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By: Elizabeth Hosmer
Member, American Journal of Trial Advocacy
In March of 2018, the United States Department of State proposed a new requirement for United States visa applicants to disclose their previous addresses, email addresses, phone numbers, international travel and deportation statuses, and social media usernames.[1] Additionally, visa applicants are asked “whether any family members have been involved in terrorist activities.”[2] The notice, titled “Agency Information Collection Activities: Generic Clearance for the Collection of Social Media Information on Immigration and Foreign Travel Forms,” began by inviting the public and Federal agencies to comment on the proposed “collection of information.”[3] The notice was published in the Federal Register and went on to state that the proposed collection of information is “necessary to comply” with President Trump’s March 2017 Executive Order and in order “to establish screening and vetting standards and procedures to enable [the Department of Homeland Security] to assess an alien’s eligibility to travel to or be admitted to the United states or to receive an immigration-related benefit from [the Department of Homeland Security].”[4] The information gathered will be used “to validate an applicant’s identity information and to determine whether such travel or grant of a benefit poses a law enforcement or national security risk to the United States.”[5] Both American citizens and foreign nationals have pointed out the possible First Amendment violations created by the new rule. It has yet to be clearly determined whether surveillance and vetting of social media will in fact constitute censorship and violate the First Amendment, but the new lawsuit filed on behalf of two documentary groups is likely the beginning of the journey to an answer.
The New Rule and Rationale
Such information was previously only requested from applicants that the State Department determined were subject to heightened scrutiny, “such as those who have traveled to areas controlled by terrorist organizations.”[6] The proposed change, which went into effect in May of 2019, will now require the approximately 14 million visa applicants, immigrant and non-immigrant alike, per year to disclose every social media handle, including pseudonyms, they have used in the past five years on various social media platforms such as Facebook, Instagram, Twitter, and YouTube.[7] Applicants may be required to submit themselves to this additional screening and vetting and therefore must provide their social media handles and their “publicly available social media information,” which the Department of Homeland Security defines as “any electronic social media information that has been published or broadcast for public consumption, is available on request to the public, is accessible online to the public, is available to the public by subscription or purchase, or is otherwise lawfully accessible to the public without establishing a direct relationship.”[8] This means that applicants may have to provide access to their social media pages that do not require another user to “friend,” “follow,” or “connect” in order to access.[9] While certain diplomatic and official visa types are exempt from the disclosure requirements,[10] there is no apparent distinction or exception made for applicants visiting the U.S. for business or education.[11] This information is then kept by the federal government indefinitely and may be shared with any state or local government and possibly with foreign governments.[12] While it is not clear what the Department of State intends to do with the retained information once used to vet and screen an individual applicant, the information will remain on file for any number of potential future uses.
First Amendment Violations
In its short life, this rule has already raised several First Amendment questions and a federal court case. Social media surveillance has been the butt of many jokes but does pose a risk to the free expression rights of social media users.[13] While the free speech implications of social media surveillance may not be outright censorship, knowing that social media posts, photos, and accounts are even possibly being monitored is likely to cause self-censorship, in which social media users choose not to post or comment on relevant issues for fear of the federal government collecting their information.[14] In our technology-based world, social media platforms “have become the de facto town square” where users around the world share both political ideas and cat videos.[15] Even self-censorship would hinder a user’s free expression of speech.
These First Amendment questions have turned into lawsuits. The Knight First Amendment Institute at Columbia University and the Brennan Center for Justice at New York University have filed a federal suit on behalf of the Doc Society and the International Documentary Association.[16] The two documentary groups allege that the current administration’s policies have created issues with their work with foreign filmmakers.[17] Members of both groups have stopped using social media as they fear any expression about politics may be used against them, even if posted under a pseudonym or anonymously.[18] According to the group, members and partners alike are fearful that U.S. officials could deny their visa while others have elected to not apply for a U.S. visa at all.[19] The filing on behalf of the documentary groups alleges that this policy will affect both foreign artists and activists, as well as Americans.[20] If foreign citizens are fearful that they may be one day denied a U.S. visa for a social media post, they themselves may self-censor resulting in a constraint on Americans’ ability to hear and read a variety of cultural viewpoints and ideas.[21]
Additionally, this new policy could push foreign governments, especially those with fewer Free Speech protections, to require the same disclosure of information from Americans seeking foreign visas.[22] The lawsuit also argues that those applicants from countries under authoritarian regimes may jeopardize their own expression. If the United States finds sensitive information, even that posted anonymously, that discusses political issues and the United States government shares that information with foreign governments, the applicant could be put in potential danger.[23] At the very least, foreign applicants would be less likely to either freely express themselves online or apply for visas.[24] Ultimately, the lawsuit raises questions about how useful social media accounts would even be for government officials; social media is likely “an unreliable reflection of a person’s views” because of the “jokes and sarcasm” that are “often devoid of broader context and conversation.”[25] It will be an interesting development to First Amendment law either way the court and future courts rule on this issue.
[1] U.S. to Seek Social Media Usernames and Details from All Visa Applicants, CBS News (Mar. 29, 2018, 3:13 PM), https://www.cbsnews.com/news/visa-applicants-social-media-details-email-addresses-phone-numbers/; US Now Seeking Social Media Details from All Visa Applicants, AP News (June 1, 2019), https://apnews.com/c96a215355b242e58107c2125c18fc4a.
[2] US Now Seeking Social Media Details from All Visa Applicants, supra note 1.
[3] Agency Information Collection Activities: Generic Clearance for the Collection of Social Media Information on Immigration and Foreign Travel Forms, 84 Fed. Reg. 46557 (proposed Sept. 4, 2019).
[4] Id.;Protecting the Nation From Foreign Terrorist Entry Into the United States, 82 Fed. Reg. 13209 (Mar. 9, 2017).
[5] Agency Information Collection Activities: Generic Clearance for the Collection of Social Media Information on Immigration and Foreign Travel Forms, 84 Fed. Reg. 46557 (proposed Sept. 4, 2019).
[6] U.S. to Seek Social Media Usernames and Details from All Visa Applicants, supra note 1.
[7] Harsha Panduranga, Social Media Vetting of Visa Applicants Violates the First Amendment, Brennan Ctr. for Just. (Dec. 9, 2019), https://www.brennancenter.org/our-work/analysis-opinion/social-media-vetting-visa-applicants-violates-first-amendment.
[8] Agency Information Collection Activities: Generic Clearance for the Collection of Social Media Information on Immigration and Foreign Travel Forms, 84 Fed. Reg. 46557 (proposed Sept. 4, 2019).
[9] Id.
[10] US Now Seeking Social Media Details from All Visa Applicants, supra note 1
[11] Id.
[12] Panduranga, supra note 7.
[13] Saira Hussain & Sophia Cope, Deep Dive: CBP’s Social Media Surveillance Poses Risks to Free Speech and Privacy Rights, Electronic Frontier Found. (Aug. 5, 2019), https://www.eff.org/deeplinks/2019/08/deep-dive-cbps-social-media-surveillance-poses-risks-free-speech-and-privacy.
[14] Id.
[15] Saira Hussain & Sophia Cope, Deep Dive: Stop Mass Collection of Social Media Information, Electronic Frontier Found. (Nov. 25, 2019), https://www.eff.org/deeplinks/2019/11/deep-dive-eff-dhs-stop-mass-collection-social-media-information.
[16] Tony Room & Drew Harwell, New Lawsuit Challenges Trump Administration Policy to Collect Foreigners’ Social Media Accounts, Wash. Post (Dec. 5, 2019), https://www.washingtonpost.com/technology/2019/12/05/new-lawsuit-challenges-trump-administration-policy-collect-foreigners-social-media-accounts/.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Room & Harwell, supra note 16.
[22] Id.
[23] Charles Savage, Trump Administration Sued Over Social Media Screening for Visa Applicants, N.Y. Times (Dec. 5, 2019), https://www.nytimes.com/2019/12/05/us/politics/visa-applications-social-media.html.
[24] Id.
[25] Room & Harwell, supra note 16.
American Journal of Trial Advocacy 