Give me your tired, your poor — and your DNA

“Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.” 

And also, give me your DNA. 

One hundred sixteen years after the patriotic poet Emma Lazarus’s words were etched onto the base of the Statue of Liberty, we as a nation have moved to warehouse en masse the molecule that many consider an integral component of a person’s unique self, DNA.

The Department of Justice (DOJ) has released a new proposed rule to facilitate collection of DNA from all migrants detained at our borders, including children, for the federal criminal database. The move comes in an effort to identify criminals among the migrants that cross our southern border. However, its sheer enactment presumes that all migrants are or will be criminals, rather than the “tired,” “poor,” and “yearning” families that comprise the majority of Central American migrant families.

Migrants are not de facto criminals. Some might be, but treating all migrants as criminal suspects by taking their DNA for a criminal database is tantamount to creating a surveillance database of one sect of the American population.

Back when the use of DNA was in its infancy, some brilliant scientists recognized that storing DNA data on convicted criminals would help solve previously unsolved crimes.

As it turns out, DNA data collected from arrested (but not convicted) people can also solve crimes, while storing that data can also assist in solving future crimes.

In 2008, the federal law that governs the Combined DNA Index System (CODIS) changed to allow collection of DNA from federal arrestees and also from immigrant detainees.

In 2009 when the law was implemented, immigrant detainees were rarely legally processed as criminals. This is because crossing the border illegally is a minor offense, and many detainees present themselves at the border for asylum.

Back then, it was exceedingly expensive to consider collecting DNA from the hundreds of thousands of detainees. Moreover, processes were not in place to make it work.

Immigration officials would have needed to procure DNA samples from people who spoke another language and send these samples to the FBI to be included in a database that had strict requirements for uploading the sensitive DNA data. It would have necessitated extensive training and infrastructure to accommodate all those samples.

On the immigration front, DNA collection didn’t make sense – traditional fingerprint databases are far more efficient for detecting repeat border-crossers. Sending DNA to the FBI was a one-way ticket, by law, with privacy protections preventing the sharing of DNA data with other agencies, including the Department of Homeland Security (DHS). For these reasons, the attorney general at that time provided an exemption for collecting DNA from detainees.

Now, with immigration at the center of the U.S. political agenda, some of this has changed. Migrants at the U.S. southern border are processed as criminals under a zero-tolerance policy. The growth of and technological improvements to CODIS in the past decade have demonstrated its increased capacity to solve crimes.

The Rapid DNA Act of 2017 makes it possible to expedite processing DNA outside of laboratories. And this year’s pilot program to use rapid DNA instruments at the border has shown success in detecting fraudulent biological relationship claims.

The DOJ’s proposed regulation will allow cooperation between the FBI and DHS to enable the DNA sample procurement and cross-agency communication necessary to overcome some of these obstacles. Fingerprinting is still faster and cheaper for detecting repeat border-crossers, but rapid DNA will eventually catch up and the cost will continue to come down. 

Americans must be mindful of the principles behind this proposal, which is open for public comment until Nov. 12. Some migrants might be criminals, wanted for prior crimes, as are some of the people that walk into any bus station or department store each day. So yes, collecting DNA from migrants will be useful in solving both past and future crimes.

As the late U.S. Supreme Court Justice Antonin Scalia reminded us in 2013 when he opposed the collection of DNA from arrestees, the implementation of vast collection of DNA could have far-reaching ramifications:

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Collecting DNA from select groups of non-criminal migrants skews the criminal database to be comprised of primarily minorities. The justice system is already skewed, with more people of color in CODIS. If the goal is to grow the database by collecting DNA from innocent people to solve crimes, then a universal DNA database of all Americans and visitors would be far more equitable. A universal DNA database could have oversight, an ethics board to consider cases and appropriate use, and it would certainly solve more crimes. 

If we as Americans are uncomfortable with a universal DNA database, then let us instead embrace our tired, poor and yearning fellow humans and return to solving crimes through our competent police investigations, rather than through broadening DNA data acquisitions.

And let us remember these words of wisdom from Dwight Eisenhower: “A people that values its privileges above its principles soon loses both.”

Sara H. Katsanis is an assistant research professor of pediatrics at Northwestern University Feinberg School of Medicine. She also is a researcher at Stanley Manne Children’s Research Institute at Ann & Robert H. Lurie Children’s Hospital of Chicago.