Police departments around the country are beginning to deploy “Rapid DNA” machines, which can take a cheek swab or other genetic sample and automatically generate an identifying DNA profile. These machines cost as little as $30,000 and claim to take just 90 minutes. They handle some of our most sensitive information (our DNA) — and yet their design and use is largely unregulated. That should be cause for concern for several reasons.

First, Rapid DNA machines are likely to increase the risk of misidentification and wrongful conviction. Even traditional DNA analysis — which is typically done by trained professionals according to rigorous protocols in accredited laboratories — has led to terrible scandals and errors. For Rapid DNA machines — which police officers operate in precinct houses, without clear protocols, and after at most just a few hours of training — the risks of such injustices are even higher. Limited pilot studies have already raised concerns about the machines’ accuracy, including their failure to produce usable profiles, contamination of samples due to leaks in the machine, and the generation of at least one faulty profile.

These machines are also being used by police in ways they aren’t intended for.  They were designed to test samples taken from individuals for identification purposes, but local police departments are already deploying them on crime scene evidence, which is often far more complex. Such samples often include DNA that may be damaged or degraded, is present only in low amounts, or mixes many people’s genetic material. The FBI’s expert “Scientific Working Group on DNA Analysis” sternly warns that only a trained forensic DNA analyst can interpret crime-scene samples, and that Rapid DNA machines should not be used on them. The scientists also point out that “crime scene samples are often irreplaceable, and Rapid DNA instruments consume the entire sample.” The National District Attorney’s Association takes a similar position. But local police are not listening.

Second, “cheap and easy to use” is a perfect recipe for overuse, particularly when it comes to sensitive technologies in the hands of the government. We have seen this dynamic with cell phone location tracking, face recognition, and communications eavesdropping: intrusive information collection that was once subject to “natural limits” because it was expensive gets deployed far too broadly when new technology makes it cheap. Rapid DNA machines are likely to have this effect. Our DNA is far more than a replacement for the fingerprint; it is the “nuclear weapon” of identifying technologies. It can reveal much more — and more intimate — information than simply our identity, including our propensity for certain diseases, our family members, and our ancestry. And, as technology develops, DNA may reveal even more.

Third, Rapid DNA machines are likely to encourage the growth of government DNA databases, putting some of our most sensitive information in government hands. It also raises the likelihood of false hits. Even before Rapid DNA machines, we were seeing local police departments asking too many people — even kids — to provide DNA samples. This cheaper, faster technology — combined with the fact that many states have expanded their laws to authorize DNA collection from those who have merely been arrested — is only likely to exacerbate the problem. According to reports by the New York Times and other outlets, the FBI is working to enlist these machines into a national pipeline that will pour into its centralized DNA database, CODIS. And these machines are also likely to incentivize the growth of rogue DNA databases, which are maintained at the local level with far fewer quality, privacy, and security controls than federal databases.

Fourth, the easy availability of DNA testing through these machines is likely to exacerbate existing problems with the criminal justice system, including racial disparities in DNA collection that exist because our criminal justice system disproportionately suspects, arrests, and convicts people of color — and collects DNA from them accordingly. Rapid DNA machines may also encourage police attempts to obtain DNA without a warrant, including through pretextual arrests and the collection of so-called “abandoned” DNA that we all scatter around as we live our lives (for example on the things we touch and eat).

Recommendations

Given these risks, policymakers at all levels should think hard about whether it is appropriate to allow police departments to deploy Rapid DNA machines. Where police departments have already acquired them or been permitted to do so, measures (some which we have discussed previously) must be taken to guard against the pitfalls discussed above, including:

• Strict quality controls. The FBI is currently crafting use standards for Rapid DNA machines that will feed into CODIS. But local police departments are already using the machines outside of any standards. State lawmakers should look at this issue promptly and impose quality controls, including training and validation standards, to prevent sloppy use from creating injustices.
• Formal acquisition, use, and retention restrictions. This technology demands formal, legally binding restrictions on the collection, use, and retention of DNA. This should include regulations that: limit use to individuals who police have probable cause to believe committed a crime; ensure that the samples and results will be used only for their intended purpose; guarantee individuals whose DNA is collected and tested a right to access their results; and ensure expungement as soon as a person’s DNA data is no longer needed for the purpose that justified its collection.
• Limitation on “voluntary” collection. Collection of DNA should not be based on the fiction that submission is “voluntary” — that people are free to refuse police officers asking them for a biometric reading. Police officers have significant power and discretion in their encounters with us, and few such encounters are free from coercion. The New York Times story clearly showed such abuse in action; in the Pennsylvania town they profiled, where police must obtain consent from those under arrest, 90 percent of individuals asked agreed to hand over a sample. Officers explained that away with “criminals do stupid things,” but more likely most of those people did not feel they had a choice. Even people with more privilege may fear saying “no” to a police “request” that sounds an awful lot like a demand. No one should have to identify themselves to the police if they’re not suspected of a crime — and certainly should not be asked to turn over their DNA.
• Democratic control. Many local departments purchase surveillance technologies using DHS or DOJ grants that circumvent the local democratic budgetmaking process. And at least one town profiled by ProPublica paid for its DNA database with funds acquired through police banditry (aka “civil asset forfeiture”). No police department should spend money on this technology — no matter its source — without permission from its city council, county board, or other democratically elected oversight body. That is true even in jurisdictions that have not yet passed the “Community Control Over Police Surveillance” (CCOPS) legislation that the ACLU recommends.
• Transparency. Democratic control over police technology is impossible if communities don’t know what their officers are using and how. Legislators should ban nondisclosure agreements with technology vendors in which the government promises not to be transparent to its community about the nature of the technology it’s buying. Among other things, such agreements interfere with independent expert study of the technology. Individuals accused of a crime should also be guaranteed access to any available information about their tests and how they were conducted.

Vera Eidelman, Staff Attorney, ACLU Speech, Privacy, and Technology Project
& Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

Update: On October 4, 2019, the Supreme Court announced it would hear arguments June Medical Services v. Gee, the case challenging Louisiana's TRAP law, this term. 

Abortion rights captured the nation’s attention earlier this year when seven states passed early abortion bans. With the changes in the Supreme Court, and President Trump’s promise to appoint justices that would overturn Roe v. Wade, the concern about whether these new abortion bans would be upheld by the Supreme Court understandably reached a fever pitch.

But banning abortion outright isn’t the only way to eliminate abortion access in a state.  For decades, anti-abortion politicians have been quietly trying to push abortion out of reach by passing abortion restriction on top of restriction.  The new Supreme Court term started this week, and several challenges to such restrictions are pending in the Supreme Court. The Court could thus issue a ruling that would affect the future of abortion access this year without ever taking up a case involving an outright abortion ban.

Many of the abortion restrictions passed in recent years are called Targeted Regulation of Abortion Providers (TRAP) laws. They serve no medical purpose, and are passed with the sole intention of making it difficult — if not impossible — for people to access abortion.  A TRAP case from Louisiana, brought by our colleagues at the Center for Reproductive Rights, is one of the cases that SCOTUS could take up this term.

The TRAP law in question in the Louisiana case requires doctors who work at abortion clinics to have admitting privileges at a local hospital. If it stands, it would shutter all the clinics in the state except for one.

A district court struck down the law after finding that it would serve no medical purpose and would decimate abortion access in the case. The state appealed, and the Fifth Circuit Court of Appeals upheld the law. While it agreed that the law had limited-to-no medical utility, the court inaccurately found that the law wouldn’t cause clinics to close.

If you are experiencing déjà vu, you are not alone.  In 2016, the Supreme Court heard Whole Woman’s Health v. Hellerstedt, and found that a nearly identical law in Texas, which also required abortion providers to have admitting privileges at a local hospital, served no medical purpose and would unnecessarily force clinics to close.  The Court ruled that the law was therefore unconstitutional. The Whole Woman’s Health decision should have controlled the outcome in the Louisiana case too, but the Fifth Circuit failed to follow it.

Louisiana is not alone in trying to use TRAP laws to effectively ban abortion.  In Kentucky, we represent the last abortion clinic in the state, EMW Women’s Surgical Center, in several lawsuits, including a challenge to a TRAP law that requires abortion facilities to have a written transfer agreement with a local hospital. EMW had a transfer agreement with a local hospital for years, but Governor Bevin’s administration rejected it because it was signed by the head of the OB/GYN department rather than the hospital’s CEO. To prevent the state from shutting EMW down and eliminating abortion access in Kentucky, we went to court.  The law was struck down after trial, but the state’s appeal is now pending in the Sixth Circuit Court of Appeals.

In Ohio, a TRAP law is also being used to quietly and gradually close abortion clinics.  The law creates a complicated obstacle course for clinics: it says surgical facilities must have a written transfer agreement with a hospital, but the state department of health can waive that requirement if the clinic has one or more backup doctors with hospital admitting privileges.  The health department previously said that two backup doctors are insufficient for a waiver, and have arbitrarily demanded three instead.  Now – for no medical reason – they are requiring four back-up doctors. In states where doctors are subject to harassment for simply being associated with abortion access, finding that many back-up doctors can be next to impossible.

In Missouri, the state’s last clinic is facing a similar fight.  Earlier this year, the health department threatened to shut down that clinic, which is a Planned Parenthood affiliate, over disputes about its license. Planned Parenthood’s lawyers ran to court, and were able to get a court order prohibiting the state from closing the clinic—for now.

These states have followed up their restrictive TRAP laws with legislation that effectively bans abortion (although none are currently in effect). The agenda of these anti-abortion politicians is clear: TRAP laws have nothing to do with public safety, and everything to do with hostility to abortion. They are part of a strategy to do anything that eliminates abortion access.         

As the Supreme Court starts its new session this week, all eyes should be on the Louisiana case.  If the Court allows the Louisiana law to take effect, it will not only be devastating for people in Louisiana, it could also pave the way for courts to uphold other TRAP laws and abortion restrictions that will push abortion out of reach even more so than it already is.  TRAP laws hide their true intention under complex regulatory requirements that obscure what they are meant to accomplish, which is an end to abortion access. We must remain vigilant against all attempts to ban abortion, including both explicit as well as more subtle attempts.

Brigitte Amiri, Deputy Director, ACLU Reproductive Freedom Project     

This post is also published in Miami Herald and Florida Phoenix.

On Aug. 6, I and other representatives of the American Civil Liberties Union (ACLU) toured the Temporary Emergency Influx Shelter in Homestead, where undocumented migrant children had been detained.

We expected to see how the children were treated, in hopes of bringing some accountability to a place that has avoided public oversight.

But, according to staff members at the shelter, three nights before our arrival, between 1 and 7 a.m., the last of the children detained there – approximately 175 of them – were removed from the facility and sent elsewhere. They didn’t say where and gave no indication what would happen next to the kids.

The trauma and stress our government continues to subject these children to is outrageous. Some children were separated from families at the border; others endured traumatic journeys to the U.S. only to be swept into detention with no explanation of what is happening to them.

And then, the government abruptly transferred them to other locations in the middle of the night. Did senior Trump administration officials consider, or even care, how moving children this way would affect them?

The pre-dawn transfer of children out of Homestead is only the most recent indefensible incident at the facility.

Homestead has drawn national attention for being a privately operated prison for migrant children, for its enormous size, its lack of oversight, and for the inadequate conditions found there. At one point, it held some 2,700 kids.

Experts in child welfare agree that no child should be housed in a facility of that size – a place that is more like a prison than a home. They should especially not be housed there for months and months, as many children were.

A for-profit prison for migrant children in Miami-Dade County — particularly one that treats children so poorly and keeps them detained for far longer than needed — is a human rights catastrophe and a moral abomination.

Although Homestead is temporarily vacant, will the government send more migrant kids to replace those removed? It appears so.

Acting Director Jonathan Hayes, of the federal Office of Refugee Resettlement (ORR), recently said some 3,000 beds will remain ready in large influx centers, such as Homestead. The cost — to continue to operate a private prison-like detention center for children while it is currently empty— will be approximately $720,000 per day.

“Emergency influx shelters,” like Homestead, have operated with little accountability to the public, to Congress or to the law. Instead of operating according to state licensing standards, the facilities are administered according to contract terms not disclosed to the public.

In some instances, those standards are clearly inadequate.

On our tour we were told by a representative of the private company that operates the facility that of 130 teachers at Homestead, only 8 to 10 were certified. When asked why the company does not require teacher certification, she replied that they comply with ORR contract terms regarding the qualifications for teachers. But just what are those terms, and why are they so low? The public has not been told.

Is the Homestead facility complying with the ORR policy on the reporting of sexual abuse? We don’t know because ORR has failed to provide basic information to us or Congress on that policy. In fact, we don’t know the contract standards for any of the basic care and treatment of children the shelter is responsible for.

Homestead has cost taxpayers $33 million or $720,000 per day, in the weeks since it has stopped sheltering children. It is now on what is called “warm status,” which means it is prepared to receive children at any time — and likely will house children again starting this fall.

We must fight vigorously against the re-opening and new construction of mass detention centers for children, which will psychologically harm them. Floridians should make it clear that they oppose them. Local elected officials, especially in Miami-Dade County, must champion that fight.

Under public pressure, federal officials have recently changed policies to expedite the release of children to appropriate sponsors and significantly decrease the average length of time children spend in ORR custody. We must keep up that pressure.

In addition, we must pressure the federal government to abandon mass detention sites and instead work with nonprofit providers to establish small, state-licensed, permanent shelters and care programs, with established models of family-like and trauma-informed foster care, driven by the best interests of the child. These shelters are more accountable, transparent, and appropriate for the care of children.

And while we advocate for these reforms, we must continue to make it loud and clear that policies that allow for separating children from their families or detaining children for long periods of time are unacceptable and that we will not stand for it.

Cruelty is not an immigration policy.

The continued existence of the Homestead detention facility and others like it brings shame to our state and our nation.

Our government must do better. Our humanity demands it.