EFF Sues DHS to Obtain Information About the Agency's Use of Rapid DNA Testing on Migrant Families at the Border

The Electronic Frontier Foundation (EFF) sued the Department of Homeland Security (DHS) today to obtain information that will shine a light on the agency's use of Rapid DNA technology on migrant families at the border to verify biological parent-child relationships.

In a Freedom of Information Act (FOIA) complaint filed today in federal court in San Francisco, EFF asked a judge to require DHS to disclose information about the agency's deployment of Rapid DNA systems, including the number of individuals whose DNA has been collected, the accuracy of DNA matches, and the exact gene processing used to identify parent-child relationships. The lawsuit also seeks training materials, consent forms and privacy statements given to families, and locations of DHS's Rapid DNA pilot programs.

According to media reports, DHS, and its component Immigration and Customs Enforcement (ICE), began a pilot program in May to conduct Rapid DNA testing on adults and children presenting themselves at the U.S. border. The purpose of the testing was to find individuals who were not related through a biological parent-child relationship and prosecute them for fraud. The pilot program then grew, with testing at seven locations at the U.S.-Mexico border. In June, DHS indicated that Rapid DNA testing is now part of the agency's policy.

DNA contains an extensive amount of sensitive personal information beyond mere identifying information and has the potential to reveal intensely private details about a person's life. Rapid DNA is an automated system that produces DNA profiles in less than two hours from cheek swabs analyzed by a desktop machine. Rapid DNA testing has been criticized for failing to meet standards used by accredited DNA laboratories, with a Swedish report showing incorrect profiles and problems or errors in 36 percent of tests run on one particular Rapid DNA system.

"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 Staff Attorney Saira Hussain.

One the most troubling aspects of the program is the government's claim that the DNA testing is "voluntary." 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.

"Migrants are facing the very real threat of having their children torn from them indefinitely unless they agree to DNA testing," said Hussain. "Privacy and immigrant rights advocates, as well as the American people, need to know the details behind this program."

Also today, EFF submitted comments opposing the Justice Department's proposed rule to collect DNA samples from nearly 750,000 immigrant detainees annually, including from children as young as 14. The rule proposes to enter the samples into an FBI DNA database, where they would remain indefinitely. The proposed rule equates immigration with criminal conduct, despite several studies that demonstrate no such correlation. With the FOIA lawsuit and DOJ comments, EFF took two steps today to resist the expansion of DNA collection from immigrants. Such collection raises serious privacy and human rights concerns for both immigrants and their families. Transparency and accountability in DNA collection, especially from vulnerable populations, is long overdue.