Privacy Rights Group Sues DHS Over ‘Coercive’ DNA Tests at the Border

The EFF argues that DNA collection is a surefire way to violate privacy and human rights.
An El Salvadorian woman and her son stopped by Border Patrol agents.
John Moore / Staff

Privacy advocates are suing the Department of Homeland Security (DHS) to get answers about how the agency is using new technology to collect DNA from migrant families at the border.

In its lawsuit, the Electronic Frontier Foundation (EFF) asked for information about how DHS has deployed its Rapid DNA technology, including "the number of individuals whose DNA had been collected, the accuracy of DNA matches, and the exact gene processing used to identify parent-child relationships." The technology boasts the ability to process DNA samples in 90 minutes or less, and is quickly being adopted by law enforcement agencies. The lawsuit is to compel DHS to release documents under the Freedom of Information Act.


In May, the DHS and Immigration and Customs Enforcement (ICE) began a pilot program, ostensibly to verify biological parent-child relationships for migrant families at the U.S. border with Mexico. A month later, that program expanded to seven different testing locations and became a part of official DHS policy.

Concerns over federal misuse of DNA come amid recent revelations outing many of Trump’s prominent immigration policy planners and advisors as white nationalists, or well-connected to others pushing that ideology. The EFF has been fighting the widespread implementation of this technology for nearly a decade, warning that widespread adoption would both erode privacy and reinforce racist biases in our legal system.

In 2013, EFF surveillance litigation director Jennifer Lynch pointed out that even the DHS had concerns about Rapid DNA testing as early as 2011, and internally said that "prototype equipment may not provide totally reliable results." As a result, the DHS worried that it couldn't "predict how accurate the non-match findings will be since the error rate for the machines remains unknown."

“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 in the group’s press release.

The agency claims the DNA Tests are "voluntary" because of consent forms. However, the EFF claims the consent forms say that opting out of DNA testing could result in negative consequences for the immigrant families the government is detaining and threatening to separate. "This practice is coercive, and does not take into account families with children not biologically connected to parents, like adopted children and stepchildren," the EFF wrote.

In October, DHS announced plans for DNA testing on hundreds of thousands of immigrants held in its detention camps. Vera Eidelman, a staff lawyer with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, told the New York Times that “mass collection 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.”

Since then, the plan has once again metastasized into a larger proposal: now, the Department of Justice wants to collect DNA samples from nearly 750,000 immigrant detainees annually.