According to a notice published in the Federal Register on September 18, the U.S. Department of Homeland Security (DHS) plans to expand its record-keeping system to collect information from social media accounts of future, current, and former applicants for immigration benefits. The proposal references an earlier notice published in the Federal Register on November 21, 2013, which updated a DHS-wide system of keeping records on applicants for immigration benefits, including visas, lawful permanent residency, asylum, and naturalization.
In this recent notice, initially reported on by Buzzfeed News, DHS moves to “expand the categories of records to include…social media handles, aliases, associated identifiable information, and search results…” The notice continues further to propose expanding sources for these records to include “publicly available information from the internet,” “commercial data providers,” and “information obtained and disclosed pursuant to information sharing agreements.”
The department’s report signals increased scrutiny applied to particular groups of immigrants in the name of national security, and the report’s vaguely-worded mentions of “information sharing agreements”, as well as federal commitments to working with commercial data providers, have raised considerable concern over issues of free speech and privacy.
“We see this as part of a larger process of high tech surveillance of immigrants and more and more people being subjected to social media screening,” Adam Schwartz, an attorney with the Electronic Frontier Foundation told Buzzfeed News. “There’s a growing trend at the Department of Homeland Security to be snooping on the social media of immigrants and foreigners and we think it’s an invasion of privacy and deters freedom of speech.”
Faiz Shakir, ACLU National Political Director, also weighed in on the issue of applying stricter scrutiny to immigrants and naturalized citizens in this report. He wrote, “This Privacy Act notice makes clear that the government intends to retain the social media information of people who have immigrated to this country, singling out a huge group of people to maintain files on what they say. This would undoubtedly have a chilling effect on the free speech that’s expressed every day on social media. This collect-it-all approach is ineffective to protect national security and is one more example of the Trump administration’s anti-immigrant agenda.”
Following the 2015 San Bernardino massacre, publicized concerns over the social media statements made by Tashfeen Malik triggered widespread concern over the potential of preventing attacks by violent extremists by monitoring their social media activities. Less than two weeks after the attack, Senator Jeanne Shaheen and 24 other Senate Democrats sent a letter to DHS requesting that they require social media background checks as part of the visa vetting process.
DHS then assembled a task force to review the Department’s current use of social media in order to identify opportunities to optimize its use across its various agencies, including U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), Transportation Security Administration (TSA), and Immigrations and Customs Enforcement (ICE). The task force’s primary focus was to conduct pilots to test systematic screening of social media accounts belonging to applicants for immigration benefits.
In February of this year, the DHS Officer of Inspector General published an assessment of these pilots, concluding that these pilots lacked “criteria for measuring performance” to determine “whether, how, and when” to implement a more effective social media screening program.
Despite lack of evidence that it works, or even a set of criteria to determine this method’s efficiency, the use of social media screening in adjudication of visa, immigration, and citizenship cases has, in fact, been in practice in immigration courts for years, according to immigration policy analyst Alex Nowrasteh. Accounts from various immigration law practitioners told Nowrasteh that as early as 2009, USCIS and other agencies under the DHS umbrella have incorporated social media screening in the vetting of applicants.
Nonetheless, the announcement to institutionalize an ostensibly informal practice should be alarming to any immigrant, naturalized citizen, and, by extension, U.S. citizens who communicates with them. This practice, according to Faiza Patel, co-director of the Brennan Center’s liberty and national security program, could constitute ideological vetting. “The question is do we really want the government monitoring political views?” Patel said. “Social media may not be able to predict violence but it can certainly tell you a lot about a person’s political and religious views.”
Perhaps this news, then, even more so alarms immigrant populations already under stricter scrutiny by the FBI and various DHS agencies, particularly Muslims and applicants from Muslim-majority countries. It wasn’t until December 2016 that DHS dismantled the discriminatory regulations that kept intact the Bush-era Muslim registry known as the National Security Entry-Exit Registration System (NSEERS); however, since early 2008, USCIS has enacted an exclusionary policy of extreme vetting titled the Controlled Application Review and Resolution Program (CARRP). Attorneys and civil society organizations like the ACLU have charged USCIS with applying an extraordinarily higher degree of scrutiny to Muslim applicants for immigration benefits through CARRP, which has resulted in a high number of cases experiencing inordinate delays and adverse decisions in the adjudication of citizenship applications from Muslims.
Apparently, this recent DHS notice seems to be the latest in the trend to expand social media surveillance of immigrants, and particularly Muslim immigrants, refugees, and naturalized citizens. Just last May, the Trump administration introduced a three-page questionnaire for certain visa applicants that requires fifteen years worth of details on their travels, social media handles, and email addresses. This questionnaire is only required if an applicant has “been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities”–noticeably similar language as documents outlining CARRP’s procedures.
More recently, Republican senator and chairman of Senate Judiciary Subcommittee on Border Security and Immigration John Cornyn has contributed to this trend. His immigration bill, unveiled August 2, includes a slew of proposals to increase the amount of ICE, CBP, and Border Patrol agents, fund portions of the wall along the U.S./Mexico border, withhold funding from sanctuary cities, deploy drones near the U.S. border, and collect immigrants’ DNA. Among other proposals, this bill would also allow the DHS to screen the social media accounts of visa applicants from particular countries deemed to pose a high risk to national security, a list that would closely resemble the list used by Trump’s three consecutive “Muslim bans.”
The use of social media in immigration enforcement has been so widely known by legal practitioners that the National Lawyers Guild’s National Immigration Project designed a community advisory to applicants for immigration benefits specifically addressing the risks associated with social media. The advisory includes ways in which federal agents may use immigrants’ social media accounts and ways to reduce this risk. Visit their site for more relevant resources.