The Fourth Amendment’s Failure to Protect Against Mass DNA Collection at the Border

The U.S. government has long surveilled immigrant communities by collecting identifying information, including biometric data. The passage of the DNA Fingerprint Act of 2005 expanded the possible sources of data to include DNA. In 2020, the Trump administration seized on the permissive language of the statute to require that DNA be collected from nearly every noncitizen detained by the federal government. Now, 2.6 million noncitizens and counting have their DNA permanently stored by the federal government. This expansive surveillance program operates despite the Fourth Amendment’s promise of protection because of the exceptionalism of both DNA searches and the border in contemporary Fourth Amendment jurisprudence. However, even if a constitutional violation could be established, noncitizens lack a meaningful legal remedy.