Department of Justice expands DNA collection to include detained immigrants

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The US Department of Justice has proposed amending regulations requiring DNA to be collected from non-U.S. citizens detained at borders and ports of entry. The announcement comes less than two weeks after the FBI announced it intended to negotiate a sole source contract with HOV Services Incorporated / Exela Technologies, for a one year maintenance agreement for the firm’s TurboScan System.

TurboScan is a software suite used exclusively by the FBI to scan the FD-936 form that’s submitted for DNA sample submissions that are uploaded into the National DNA Index (NDIS). The announcement was also three days after the award of the contract, which is a continuation of the previous maintenance agreement with the same company.

“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,” said Deputy Attorney General Jeffrey A. Rosen. “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.”

Under the rule change, the Department of Justice will ensure that all federal agencies—including the Department of Homeland Security (DHS)—are in full compliance with the DNA Fingerprint Act, which provided the Attorney General exclusive authority to draft regulations to authorize and direct any federal agency 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.”

The amendment would strike a provision authorizing the DHS secretary to “exempt from the sample-collection requirement certain aliens from whom collection of DNA samples is not feasible because of operational exigencies or resource limitations,” the notice said, and instead “restore[ing] the Attorney General’s plenary legal authority [vested in him by the DNA Fingerprint Act of 2005] to authorize and direct all relevant federal agencies, including [DHS],” to collect the data. to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States.”

In December 2008, the Department of Justice published a final rule implementing the collection of DNA samples under the DNA Fingerprint Act which included a provision that permitted DHS to exempt itself from collecting DNA samples from its non-US citizen detainees by consulting with the Attorney General. The new rule change announced Monday “would eliminate that exception, and restore to the Attorney General the plenary authority to authorize and direct federal agencies’ DNA collection efforts that Congress vested in him on an overwhelmingly bipartisan basis in the DNA Fingerprint Act,” the Justice Department stated.

As a matter of background, ever since the DNA Fingerprint Act became law, the FBI has “built a high-throughput DNA sample processing infrastructure through its Combined DNA Index System (CODIS),” which is a database that’s deemed essential to federal, state, and local law enforcement investigations. All fifty states, the District of Columbia, Puerto Rico, and federal law enforcement participate in the national sharing of DNA profiles through CODIS. “The FBI also has consistently reduced the operational burden for individual federal agencies to collect DNA through technological enhancements,” the Justice Department said.

According to the Justice Department, in advance of the rule change it had been working with DHS “to initiate a pilot program for the collection of DNA from non-U.S. persons detained by DHS,” and that “as with all other DNA samples that federal agencies collect under the authority of the bipartisan DNA Fingerprint Act, the DNA samples that DHS collects from its non-United States person detainees will be entered into CODIS.”

The Justice Department said that “the FBI’s laboratory has the capacity to handle the increased input from DHS, and its capabilities can be scaled up to meet additional capacity. The FBI will provide DHS with the DNA collection kits, analyze the samples, and ensure that law enforcement agencies use the results in accordance with the FBI’s stringent CODIS privacy requirements.”

The TurboScan system that’s used to scan the barcoded National DNA Database Entry Form (FD-936) that’s submitted for DNA sample submissions that are uploaded to NDIS – which is maintained by the FBI’s Federal DNA Database Unit – “is considered a critical system for the FBI,” the Bureau said in announcing the sole source contract.” The FD-936 form contains a person’s detailed fingerprint and other personally identifiable information that’s matched with the individual’s DNA.

“HOV Services Inc./Exela Technologies is the only provider of this service as they are the sole provider of the TurboScan software package,” the FBI said, noting that “HOV Services Inc./Exela Technologies is the only company that will be able to modify the configurations as they are the only company that provides the TurboScan software.”

The FBI added that, “Based on market research conducted and contacts made with knowledgeable individuals within the government and related industry, it has been determined the FBI’s requirement can only be provided by HOV Services Inc./Exela Technologies, as no other vendor is capable of providing the TurboScan software that is needed for direct support of the FBI’s mission and respond on-site within a one hour notice.

The Federal DNA Database Unit became operational in December 2000 as the Federal Convicted Offender Program (FCOP). Required by the DNA Backlog Elimination Act of 2000, officials from the Bureau of Prisons and United States Probation collect and submit to the FBI DNA samples from individuals convicted of murder and other qualifying related homicide offenses; sexual abuse; peonage and slavery; kidnapping; and robbery or burglary. The law also directed the FBI to generate DNA profiles for these samples and to enter the resulting DNA information into NDIS, which makes up the third tier of CODIS.

The USA Patriot Act of 2001 added terrorism and crimes of violence to the list of qualifying offenses.

The first big expansion of federal DNA collection though came from the Justice for All Act of 2004, which greatly expanded the list of qualifying offenses to include all federal felony crimes. The two most recent legislative changes, the DNA Fingerprint Act of 2005, and the Walsh Act of 2006, altered the categories of individuals from which DNA samples are required collected. The DNA Fingerprint Act of 2005 includes all individuals arrested on federal felony charges and non-US persons detained under US authority. The Adam Walsh Child Protection and Safety Act of 2006 broadened the scope of sample collections from just convicted federal offenders to include federal arrestees, as well as non-US citizen detainees.

In addition, NDIS includes an index for DNA profiles from relatives of missing persons and known reference DNA profiles of missing children.

In order to comply with all these laws, however, the FBI must be able to process the exponential increase in samples that are being submitted to the FBI, and “requires a preventive maintenance agreement to ensure the successful operation” of the program “and to maintain optimum performance of our optical character recognition software package known as TurboScan that is provided by HOV Services Inc.,” the FBI explained.

The Combined DNA Index System already contains the DNA of 14 million individuals who’ve been convicted of a crime and 3.7 million people who have been arrested.

Under the new rule change, DNA is expected to be obtained from 750,000 immigrants annually, including asylum-seekers. Attorney General William Barr described the DNA as a “genetic fingerprint” that does “not disclose [an] individual’s traits, disorders, or dispositions.”

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