Hitting the Books: Widespread DNA testing could intensify American racism
Excerpted from Cyber Privacy: Who Has Your Data and Why You Should Care (BenBella Books; October 2020)
WHEN THE PRESIDENT SAYS “SEND HER BACK,” WHO EXACTLY DOES HE MEAN?
DNA information raises special concerns, and those concerns are accelerating as the use of at-home DNA tests is on the rise. Ever since the atrocities of World War II, European countries have recognized the ways in which collections of genetic information can be misused. Much of the rest of the world has asked itself the question, “How could ordinary people in Germany have supported the Nazi genocide agenda?” Often, the unstated subtext to that question is, “I wouldn’t have done that,” or “It couldn’t happen here.” And yet, in July 2019, President Donald Trump tweeted that four American Congresswomen of color—two of them Muslim, one African American, and one of Puerto Rican descent—should “go back and help fix the totally broken and crime infested places from which they came.” When reporters asked White House counselor Kellyanne Conway to explain the president’s tweets, she demanded that the reporter, who was Jewish, reveal his ethnicity as a condition of answering his question. As Trump supporters at his rallies echoed his tweet, chanting “send her back” about Minnesota representative Ilhan Omar, a broad swath of the American public was starting to understand how it was possible that a charismatic, autocratic populist leader could whip the populace into a frenzy of us-versus-them outrage and lead people who were easily swayed down a path from ethnic and religious hatred toward violence. It reminded me of a conversation I’d had with a friend in November 2016. A naturalized US citizen and suburban soccer mom who was born in a Latin American country and adopted as a baby by a US family, she was on the verge of tears with worry that the incoming Trump administration would attempt to strip her of her citizenship and deport her to a country she had never known—not primarily because she was naturalized, but because her heritage was Hispanic and her skin color was brown.
It wasn’t hard to imagine how DNA information could play an insidious role in a resurgence of racial discrimination in the United States. We’re a nation less than a lifetime removed from the official dismantling of Jim Crow—and considerably less than a lifetime from the era when desegregation laws were put into full force and effect. Voting rights are being rolled back as states that had once been under consent decrees for past racial discrimination at the voting booth have emerged from those orders only to institute stringent new ID requirements for voter access, coupled with sweeping purges of voter rolls—measures that, in the past, have been proven to have a racially discriminatory impact.
Only two months before Trump’s “go back” tweets, the US Department of Homeland Security had announced that it planned to begin DNA testing of individuals at the border: not just those apprehended for the misdemeanor of crossing illegally or overstaying their visas, but also for asylum seekers hoping to take refuge in the United States. The ostensible purpose of the testing is to ferret out misleading statements of asylum seekers and immigrants who claim to be family but whose relationship is based on affection, or convenience, rather than blood. Immigration hawks contend that migrants coming across the border with Mexico pretend to be families in order to take advantage of rules that often result in family groups being released into surrounding communities more quickly than adults traveling alone. The tests, which would be administered to migrants at ports of entry and at the border—in other words, to those crossing legally and without papers—raise a host of privacy fears. Among them: the tests involve collecting DNA from children who cannot give legal consent; the tests don’t take into account meaningful ties of blood and affection that fall short of biological parentage; because the tests are administered as a condition of admission to the country, they are inherently coercive; and by using the same genetic markers that are commonly used for crime-scene testing, migrants who provide DNA samples to prove family relationships for immigration purposes may find their DNA funneled into databases that are used for criminal investigations in the future. Currently, US officials don’t have a reference database of DNA of persons who’ve never been suspected of a crime; this could be a move toward changing that, and it’s a move that focuses on immigrants, regardless of legal status. It isn’t clear that all of these fears will be realized; DHS officials have said that DNA testing for immigration purposes will not be incorporated into law enforcement reference databases. But the mismatch between biological proof of parentage and legitimate bonds, ranging from adoption to affection, raises opportunities for the kinds of misuse that led Cold War–era officials to doubt the legitimacy of familial claims by Chinese immigrants to the United States. By October 2019, a senior official in DHS announced the administration’s continued interest in eliminating birthright citizenship—guaranteed by the Fourteenth Amendment as one of the corrective measures to right the wrongs of slavery—and his belief that this could be accomplished by mere executive order.
That same month, DHS announced what has been described as an “immense expansion” of DNA programs, as it prepared to begin DNA testing of tens of thousands of people who were in immigration custody, and enter those DNA results into national criminal DNA databases. Previously, the FBI’s Combined DNA Index System, or CODIS, database consisted primarily of samples from persons arrested, charged, or convicted of serious crimes. This new collection would amount to the creation of a massive reference database of DNA samples from people, including children, who aren’t under suspicion of being connected to the types of serious crimes that have been the defining feature of law enforcement DNA databases in the past. The irony, of course, lies in the substantial body of research demonstrating that immigrants commit crimes at lower rates than native-born US citizens.
The concerns about the use of DNA information are real, and creating widespread reference databases of targeted groups raises a host of concerns. At the same time, DNA can provide invaluable evidence to support conviction or exoneration in a criminal case. The same technology raises different privacy issues in different circumstances. On the one hand, the widespread collection being undertaken at the border, for legal and undocumented immigrants, raises serious questions about racial profiling, threshold for collection, and the risks of coercion and challenges of meaningful consent. On the other hand, when police are investigating serious crimes, like the recently solved Golden State Killer case, it isn’t clear that it makes sense to require a warrant based on probable cause before police can search a commercially available database, or even collect items from the trash bin that contain the suspect’s DNA. Limiting government collection to individualized suspicion would help protect privacy, and restricting searches of information to instances in which a judge has signed a law enforcement warrant isn’t a cure-all, or even necessarily an effective approach. It would prevent law enforcement from accessing DNA data for the next Golden State Killer investigation. The wide-ranging examples of government use of DNA illustrate the fact that, if the government is allowed access to DNA data, it’s necessary to impose stringent restrictions, overseen by internal authorities as well as by external, independent bodies, to make sure that the information isn’t misused. Saying “get a warrant” for every type of personal data that could be misused amounts to taking an easy, intellectually sloppy way out, providing the false appearance of privacy protection while undermining legitimate security goals. The more meaningful, difficult, and necessary policy work has to be in defining new restrictions that will define when, why, and how government can access that data; what the permissible and impermissible uses are; how compliance will be overseen; and what the consequences will be for the government if it mishandles the information. The authors of the Federalist Papers couldn’t have imagined the extent to which members of Congress have abandoned their Article I authorities in favor of devotion to their political party. So far, however, the continued vigilance of journalists, citizens, activists—and the judges and politicians willing to place principles before partisanship—has continued to surface wrongdoing when it arises and provide the mechanisms to protest and combat it.
Despite extraordinary overreach at the border, despite threats to persecute political enemies, there are still legitimate and pressing national security and law enforcement challenges, and there are legally and ethically sound reasons why government needs to have data collection and analysis tools. As citizens, we should aim to be as well informed as we can about government use of digital data, and to seek out and critically assess credible news information on these topics. Our goal as a society should be to constructively support legitimate government needs while protecting individuals from overly intrusive, or abusive, data collection and use by the agencies charged with intelligence, law enforcement, and other government functions. We should be on guard for intrusion, but sidestep paranoia. The Reagan-era adage about nuclear disarmament is one that still serves well: “Trust but verify” should be the motto of every American wanting to know how their government is using personal data, and how those uses comport with the requirements of the Constitution and the principles of our nation.