[Congressional Record Volume 155, Number 185 (Thursday, December 10, 2009)]
[Senate]
[Pages S12904-S12907]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              DNA SAMPLING

  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.

[[Page S12905]]

       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

[[Page S12906]]

     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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     apparently LPR sampling, though NLG is unclear on this point. 
     NLG's concern is misplaced. The bar on LPR sampling is 
     implicit in the proposed regulation, which earlier in the 
     same subsection clearly excludes LPRs.
     Administrative Office of the United States Courts
       The AOC suggests in a May 16, 2008 comment that the word 
     ``agency'' as used in the proposed rule be defined to exempt 
     judicial agencies from the obligation to collect DNA samples 
     from persons facing charges. A person facing Federal charges 
     may have been arrested by state authorities or turned himself 
     in, and therefore may not have had a DNA sample collected by 
     an executive agency during a Federal arrest. I do not 
     recommend that judicial agencies be exempted from the 
     proposed rule, as they may be the only--or at least the 
     first--Federal agency that is in a position to collect a DNA 
     sample from an offender. I see no reason to exempt judicial 
     pre-trial services agencies from the obligation of all parts 
     of the Federal government to carry out those ministerial 
     tasks necessary to the prevention of violent crime.
       AOC also notes that the proposed regulation does not 
     identify a system for determining whether an offender's 
     sample is already in NDIS. This is an administrative matter 
     that need not be addressed in the text of the proposed 
     regulation.
     Canadian Embassy and MP
       The Canadian Embassy and a Canadian Member of Parliament 
     submitted comments on May 19, 2008 posing several questions 
     about the scope of the proposed rules, most of which appear 
     to be based on a misunderstanding that the rule would require 
     sampling of routine Canadian visitors to the United States. 
     The rule exempts persons processed for lawful entry to the 
     United States or held at a port of entry for consideration 
     for admission to the United States, exceptions that address 
     the concerns raised in these comments.
           Sincerely,
                                                          Jon Kyl,
     U.S. Senator.

                          ____________________