The Electronic Frontier Foundation on Tuesday demanded the Trump administration hand over documents regarding its use of DNA tests to verify parent-child relationships among immigrants who cross the U.S.-Mexico border.
Critics say the tests are coercive and invade families' privacy.
EFF filed a Freedom of Information Act complaint in a federal court in San Francisco to obtain information about the Rapid DNA technology which has been in use at an unknown number of border crossings for at least five months.
"Families are presented with consent forms that say that opting out of the Rapid DNA testing could factor into ICE's decision to separate families in immigration detention. This practice is coercive, and does not take into account families with children not biologically connected to parents, like adopted children and stepchildren."
—Electronic Frontier Foundation"Congress has never authorized ICE to conduct Rapid DNA testing on migrant families at the border, yet DHS has deployed this privacy-invasive technology without explaining how accurate the testing is, whether families can challenge the results, or how the program may be expanded in the future," said EFF attorney Saira Hussain in a statement.
According to EFF, DHS rolled out a pilot program for the Rapid DNA testing in May, first subjecting families at seven border crossings to the cheek swab tests which the agency says can reveal familial relationships within just two hours. Adults who are found to be traveling with children who aren't biologically related to them could be prosecuted for fraud.
The tests, which are now part of the U.S. government's standard protocol for processing families who cross the U.S.-Mexico border, do not meet the accuracy standards of accredited DNA labs, the group says. One study done in Sweden found that Rapid DNA test results contained errors 36 percent of the time.
In 2011, as DHS was first developing Rapid DNA tests for its use at the border, the agency had its own concerns about whether the tests would give accurate results, according to a 2013 blog post by EFF surveillance litigation director Jennifer Lynch:
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.
In its complaint Tuesday, EFF demanded DHS turn over information about the number of people whose DNA it has collected, the gene processing tools used to prove relationships, training materials used for the testing program, and the consent forms that are given to families at the time of testing.
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DHS says the consent forms make the Rapid DNA tests "voluntary"—a claim EFF calls "one of the most troubling aspects of the program."
"Families are presented with consent forms that say that opting out of the Rapid DNA testing could factor into ICE's decision to separate families in immigration detention," the group said in a press statement. "This practice is coercive, and does not take into account families with children not biologically connected to parents, like adopted children and stepchildren."
According to Lynch, the fact that the manufacturers of these DNA tests are "aggressively marketing their products to state and local law enforcement agencies across the country" should be of serious concern.
In her blog post, she writes:
[The] real issues with expanded DNA collection [...] 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.
Meanwhile, the ongoing use of DNA testing by immigration and asylum officials has been condemned by international human rights experts.
The United Nations High Commissioner for Refugees (UNHCR) wrote in 2008 that DNA testing "to establish family relationships in the refugee context...can have serious implications for the right to privacy and family unity."
In October, DHS announced its plans to begin using DNA testing on the hundreds of thousands of immigrants who are taken into U.S. custody each year, entering the data into a nationwide criminal database, a move that ACLU staff attorney Vera Eidelman said "alters the purpose of DNA collection from one of criminal investigation basically to population surveillance, which is basically contrary to our basic notions of a free, trusting, autonomous society."