Taken from Cyber Privacy: Who Has Your Data and Why You Should Care (BenBella Books; October 2020)
WHEN THE PRESIDENT SAYS “SEND IT BACK,” EXACTLY WHO IS HE MEANING?
Information about DNA raises special concerns, and those concerns are accelerating as the use of home DNA testing increases. 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, “How could ordinary people in Germany have supported the Nazi genocide agenda?” Often the undeclared subtext of 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 congressmen of color, two of them Muslim, one African American, and one of Puerto Rican descent, should “go back and help repair totally trashed and crime-infested places. where They came from. “When reporters asked White House Counselor Kellyanne Conway to explain the president’s tweets, she demanded that the journalist, who was Jewish, reveal his ethnicity as a condition of answering their question. As Trump supporters at their rallies echoed his tweet, chanting “send it back” about Minnesota Rep. Ilhan Omar, a wide swath of the American public was beginning to understand how a charismatic and autocratic populist leader could be could turn the population into a frenzy of outrage against them and led people who were easily swept away brought down a path of ethnic and religious hatred towards violence. It reminded me of a conversation I had with a friend in November 2016. A naturalized American citizen and suburban soccer mother who was born in a Latin American country and was adopted as a baby by an American family, was on the verge of tears. with concern that the incoming Trump administration would try 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 the resurgence of racial profiling in the United States. We are a nation less than a lifetime away from the official dismantling of Jim Crow, and considerably less than a lifetime away from the era in which the desegregation laws took effect and effect. Voting rights are being curtailed as states that had once been under racial discrimination consent decrees in the past in voting booths emerged from those orders only to institute new stringent identification requirements for voter access. , along with radical purges of voter rolls, measures that, in the past, have been shown to have a racially discriminatory impact.
Just two months before Trump’s “back” tweets, the US Department of Homeland Security had announced that it planned to begin DNA testing of people at the border – not just people detained for the misdemeanor. from crossing illegally or staying longer than their visas, but also by asylum seekers hoping to take refuge in the United States. The apparent purpose of the test is to uncover misleading statements from asylum seekers and immigrants who claim to be relatives but whose relationship is based on affection or convenience rather than blood. Immigration hawks contend that migrants crossing the border into Mexico pretend to be families to take advantage of rules that often result in family groups being released into surrounding communities faster than adults traveling alone. The tests, which would be administered to migrants at ports of entry and at the border, in other words, those crossing legally and without papers, raise a number of privacy fears. Among them: the tests involve collecting DNA from children who cannot give their legal consent; the tests do not take into account significant ties of blood and affection that do not reach biological paternity; 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 can find their DNA funneled into databases that are used for criminal investigations. in the future. Currently, US officials do not have a DNA reference database of people who have never been suspected of a crime; This could be a movement to change that, and it is a movement that focuses on immigrants, regardless of their legal status. It is not clear if all these fears will come true; 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 paternity and legitimate ties, ranging from adoption to affection, opens opportunities for the kinds of misuse that led Cold War-era officials to doubt the legitimacy of the family claims of Chinese immigrants to the United States. By October 2019, a senior DHS official announced the administration’s continued interest in eliminating citizenship by birth, guaranteed by the Fourteenth Amendment as one of the corrective measures to correct the errors of slavery, and its belief that this could be achieved 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 in immigration custody and enter those DNA results. DNA in the national criminal DNA databases. Previously, the FBI Combined DNA Index System, or CODIS, database consisted primarily of samples of people 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 are not under suspicion of being connected to the types of serious crimes that have been the defining characteristic of the databases. DNA from law enforcement agencies in the past. The irony, of course, lies in the substantial body of research showing that immigrants commit crimes at lower rates than Native American citizens.
Concerns about the use of DNA information are real, and the creation of generalized reference databases of specific groups raises a number 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 concerns in different circumstances. On the one hand, the widespread collection that is taking place at the border, for legal and undocumented immigrants, raises serious questions about racial profiling, the threshold for collection and the risks of coercion and challenges of meaningful consent. On the other hand, when the police investigate serious crimes, such as the recently solved Golden State Killer case, it is not clear that it makes sense to require a court order based on probable cause before the police can search a commercially available database, or even collect items from the trash that contain the suspect’s DNA. Limiting government collection to individualized suspicion would help protect privacy, and restricting information searches to instances where a judge has signed a court order is not a panacea, not even necessarily an effective approach. It would prevent law enforcement from accessing the DNA data for the next Golden State Killer investigation. The wide range of examples of DNA use by the government illustrates the fact that, if the government can access DNA data, it is necessary to impose strict restrictions, monitored by internal authorities and independent external bodies, to ensure that The information is not misused. Saying “get a court order” for every type of personal data that could be misused amounts to taking an easy and intellectually careless way out, providing the false appearance of privacy protection and undermining legitimate security goals. The most significant, difficult and necessary policy work must be to define new constraints that define when, why and how the government can access that data; what are the permitted and inadmissible uses; how compliance will be monitored; and what will be the consequences for the government if it mishandles the information. The authors of the Federalist Papers could not have imagined the extent to which members of Congress have abandoned their Article I authorities in favor of devotion to their political party. However, until now, the continuous vigilance of journalists, citizens, activists – and judges and politicians willing to put principle before partisanship – has continued to expose irregularities when they arise and provide the mechanisms to protest and combat them.
Despite the extraordinary overreach at the border, despite threats to pursue political enemies, there are still legitimate and urgent national security and law enforcement challenges, and there are legally and ethically sound reasons why the government needs to rely on data collection and analysis tools. As citizens, we must aim to be as well informed as possible about the government’s use of digital data, and to seek and critically evaluate credible news information on these issues. Our goal as a society should be to constructively support legitimate government needs while protecting individuals from the collection and use of excessively intrusive or abusive data by agencies charged with intelligence, law enforcement, and other government functions. . We should be on guard against intrusion, but avoid paranoia. The Reagan-era adage about nuclear disarmament is one that still serves well: “Trust but verify” should be the motto of every American who wants to know how their government is using personal data and how those uses fit the requirements of the Constitution and principles of our nation.