The Department of Justice on Monday issued a notice of proposed rulemaking that would restore its authority to direct the Department of Homeland Security to collect DNA samples from non-U.S. persons it detains, a move that would enable DHS to expand its potential uses of the technology.
The authority for the Attorney General to direct DHS and other federal agencies to “collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States,” is contained in a 2005 law, the DNA Fingerprint Act, which received wide bipartisan support at the time. The final rule implementing the bill in 2008 exempted DHS from collecting DNA samples from non-U.S. citizen detainees.
Under the new proposed rulemaking, the DHS exemption would be eliminated.
“The proposed rule change would help to save lives and bring criminals to justice by restoring the authority of the Attorney General to authorize and direct the collection of DNA from non-United States persons detained at the border and the interior by DHS, with the ultimate goal of reducing victimization of innocent citizens,” Jeffrey Rosen, deputy Attorney General, said in a statement. “Today’s proposed rule change is a lawful exercise of the Attorney General’s authority, provided by Congress, to collect DNA samples from non-United States persons who are properly detained under the authority of the United States.”
In early October DHS hosted a background call for media on the proposed rulemaking, saying it would establish a way forward to help it sort out operational and practical issues and phase in the use of the DNA technology.
DHS earlier this year evaluated Rapid DNA analysis technology in a border security application to help weed out fraud in claimed familial relationships for alleged family and partial family units turning themselves in at the border. The department has said the evaluation was successful.
The DoJ and DHS are currently working on a new DNA pilot aimed at detainees. In the prior evaluation of claimed familial relationships, DHS used the DNA samples collected from children and the adults claiming them as theirs to verify a familial relationship.
In the upcoming pilot, the samples that DHS collects of detainees will be entered into the FBI’s Combined DNA Index System (CODIS) database to see if there is a match. The FBI will provide DHS with the sample collection kits for entry into CODIS and analyze the samples. The FBI will also be responsible for ensuring that the use of the results from the DNA checks by law enforcement agencies comply with its CODIS privacy requirements.
The DoJ said that the FBI’s laboratory has the capacity to handle the increased input from DHS and, if necessary, can be scaled up to meet increased demand.