CBSA has used DNA testing on some detainees since at least 2016. Now, it’s making national rules
According to documents obtained by Global News under access-to-information laws, a report by Vice News in July 2018 outlining the use of testing by the CBSA to identify immigration detainees sent officials there into a scramble to figure out what their own rules were for the practice.
That report and subsequent others prompted an internal review just one week later with the goal of creating a national policy.
“E&I Operations [CBSA’s Enforcement and Intelligence Operations Directorate] has indentified [sp] a policy gap with regards to the use of DNA testing to determine the identity of CBSA clients and is requesting E&I Programs to develop such a national policy,” reads an undated memo prepared for the director general of that team.
The memo also referenced a teleconference held on July 28, 2018, in which all of the regional directors were told of the plan.
A spokesperson for the CBSA confirmed to Global News that work remains underway to create a national policy but did not say when it will come into effect.
“The Canada Border Services Agency (CBSA) is in the process of developing a national policy on the use of DNA,” said Judith Gadbois-St-Cyr in an email.
“However, the CBSA may utilize third party DNA services under specific/ limited circumstances, for example confirming one to one familial relationships in support of the immigration program. The Agency only uses DNA testing when other avenues of investigation have been exhausted.”
Gadbois-St-Cyr also noted the agency is aware of the privacy implications of DNA testing detainees and sharing that data with private companies.
“The CBSA takes its privacy protection obligations very seriously. Before using DNA testing, the Agency ensures it has the consent of the individual in question.”
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According to the documents obtained by Global News, officials at CBSA headquarters quickly began asking questions after the Vice News report, demanding to know whether there were rules in place around the use of the testing by one of their branches in Toronto on several detainees.
One day after that report was published, an official from the CBSA’s case management headquarters wrote to the assistant director of immigration investigations in Toronto, saying she had received a request from the director general of enforcement and intelligence operations for more details about the practice.
“He told me we need to get details about the use of DNA websites by the CBSA ASAP,” the officials wrote in a July 27, 2018, email included in the documents.
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The requested information focused on whether management at CBSA in Toronto had given approval for the testing, what internal policy it uses in determining when to do DNA testing, what kind of consent was obtained from the detainee and how often it performs such tests.
In response, the assistant director of immigration investigations in Toronto emailed back saying the technique had been used since roughly October 2016 and that cases were being approved by the assistant director of removals in the branch.
The assistant director also wrote back that the different ancestry websites used to identify individuals had different perceived strengths.
“Ancestry.com has found to be more fullsome [sp] for Europeans and Africans. Family Tree DNA is more popular in North America,” she wrote.
Responses to the question of how many times the technique had been used were not provided, with officials saying it was not possible because the cases were not logged but rather only documented within individual case files themselves, which would require searching through all files to determine a response.
Another memo in the release package though notes there have been discussions within the CBSA about DNA testing of detainees going back to 2008.
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The use of DNA testing by law enforcement and federal agencies has raised serious questions over the last year following news that American police used the technique to identify the Golden State Killer after decades of unsuccessful investigation.
Police can also use DNA submitted to companies like FamilyTreeDNA — one of the firms used by the CBSA — in their investigations given the company says it makes its information available to the FBI without warrants.
Other companies such as Ancestry.com and 23AndMe say they only allow police access to their records with warrants.
But the privacy rules of such companies have come under scrutiny as that sharing brought increased focus on the issue of sharing genetic data with third-parties.
GlaxoSmithKline spent $300 million last year for exclusive access to 23AndMe’s millions of genetic profiles from consumers who paid the company to analyze their DNA.
Officials at the CBSA in Toronto noted in the exchanges that they had been getting written consent from detainees prior to testing.
They also said they informed the detainees of the privacy policies of the companies.
But others from CBSA headquarters noted among themselves that privacy concerns remain over what happens to the DNA once the CBSA hands it over.
“Any privacy concerns are more complicated when it comes to further disclosure of the information obtained,” the documents stated.
As a result, an operational bulletin went out to all branches ordering them to get approval from CBSA headquarters and the case management teams within the agency before doing any further testing, and said all requests for testing must be submitted via email.
“The CBSA’s use of DNA as an investigative tool to uncover a client’s identity (included but not limited to the use of websites such as Ancestry.com, FamilyTreeDNA.com) is being reviewed in order to develop a national policy,” reads a bulletin sent out on July 30, 2018.
“In the interim, regions contemplating using DNA to determine identity, when other avenues of investigation have been exhausted, must consult the CBSA Case Review Unit in advance of proceeding.”
Those exchanges also noted that DNA testing is not exclusively used in the cases of long-term detainees — those there longer than 99 days.
“Long term detainees consist of clients who have been detained over 99 days, however this should not be mixed within the context of when CBSA decides to use DNA testing. The use of DNA testing is the result of a combination of factors such as long term detention.”
It is not clear at this point when the new national policy could come into effect.
Because the agency has said it does not keep records of the number of times DNA testing is used, it is also not possible to say whether the influx of irregular migrants beginning in early 2017 could have seen increased use of the practice compared to years past.
© 2019 Global News, a division of Corus Entertainment Inc.