The Department of Homeland Security Is Unlawfully Collecting DNA

During a House Oversight Committee hearing on July 23, Rep. Ayanna Pressley (D-Mass.) grilled Department of Homeland Security Inspector General Joseph Cuffari about his agency’s sweeping DNA collection program. Pressley characterized the practice as “stealing genetic information from children and uploading it to the FBI criminal database.” Pressley was referring to evidence that the Department of Homeland Security sent DNA samples from more than 2.6 million people—including children—to the FBI’s Combined DNA Index System (CODIS), the country’s criminal policing DNA database. “Children as young as four years old have not consented to the collection of their DNA,” Pressley said. “That is a violation of their civil rights and civil liberties.” Cuffari’s response—in which he mused about hypothetical parental consent saying “[u]nless the adult consented on the child …” before trailing off—did little to clarify the legality or morality of the program. Pressley’s questioning brought some much-needed attention to Homeland Security’s expansive and troubling DNA collection program. But her focus on consent is misplaced. This program is a civil rights and civil liberties nightmare, one that consent cannot cure.

Starting after a Trump-era rule change in 2020, the Department of Homeland Security began collecting cheek swabs from just about every person the agency “detains.” The department then sends these samples to the FBI for storage and analysis, and for a DNA profile to be added to CODIS. Once there, it is saved in an index labeled “Offender,” where it is accessible to state, local, and even sometimes international law enforcement for criminal investigations, permanently.

Since 2020, the program has grown at a staggeringly rapid rate. According to a 2024 report published by the Center on Privacy and Technology at Georgetown Law, Homeland Security’s data collection skyrocketed from adding approximately 25,000 individuals’ DNA to CODIS over a 15-year period, to adding that of more than 1.5 million people in under four years. By July, only one year later, the department had added a total of more than 2.6 million people’s DNA to CODIS—marking a nearly 9,000 percent increase in the department’s DNA collection in just five years.

More than 133,000 of those individuals are minors, including at least one 4 year old. Today the Center on Privacy and Technology published an additional report that analyzes Customs and Border Protection’s (CBP’s) own records showing that more than 2,000 of those whose DNA the agency captured are U.S. citizens.

At this rate, by 2034, more than one-third of the people represented in CODIS’s “Offender” index will have been placed there by the Department of Homeland Security. Rep. Pressley is correct in saying this program violates people’s “civil rights and civil liberties.” 

More pointedly: The program is illegal and unconstitutional.

First, in collecting the DNA of U.S. citizens, Homeland Security has violated the terms of its statutory DNA-collecting authority. The statute that gives the department the power to collect DNA is the DNA Fingerprint Act of 2005, passed without debate as an amendment to the bipartisan and popular Violence Against Women Act. That law for the first time extended compulsory DNA collection to people outside the criminal legal context—to “non-U.S. persons” the federal government “detains.” “Non-U.S. persons” generally means people who are neither U.S. citizens nor permanent residents. Collecting DNA from U.S. citizens on the basis that they have been “detained” plainly exceeds this grant of authority. 

But as we have seen in vivid examples recently, the Department of Homeland Security regularly detains and even deports U.S. citizens. It is therefore not surprising, though no less troubling, that the agency has collected thousands of U.S. citizens’ DNA for addition to CODIS. Though the department may have the authority to collect DNA from U.S. citizens who are credibly accused of a crime, the government never brought any formal charges against approximately 865 of these individuals. CBP noted no justification whatsoever for taking at least 40 of these individual’s DNA.

The fact that the Department of Homeland Security regularly exceeds the bounds of its statutory authority in taking DNA from U.S. citizens is possible because of the utter lack of meaningful checks on the department. Since its post-9/11 creation, Homeland Security has always operated without accountability. This absence of checks leads to the next way in which the department’s DNA collection program violates U.S. law: The program is also unconstitutional. 

The Fourth Amendment protects against unreasonable searches and seizures. Warrantless compelled DNA collection is unquestionably a Fourth Amendment search. So, could these searches be deemed reasonable?

The most relevant Supreme Court precedent on the question is Maryland v. King, in which the Court upheld Maryland’s law allowing collection of criminal arrestees’ DNA. Two facets of the Court’s rationale are especially important: (a) the requirement that probable cause justify a criminal arrest, and (b) Maryland’s limited purpose—the state claimed—of “identifying” those in its custody as part of “routine booking procedures.” Neither applies to the Department of Homeland Security’s DNA collection.

First, the “detention” that triggers DNA collection in the immigration context is fundamentally different from a criminal arrest. The King majority repeatedly stressed that Maryland’s law limited police to taking DNA only from people who are arrested based on a finding of probable cause that they committed a serious crime. Homeland Security agents may detain people based on a wide range of standards, from probable cause to mere suspicion—or even no suspicion at all, as in brief border stops. The federal government has said that it considers these low- or no-suspicion momentary encounters, such as secondary inspection at an airport, a “detention” sufficient to justify DNA collection. With the Supreme Court’s Sept. 8 shadow docket order in Noem v. Vasquez Perdomo, anyone—and particularly “anyone who looks Latino, speaks Spanish, and appears to work a low wage job” is vulnerable to being “detained” by the Department of Homeland Security.

Second, there is no independent oversight. In the criminal context, judges check police in the execution of their arrest powers, either preemptively through warrants or subsequently through probable cause hearings. As the Supreme Court has said, “[t]he point of the Fourth Amendment” is that it ensures that the justification for a search or seizure is evaluated for sufficiency “by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” When it comes to the Department of Homeland Security, this vital check is absent. The agency acts as investigator, judge, and enforcer—a structure the Supreme Court has found incompatible with Fourth Amendment protections. As Supreme Court Justice Potter Stewart found in 1971, “prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations—the ‘competitive enterprise’ that must rightly engage their single-minded attention.”

Third, King also made clear that the justification for taking a person’s DNA matters. Compelled collection can’t be based on a speculative interest in future crime-solving. In approving Maryland’s DNA collection regime, the King Court relied on the state’s claim that its interest in DNA lay not in crime solving but in “identifying” the arrestee as part of “routine booking” procedures. Even in 2013, this “identification” rationale was little more than a thin veil obscuring the state’s real interest—crime solving and prosecution. As Justice Antonin Scalia pointed out in dissent, while the state claimed to be focused on “identifying” a person in custody, what it actually described was “searching for evidence that he has committed crimes unrelated to the crime of his arrest.” The majority’s “assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, “ said Justice Scalia, “taxes the credulity of the credulous.”

Nevertheless Maryland clung fast to that veil because, as Scalia noted, the state could not have relied on its interest in solving past (or future) crimes: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

Yet that’s exactly what the Department of Homeland Security’s DNA program allows. Wrapping themselves in King, the Trump administration attempted to justify Department of Homeland Security DNA collection using these very same “identification” interests. During the 2020 rulemaking process, the Department of Justice claimed “the specific governmental interests supporting the use of the DNA technology” on immigration detainees to be “simply that of identification”: to “process and identify the persons ... they must take into custody” and to make decisions about whether to continue detention or release the individual and under what conditions, all on the theory that knowing what “hits” the person’s DNA had in the database would inform these decisions. The Department of Justice cited directly to King for each rationale. But if the claim of needing DNA for “identification” is strained in the criminal context, in the context of immigration enforcement, it is nonsense.

To start, the reality is that, given current technology and processes, the Department of Homeland Security is unlikely to get any meaningful information back about a person whose DNA the agency takes quickly enough to assist in making any of the decisions about custody, detention, and release they claim to want it for. Technological developments may obviate this problem in the future, but even so, there is no reason to believe that taking DNA from people the Department of Homeland Security detains will be an efficient means of establishing the identity of those in department custody (because the vast majority of them have no prior connection to criminal activity within the U.S.). What’s more, this rationale would explain only a small part of what the government is doing here. Even in an imagined future where the federal government has a reliable genetic database and the means to make DNA testing an efficient way to identify people in immigration custody, the government could satisfy its identification interest simply by running searches against CODIS at the time of apprehension. But that’s not what the government does nor seeks to do here. Instead, after creating a profile from the DNA the department collects, the government not only runs a search against the information already in CODIS but also enters the person’s profile into the database to be searched in perpetuity, for the specific and sole purpose of future criminal investigations.

The inclusion of a 4-year-old’s DNA in CODIS starkly reveals the implausibility of the “identification” rationale. Unless that child’s genetic material has already turned up at a U.S. crime scene, the only conceivable purpose for collecting and retaining it is to surveil that individual indefinitely.

That is not identification. It’s preemptive criminalization.

So, agents conducting this program are violating the Fourth Amendment. As Rep. Pressley and Inspector General Cuffari discussed, the government often attempts to sidestep Fourth Amendment constraints by claiming consent. After all, Fourth Amendment rights can be waived, and people can consent to searches that otherwise would be unlawful. But the hallmark of consent is voluntariness, and there’s no way people on the sharp end of immigration enforcement could ever voluntarily consent to this kind of search—whether they’re 4, 40, or 104. 

Those who have been subjected to Department of Homeland Security DNA collection reportedly experience confusion or intimidation. Neither experience yields voluntary consent for a search. 

The first group reports not understanding what has happened. Many think the swab is a COVID test. One client of Texas nonprofit RAICES, for example, reported that the CBP agent who took her sample told her it was only to “check for illness.” Deception of this sort may invalidate any purported consent.

Others understood the swab was for the purpose of collecting DNA but felt intimidated, even terrified, and unable to question or resist as a result. CBP agents have used the threat of deportation and detention to coerce compliance. One advocate working at the southern border reported to the Center on Privacy and Technology that during the period when Title 42—Trump’s “Return to Mexico” policy—was in place, she toured CBP border facilities and asked what happens if someone doesn’t consent to DNA collection. The CBP agent leading the tour said, “If they don’t consent we send them back.” After the end of Title 42, she reported people being told that individuals who don’t consent to DNA collection would be detained instead of released.

Indeed, individuals interacting with federal immigration agents have no real option to resist. Federal law—34 U.S.C. § 40702—authorizes government agents to use “such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate,” and makes refusal a crime. CBP has said the agency “will not use force to effectuate CODIS DNA collection,” but it will refer people who don’t comply for prosecution.

Conditions rife with coercion like these could never yield voluntary consent. In 1968, in Bumper v. North Carolina, the Supreme Court considered a related question. In Bumper, the suspect’s grandmother allowed officers to search her home after one of them told her, “I have a search warrant.” “Go ahead,” she responded. The officers in fact had no warrant. The prosecutor later argued they didn’t need one—it was her consent that authorized the search. But “[w]hen a law enforcement officer claims authority to search a home under a warrant,” the Supreme Court said, “he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion.” And “[w]here there is coercion there cannot be consent.”

The Department of Homeland Security’s DNA collection program is still largely a black box. Congressional oversight is ongoing: In addition to Pressley’s questioning, Sen. Ron Wyden (D-Ore.) recently issued a letter to Homeland Security Secretary Kristi Noem and Attorney General Pam Bondi raising “serious concerns” about this “chilling expansion of DNA collection” and asking a number of vital outstanding questions. Wyden, for example, asked what the government’s real interest is in collecting and retaining DNA from noncitizens in the course of immigration detention and enforcement, how Department of Homeland Security (DHS) “officials determine when DNA data collection is necessary” and how they “confirm if a person they have detained is a noncitizen[,]” how often “DNA collected by DHS, without judicial authorization, [is] being used in criminal investigations and prosecutions[,]” and whether the government has any “process in place to expunge DNA and related information stored in CODIS” once the department collects it, as well as a number of other important questions. We still do not have answers.

These inquiries are important, and, in the absence of congressional action to put an end to this abuse, they must continue. Indeed, at the Center on Privacy and Technology, we are continuing to press the agency for information through Freedom of Information Act requests and litigation. But we already know enough to state plainly: This program is illegal, unconstitutional, and deeply corrosive to civil rights and liberties. No amount of coerced “consent” can make it otherwise.