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DNA SAMPLING

December 12, 2009

DNA SAMPLING — (Senate – December 10, 2009)

Mr. KYL. Mr. President, I ask unanimous consent that the following letter, which consists of my May 19, 2008, comments on proposed Federal regulations governing the collection of DNA samples from Federal arrestees and illegal-immigrant deportees, be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

U.S. SENATE,

Washington, DC, May 19, 2008.
Re OAG Docket Number 119


Mr. David J. Karp,
Senior Counsel, Office of Legal Policy, Main Justice Building, Pennsylvania Avenue, NW., Washington, DC.

DEAR MR. KARP: I am writing to comment on the Justice Department’s April 18, 2008, proposed regulation for implementing the DNA sample collection authority created by section 1004 of the DNA Fingerprint Act, Public Law 109-162, and by section 155 of the Adam Walsh Act, Public Law 109-248. I am the legislative author of both of these provisions.

Allow me to note at the outset that I have reviewed the proposed regulations and have concluded that they properly implement the authority created by the laws noted above. I do not recommend that you make any changes to the proposed regulations, as I believe that they are consistent with the clear meaning and spirit of their underlying statutory authorization.

The remainder of this letter first comments on the general privacy objections that have been raised by other commenters with regard to the proposed regulations, and then addresses several other criticisms and recommendations that are made in some of those comments.

PRIVACY CONCERNS

The most common criticism leveled against the proposed regulations by other commenters is that the proposed rules pose a threat to individual privacy. The general argument made is that although fingerprints are routinely taken at arrest, DNA fingerprinting is not like ordinary fingerprinting because DNA has the potential to reveal medically sensitive or other private information. This concern usually also is the basis for arguments that the proposed regulations are unconstitutional.

I think that the privacy concern is best addressed by explaining the legal framework governing the operation of the National DNA Index System (NDIS) and the practical realities of DNA analysis.

A number of statutes prescribe privacy restrictions for use of DNA samples. See 42 U.S.C. 14132(b)(3), (c), 14133(b)-(c), 14135(b)(2), 14135e. In general, DNA information is treated like other law-enforcement case file information–its dissemination is prohibited and subject to serious professional and even criminal sanctions. In particular, section 14133(c) of title 42 provides that any person who has access to individually identifiable DNA information in NDIS and knowingly discloses such information in an unauthorized manner may be fined up to $100,000, and any person who accesses DNA information without authorization may be fined up to $250,000 and imprisoned up to one year.

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Lab employees are professionals. The notion that they will violate the laws and regulations governing DNA analysis not only requires one to assume that these employees will jeopardize their careers, but also that they will risk criminal fines and even imprisonment. Such fears are not realistic. Indeed, when arguments were made that such violations might occur during the Senate Judiciary Committee’s consideration of the Justice for All Act in 2004, I proposed an amendment, which was subsequently enacted into law, to increase the penalties in section 14133(c) for misuse of DNA samples. When I consulted with the Justice Department about my proposal, I was told that the FBI had no objection to the amendment because there was no chance that any lab employee would ever run afoul of the provision.

Let us assume, however, that a rogue lab employee were not deterred by professional and criminal sanctions and were determined to use a DNA sample to discover private information. That lab employee would find that it is virtually impossible for him to use the NDIS system to do so.

Developing a DNA profile from a saliva or blood sample involves three broad steps: (1) the DNA is extracted from the sample; (2) the DNA is copied or amplified at one of the sites on the DNA strand from which the profile will be drawn; and (3) the amplified DNA is processed in a genetic analyzer to produce a DNA profile.

Each law enforcement DNA laboratory has a defined number of staff who have access to DNA samples, the identity of the person who submitted the sample, and DNA analysis equipment. This is currently the universe of people who could hypothetically use collected samples to try to violate someone’s privacy. If one of these employees sought to analyze an individual’s DNA to find medically sensitive or other private information, he would run into a series of virtually insurmountable practical problems.

First, the 13 sites at which a DNA strand is analyzed for purposes of entry of a profile into the national database are sites that do not reveal any medically sensitive information. The 13 sites were chosen because the sites do not reveal sensitive information, the sites are relatively stable and do not degrade easily, and the sites tend to demonstrate great variation between different individuals (with the exception of identical twins). Even the American Civil Liberties Union’s (ACLU) May 19, 2008, comment on the proposed regulations, while speculating that the 13 sites may be found to reveal sensitive information in the future, concedes “none of the CODIS loci have been found to date to be predictive for any physical or disease traits.”

So our hypothetical rogue lab employee would need to draw a profile of different sites on the DNA strand in order to discover medically sensitive information. This would be extremely difficult to do. The second step of the analysis–amplifying the relevant DNA sites for analysis–requires the use of specialized reagents and equipment to copy the DNA fragments in question.

Once the DNA is amplified, the DNA is pushed through a column that separates out the DNA fragments. The columns used in the lab serve to duplicate DNA for the specific 13 CODIS sites. So our rogue employee would need to purchase a specialized column for duplicating a different type of DNA. Next the employee would need to obtain different reagents for reproducing the DNA that he seeks. Reagents consist of polymerase, certain chemicals, and DNA primers. A primer is a piece of DNA that recognizes its complimentary DNA on a molecule and attaches itself, allowing that part to be reproduced when the remaining reagents are added. Access to primers is extremely limited–our rogue employee couldn’t just buy them on the internet or from a medical supply store. Primers usually are only available from the DNA researcher who discovered the DNA gene or site in question. These researchers generally have a proprietary interest in their discovery; they do not publish all of the information necessary to analyze that gene and do not give the necessary primers to others. A lab employee is very unlikely to be able to obtain the necessary information and primers to amplify the DNA that he seeks.

Moreover, even if our hypothetical lab employee were able to copy the DNA in question, he would next need to retrofit the DNA analyzer to draw a profile from that DNA. This would require breaking down, reassembling, and recalibrating the lab equipment, and reprogramming the equipment and software to analyze different DNA sites. This is an extremely complex process and requires specialized software that, again, is generally only available from the researchers who identified the gene in question. The lab employees are not trained to analyze any DNA other than at the 13 sites used in CODIS; to analyze DNA used for medical purposes is a completely different specialization that requires the use of equipment that lab employees have no experience using.

Finally, our hypothetical rogue employee would need to figure out how to do this analysis by himself and would need to account for his use of the equipment. DNA analysis of database samples is an assembly-line process that involves different persons carrying out different steps of the analysis. An employee acting alone would need to come in at night and perform all of the steps by himself. Although usually no employees are in the lab at night, the equipment runs through the night. To use the equipment for a different purpose, the rogue employee would need to shut it down, which itself would lead to an inquiry into why the equipment did not perform a programmed analysis at night. Moreover, the robotics and most of the instruments used in DNA analysis have programmed activity logs that record what process was run on the equipment, and employees must log in it to operate the equipment. Any inquiry into why the equipment was not running at night would immediately reveal that a different process was run on the equipment and would reveal who ran that process.

Although it is not completely impossible, it is extremely unlikely that a lab employee would be able to perform all of these steps on his own, and it is virtually impossible that he would be able to do so without getting caught. Suffice to say that although the NDIS database has existed for 10 years and nearly 6 million offender profiles have been added to that database, and although the lab has been conducting analysis of DNA from criminal suspects and victims for 20 years, there has never been one noted case in which a lab employee has ever made an unauthorized disclosure of DNA information. The risk that lab employees will undertake such acts is not substantial enough to merit consideration in a reasoned analysis of the privacy risks posed by the operation of NDIS.

Finally, it bears weighing the virtually nonexistent risk to privacy posed by NDIS against other potential risks to DNA privacy. Many of the arguments about the privacy threats created by law-enforcement DNA sampling and analysis appear to assume that DNA samples and the information within them could not be accessed in any other way. A quick internet search of the words “DNA testing,” however, reveals that there are many private laboratories that offer to the public at large a wide variety of DNA tests for sensitive information. Nor are DNA samples particularly difficult to obtain. Every time an individual spits on the sidewalk, or even drinks from a paper cup and discards it, he leaves a DNA sample behind. Particularly in light of the criminal penalties attached to misuse of the NDIS system, a person determined to analyze another person’s DNA for an improper purposes would find much easier sources of DNA than the samples collected by law enforcement, and would have much readier access to DNA analysis than that made possible by law-enforcement laboratories. The incremental threat to DNA privacy posed by the NDIS system is extremely small.

RESPONSE TO OTHER COMMENTERS

A number of other commenters have offered various criticisms of the proposed regulations beyond generalized privacy arguments. Many of these comments are very similar and appear to have been generated by news stories and notices placed by various organizations and publications. Other criticisms and recommendations are unique to particular commenters. The remainder of this letter responds to those criticisms, first addressing the mass comments and then the arguments of particular organizations and individuals.

Constitutionality

The argument that arrestee and illegal-immigrant DNA sampling violates the Fourth Amendment mostly rests on the privacy arguments that are addressed above. It is beyond argument that the Constitution permits arrestees and immigration detainees to be fingerprinted and searched. If the privacy risks posed by law-enforcement DNA sampling are properly understood, there is no constitutionally significant difference between ordinary fingerprinting and DNA fingerprinting. Both are used for the legitimate purpose of biometric identification and neither poses a significant risk to individual privacy.

The physical intrusion necessary to collect a DNA sample is minor and is commensurate with the other types of privacy intrusions endured by arrestees, who are generally subject to search following arrest. Some commenters cite the 1966 Schmerber decision as a benchmark, and note that the court upheld the drawing of a blood sample in that case because the blood was drawn by a medical professional rather than by a police officer. These commenters neglect to mention, however, that the disposable and sterile pin-prick kits used to draw blood samples for purposes of DNA analysis are much different from and much less medically invasive than the needle-drawn blood samples of 1966. And cheek swabs present even less of an intrusion. Modern DNA sample-collection techniques present less of a privacy intrusion than do the physical searches that regularly accompany arrest.

Presumption of Innocence

Many commenters argue that DNA profiling of arrestees violates the presumption of innocence that attaches to an arrestee before he is convicted of a crime. Arrestees are presumed innocent, but DNA sampling and analysis does not constitute a finding or judgment of guilt. If biometric identification did constitute such a judgment, then the photographs and fingerprints taken at and kept after arrest also would violate the presumption of innocence. They do not, and neither does DNA sampling.

Disparate Impact

A number of commenters condemn the proposed regulations on the basis that a disproportionate number of members of racial minorities may be subjected to DNA sampling. A disparate effect, however, is not the same thing as discrimination and is not unconstitutional or otherwise proscribed. Nor

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could it be. Most laws have some type of disparate effect; it is a rare (if nonexistent) law that affects each racial or ethnic group in the United States in proportion to its percentage of the U.S. population. The proposed regulations are tied an individual’s arrest or his detention on account of his illegal presence in this country; they do not discriminate between individuals on account of their race.

Analysis Backlog

Several commenters complain that adding DNA samples of arrestees and detained illegal immigrants to NDIS will increase the number of DNA samples that the FBI lab or private labs used by the FBI must analyze, and that a backlog of samples may result. The FBI lab and other law enforcement authorities, however, have ample discretion to decide which samples should be analyzed first. These commenters suggest that a backlog of samples may hinder investigations, but a murder or rape for which no suspect has been identified would be hindered more by never collecting a DNA sample from the perpetrator than by collecting that sample and analyzing it after a delay. To the extent that these commenters are concerned about the cost of analyzing DNA samples, they should bear in mind the massive costs of the labor-intensive police manhunts for serial murderers and rapists that would be avoided if the perpetrator could be identified through DNA sample collection, and the enormous costs of crime to its victims and to society as a whole.

Outsourcing

Many commenters suggest that the proposed regulations pose a privacy risk by allowing private contractors to aid in DNA sample processing. These private laboratories are subject to a comprehensive system of regulation, however. They also have a powerful incentive to handle samples properly: a lab that fails to do so will lose its contract and will go out of business.

ACLU Letter

In addition to raising arguments addressed above, the ACLU’s May 19 comment argues that biological samples should be destroyed after analysis. This recommendation is outside the scope of the proposed regulations, and in any event should be rejected. Biological samples need to be retained in case the technology used for analysis is changed and all existing samples must be reanalyzed, something that has happened once already. Moreover, such samples are used for quality control, and for rechecking a purported match to crime scene evidence without taking a new sample from the suspect identified by the match.

The ACLU argues that collection of DNA from immigration detainees will deepen resentment and hostility among ethnic communities living in or visiting the United States. Few things exacerbate tensions between Americans and foreign visitors to this country more severely, however, than the serious crimes committed in the United States by illegal immigrants. Angel Resendiz, the so-called Railway Killer, was in this country illegal and is believed to have murdered 15 people here (and an untold number in Mexico). Santana Aceves, the so-called Chandler rapist and also an illegal immigrant, sexually assaulted half a dozen young girls in their homes in the Chandler suburb of Phoenix in 2007 and 2008. Both cases “deepened resentment and hostility” toward illegal immigrants in this country. And both Resendiz and Aceves would have been identified and their crime sprees likely stopped early had their DNA been taken during one of their earlier deportations. Relations between different groups in this country surely would be bettered rather than worsened has these two men’s names not been permitted to become household words in the communities that they targeted.

The ACLU recommends that the proposed regulations “prohibit comparison of an individual’s DNA profile with anything other than the DNA profiles generated from the crime scene evidence for which she [sic] is suspected unless or until that person is convicted.” This is a proposal to bar the use of arrestee and detainee DNA to make cold-case matches to crime-scene evidence. It is effectively a recommendation to gut the proposed regulations and to abdicate the Justice Department’s responsibility to use the authority created by the DNA Fingerprint Act and the Adam Walsh Act. My floor statement commenting on final Senate action on the DNA Fingerprint Act describes the dozens of rapes and murders that could have been prevented in just one American city had arrestee sampling been in place; I offer it as rebuttal to the ACLU’s argument that the proposed regulations should not permit arrestee DNA to be used to solve cold-case crimes.

The ACLU suggests that the Justice Department reassess the costs and benefits of broad sampling and consider narrower alternatives. “Narrower alternatives” would mean fewer rapes and murders prevented, a cost which alone justifies the proposed regulations.

The ACLU argues that the proposed regulations, by allowing some exceptions to their sampling rules, fail to give individuals adequate notice whether they will be subject to sampling. The proposed rule clearly requires that all federal arrestees and illegal immigrants being deported be sampled. Allowing a few exceptions to this rule for practical and other reasons does not significantly detract from the notice given by the proposed regulations.

The ACLU complains that the proposed rule does not address how to avoid duplicative sampling of the same individual. This is an administrative matter that does not merit attention in the text of the proposed regulation.

The ACLU questions the Justice Department’s estimate of the cost of analyzing and storing DNA samples. The Justice Department’s estimate is comparable to other estimates of the costs of DNA storage and analysis.

The ACLU concludes that Congress “doubtless intended that the regulations would address [legal, privacy, and policy] concerns and would limit the DNA sampling to instances where ….. the benefits outweigh the costs.” I believe that the proposed rule adequately considers these concerns and appropriately exercises the authority given to the Justice Department by Congress.

McLain and Mercer Letter

William McClain and Stephen Mercer, both law professors at the University of the District of Columbia, contend in a May 19, 2008 comment that the proposed regulations should be modified to allow an individual to retain counsel and file a lawsuit before a sample is collected. I urge the Justice Department to reject this recommendation. Any individual wishing to contest the legality of arrestee sampling may challenge such sampling after the fact; the interests at stake are not substantial enough to justify a pre-litigation injunction in the regulations themselves. Such a delay in sampling would also undermine the administration of the proposed system, as it is far easier to collect a sample at booking, when fingerprints and pictures are also taken.

The professors also suggest that the “reasonable means” authorized to collect samples be defined more specifically and be defined in the same way for all agencies collecting samples. The different agencies collecting samples have different means at their disposal and deal with different populations of offenders and detainees; it is appropriate that reasonableness should be defined in the context of each agency and by that agency.

The professors also recommend that all DNA processing agreements with private entities specify that all constitutional, statutory, and regulatory federal law requirements that would apply to government processing also apply to private processing. Such a requirement is superfluous, and in any event is unnecessary in light of the comprehensive regulation of private entities processing DNA on behalf of the Federal government.

Center for Constitutional Rights Letter

Aside from arguments addressed above, CCR argues in a May 19, 2008 comment that the proposed regulations would give Homeland Security staff discretion to “take DNA samples of everyone pulled out of line for questioning at an airport immigration station.” This is an unreasonable reading of the regulations, which exclude from sampling “aliens held at a port of entry during consideration of admissibility and not subject to further detention or proceedings.” The regulation’s “further detention or proceedings” clearly contemplates more than just minor additional questioning at a port of entry.

Alliance for Democracy and United for Peace and Justice et al.

These two groups submitted comments on May 19, 2008 suggesting that the proposed regulations would inhibit speech because DNA samples would be taken from persons arrested for civil disobedience. A person wishing to criticize the government or communicate other messages has many ways of doing so without committing a crime, and if he chooses to commit a crime, he should be prepared to face the consequences of doing so, including booking, fingerprinting, DNA sample collection, and a fine or imprisonment.

National Lawyers Guild–Columbia Law School

NLG suggests in an April 21, 2008 comment that the proposed regulations be amended to expressly bar DNA sample collection from LPRs until they are ordered removed and their appeals are exhausted. LPRs very rarely find themselves in immigration detention, and when they do so, it is overwhelmingly because they have committed a crime–and therefore would be subject to sampling on that basis. The remaining class of LPRs not subject to sampling is de minimis; their situation does not rise to the level of a matter that needs to be addressed on the face of the proposed regulations.

NLG also suggests that, because of the risk that a citizen may be mistakenly detained in immigration proceedings, no illegal immigrant should be sampled unless his nationality is conceded or proved, or in the alternative that no sampling ought to take place until a final order of removal has been entered. This proposal would substantially defeat administration of illegal-immigrant sampling by precluding sampling as part of the booking process. Moreover, cases in which citizens are mistakenly detained for deportation are extremely rare and are almost always corrected very quickly. The few cases that might occur should be dealt with on a case-by-case basis and do not merit attention in the text of the proposed rule.

NLG also suggests that subsection (b)(1) of the proposed rule suggests that “the Secretary of Homeland Security could authorize that which is not authorized by Congress”–

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