Despite the chorus of opposition to other similar initiatives, the Department of Homeland Security (DHS) issued a proposed rule to collect social media identifiers from an estimated 33 million people annually who seek permission to enter or stay in the United States, or become citizens. DHS plans to demand this information from a host of immigrants: lawful permanent residents seeking to become citizens, people applying for political asylum, and for many other immigration benefits assessed by United States Citizenship and Immigration Services (USCIS). In addition, two travel applications controlled by Customs and Border Protection (CBP)—the Electronic System for Travel Authorization (ESTA) and Electronic Visa Update System (EVUS)—will also require such disclosure.
This proposed rule will be detrimental to the exercise of fundamental rights, and, relative to the associated costs, fails to deliver adequately on added security. Because of these threats to individual privacy, free expression, and other rights, CDT joined 41 other organizations, including the Brennan Center for Justice, American Civil Liberties Union, and the Electronic Privacy Information Center, in calling on DHS to scrap the proposed rule. Deeply worried that DHS may proceed nonetheless to implement this collection, we filed a separate supplementary comment demanding DHS adopt safeguards to mitigate the predictable harms that will result from implementation of this rule.
This Collection Would Jeopardize The Exercise Of Fundamental Rights
As we have repeatedly warned, the use of social media screening to determine who gets an immigration benefit will chill freedom of speech and association, inhibit the ability to speak pseudonymously online, and leave individuals vulnerable to mistaken inferences and to pretextual denials. Furthermore, it will overwhelm the associated government agencies with irrelevant information of questionable usefulness in screening applicants. This type of vetting invites more abuse than security. For example, earlier this year a Palestinian student who was admitted to Harvard University was interrogated by CBP about the online speech of a social media connection—speech with which he did not engage—and was denied entry to the United States. After a number of interventions, he was allowed ultimately to enter the United States over a week later. As social media data becomes more routinely collected, stories like this will become more commonplace.
Furthermore, this specific collection from individuals who will reside in the United States long term, or become citizens, divides our society into two categories of speakers: those about whom the government has a comprehensive registry of online handles and those about whom the government does not have an online identifier. This information will become a part of these individuals’ Alien Files, which are retained indefinitely. The government’s retention of their social media identifiers, and any associated content of their speech, will have long-term chilling effects on these populations—an outcome that cannot be tolerated in a nation that prides itself on a legacy of fervently defending free speech.
If The Collection of Social Media Identifiers Proceeds Despite Widespread Opposition, DHS, CBP, and USCIS Must Adopt Safeguards To Mitigate The Predictable Negative Consequences
If DHS proceeds with the collection of social media identifiers despite our opposition to such collection, they should at a minimum do the following: First and foremost, the government must assess the efficacy of using social media information to aid vetting of applicants seeking admission or immigration benefits. The proposed rule states that agencies have determined that the information sought will aid in the identification and vetting of applicants. However, this cursory conclusion is inconsistent with other public information calling into question the efficacy of the use of social media information to screen non-citizens. Furthermore, CBP began voluntarily collecting social media identifiers from applicants in 2016. A Privacy Compliance Review of the program noted that CBP had yet to establish objective metrics to assess the efficacy of using social media information.
In addition, DHS should ensure that decisions about applicants should not be based solely, or even significantly, on social media information. The government has other more reliable sources of information at its disposal and should give little weight to the likely out-of-context information it gleans from social media. Additionally, judgments based on social media information should be properly documented and made available to the applicant so that the applicant has an opportunity to refute or explain both the social media information and the interpretation of the information.
Compelling people who seek admission to the United States… to disclose their social media handles so what they say or have said can be used against them now, or monitored in the future, will chill their right to express themselves.
And finally, in order to avoid some of the pitfalls we have warned about, social media data should be considered only when there is existing derogatory information in the application that warrants a closer review of an application. Using social media information on the front end of a decision-making process would waste resources, delay adjudications, and leave applicants vulnerable to a fishing expedition that may result in a denial because an analyst inappropriately disfavored them. The use, if any, of social media information should be left to these secondary reviews. Our comments include many other suggestions, noting of course that not all the harms attendant to this collection can be mitigated.
Exercise of the right to free expression is migrating to social media platforms. Compelling people who seek admission to the United States, or who seek to become permanent residents, to disclose their social media handles so what they say or have said can be used against them now, or monitored in the future, will chill their right to express themselves. Moreover, social media information is of limited use in immigration decision-making. DHS should withdraw this proposed rule. If it fails to do that, it should adopt measures to limit the harm it will cause.