement. The original samples are retained and stored indefinitely, and the legal framework limiting what the federal government can do with those samples is extremely weak.

This should shock the public conscience for several reasons.

First, the government is targeting migrants, a vulnerable and politically marginalized group, composed predominantly of people of color, and using them to run an experiment in mass biological surveillance. ICE and CBP are exploiting the radical power imbalance inherent in every interaction a person has with immigration authorities, while using deception and intimidation to get people to submit to DNA collection. The people we interviewed for our report — individuals who had their DNA taken and lawyers who represented those who did — told us that ICE and CBP often do not even inform people when they take their DNA. As a result, people often assume the swab is a drug test or a COVID test. In some cases, officials directly threaten people or lie outright about the purpose of the swab. Using these techniques, DHS is compelling thousands of people to hand over their genetic material every day and using their samples to build a massive genetic database dominated by profiles from Black and Brown communities.

Over the last four years, Immigration and Customs Enforcement and Customs and Border Patrol took DNA from over 1.5 million people.

Second, DHS’s program operates a lot like, and will incentivize, a kind of genomic stop-and-frisk, as a wide array of local, state, federal and even international law enforcement agencies now have access to the DNA profiles of hundreds of thousands of people who were forced to give up their genetic material without due process and without any criminal law justification. The more that police rely on a genetic database in which people of color and noncitizens are disproportionately represented, the more law enforcement resources will be spent in communities where there are already well-documented patterns of violent and racist policing. In many jurisdictions, police are also directly entangled with immigration enforcement, doubling the threat to Black and Brown immigrant communities. There is a real risk that in those places, police will assume the authority to take DNA from people on behalf of immigration authorities. Florida has already passed a law essentially requiring this.

Finally, this program is unconstitutional under the Fourth Amendment. The only limitation the new regulations impose on DHS’s power to take DNA from someone is that the person has to first be “detained.” But DHS doesn’t have to get approval from any independent arbiter to detain someone. They just have to have some level of suspicion that a person might have violated immigration laws. This is a key reason why it is so much faster for the government to build the DNA database using immigration powers as compared with criminal policing powers. Since there is no system for reviewing each decision made by DHS to detain someone, the DNA collection program does not meet the minimum standard articulated by the Supreme Court in Maryland v. King, a 2013 case which permitted police to take DNA based on an “arrest supported by probable cause to hold for a serious offense.” Maryland v. King has been widely derided for its reckless legal reasoning, but DHS’s program does not pass even the very permissive test in that case.

Unfortunately, DHS’s egregious abuses and constitutional violations represent the program’s minimum threats. DNA is the single most sensitive form of personal information. It can reveal a person’s entire genetic makeup and hereditary background (which includes information that can be correlated with race and ethnicity), their biological sex and other physical traits, even their propensity toward certain diseases. And, of course, DNA can be used to establish familial relationships. The government only needs samples from a small fraction of a given population in order to establish broad genetic surveillance over that population.

It is impossible to understand the meaning and potential consequences of DHS’s DNA collection practices without understanding how deeply the racialization of immigrants is embedded within the history of U.S. immigration policy. From the 1875 Page Law and Chinese Exclusion Act which targeted Chinese, Japanese, and other Asian laborers, to the internment of over 100,000 people of Japanese ancestry in concentration camps during World War II, to NSEERS — the post 9/11 program which subjected people from predominantly Muslim countries to surveillance and interrogation — immigration powers have often been the vehicle by which the federal government has implemented policies of racialized oppression. This is the historical genealogy of the two policies which most defined Trump’s first term — the family separation crisis and the “Muslim ban.”

Against that historical backdrop, the character of our current political moment makes the threat of a database like the one DHS is helping to build terrifyingly vivid. The president-elect, whose first administration was responsible for the creation of the DHS program, has been openly expressing a eugenicist worldview for over a decade. In one campaign speech last year, he asserted that that “immigrants are poisoning the blood of our country,” and during an October talk show appearance he declared, “we’ve got a lot of bad genes in our country right now.” Imagine the genetic material of tens of millions of people in the hands of an executive who has come to power using this rhetoric. Imagine federal immigration police, armed with DNA collection kits, following the orders of a president who explicitly envisions executive authority as beyond any legal restraint.

President Joe Biden made an existentially dangerous mistake in bringing Trump’s scheme for a federal DNA collection squad to life. Before Inauguration Day, he should terminate the program and order the deletion of database profiles created under it, as well as the destruction of any retained genetic samples. No matter who the president is, the government should not be allowed to engage in global biological surveillance of people in this country. Based on the findings of our research, it could not be clearer that such comprehensive surveillance is exactly what the DHS program is intended to accomplish. It should be something that everyone, regardless of other political commitments, can see the need to resist. Every person’s privacy, security and civil rights are implicated by this program, whether or not their own DNA ever ends up in the database. Never has the need for solidarity been so literal. The only way to stand up for yourself in the face of mass genetic surveillance is to stand up for everyone else.