DHS must exercise greater transparency about the use, testing, and disposal of biometric information collected in the immigration context.
On September 11, 2020, the U.S. Department of Homeland Security (DHS) announced a proposed rule that will substantially increase the U.S. Citizenship and Immigration Services’ (USCIS) collection and use of biometrics from migrants and U.S. citizens.
Although agencies have long collected biometric data, such as fingerprints, facial imaging, and DNA, the proposed rule will significantly expand the population from which USCIS and other agencies collect biometrics, as well as the types of biometric data that the federal government will collect. Unfortunately, the proposed rule would make these changes without specifying essential information about how the agencies will gather, use, and store the biometrics.
DHS should be more specific and tailored about its use of sensitive genetic material for immigration enforcement. We recommend that DHS increase transparency of how the government will use genetic markers and then limit DNA analysis to those specific genetic markers. We also recommend enacting clear policies on how federal agencies will retain and dispose of biometric information.
The proposed rule would functionally move DHS from a system in which biometric data may be collected from migrants under specific circumstances to a regime in which biometric data must be collected unless DHS provides an exemption. Accordingly, DHS predicts that the number of biometric data submissions from U.S. citizens and other permanent residents will increase by approximately 2 million annually.
The proposed rule also would remove several existing limitations on biometric data collection from migrants, including those preventing collection from individuals under 14 years of age and presuming the existence of good moral character for certain self-petitioners under the Violence Against Women Act. Furthermore, the new definition of biometrics in the proposed rule includes previously unused modalities such as iris prints, face prints, and voice prints, as well as so-called DNA partial profiles, which result from samples where pieces of genetic information are missing. Finally, the rule would permit DHS to “require, request, or accept DNA test results” from migrants, permanent legal residents, and U.S. citizens as proof of a purported genealogical relationship.
Among the many forms of biometric surveillance included in the proposed rule, DNA is particularly sensitive because of the ways in which it encodes protected health information and genealogical relationships beyond the profiled individual. Yet the proposed rule leaves considerable ambiguity surrounding the collection, use, and retention of DNA, raising serious questions about the process and ethics of the proposed rule.
For example, the way that the rule purports to give “special treatment” to DNA evidence by distinguishing “raw,” unanalyzed DNA from “DNA test results, which include a partial DNA profile,” is problematic. Raw DNA—the physical sample an individual provides for testing—would only be kept for the time needed to obtain test results, but DNA test results, including partial DNA profiles, would be retained and used in the same manner as other biometric modalities—including to “perform any … functions necessary for administering and enforcing immigration and naturalization laws.” But this distinction does little to clarify the actual information that DHS plans to collect and how it and other federal agencies will use those data.
DHS defines a “DNA test result” as a testing entity’s “ultimate scientific conclusion … as to the claimed genetic relationship” based on a comparison of two partial DNA profiles, yet the proposed rule does not identify what type of information will be contained in the profiles themselves. Importantly, the rule does not exclude the possibility that DNA results could include whole genome or whole exome sequencing, making any distinctions in the treatment of “raw DNA” and “DNA test results” meaningless.
Although the agency states that it currently profiles between 16 and 24 genetic markers for genetic relationship testing, it neither specifies those markers nor limits their future analysis from including a much more expansive profile. As the cost of whole genome sequencing plummets, it may become commonplace for DNA test results to include whole genome sequencing, enabling probes for genetic markers of interest. DHS claims that the test to confirm genetic relationships “does not reveal medical or hereditary conditions,” but it provides no such assurance for the markers contained in partial DNA profiles, which may be retained and shared alongside the test results and could be used to conduct other, unrelated “tests.”
In addition, although DHS claims in the preamble to its proposed rule that test results would only be used for the “original purpose of submission,”—that is, proving a genealogical relationship—the text of the proposed rule itself contains no such limiting language. Instead, it permits DHS to “store and … share DNA test results, which include a partial DNA profile, for immigration adjudication purposes or for law enforcement purposes.” This kind of sweeping language is alarming.
Genomic science is evolving rapidly, and there is much we still do not know about the information contained in each genetic marker and how these markers relate to one another and transcend generations. These are complicated technical questions of science and ethics that require thoughtful deliberation, a robust plan for biometric data security, and regulations on secondary uses of genetic data.
Given the seriousness of these issues, it is troubling that DHS released such a sweeping yet vague proposal with only 30 days for public comment. This was a short window for the public to process the 85-page proposed rule, a document which—in spite of its density—provided no precise details on the process or protection of genetic data.
Moving forward, DHS must specify how it will collect, test, use, and store individuals’ DNA for the purposes of immigration adjudication and enforcement. The agency should limit its use of DNA to the analysis of particular loci (genetic markers), be transparent about which loci it uses and for what specific purposes, and put in place clear policies on the retention and disposal of this sensitive information.
DNA is only one part of a broader biometric surveillance program that is expanding each year to include millions more non-citizens and U.S. citizens. When genetic information is included in multimodal, interoperable databases alongside other biometric, biographical, and social media data, the agencies holding that information have an obligation to protect these data and precisely define the parameters of their use. DHS’s proposed rule falls far short of this obligation, and future rulemaking should provide greater precision and transparency to ensure more ethical biometric governance.
