New lawsuit challenges Trump administration policy to collect foreigners’ social media accounts

U.S. President Donald Trump speaks to reporters at the White House in Washington, U.S. January 23, 2018. REUTERS/Jonathan Ernst/Files

Free-speech advocates are challenging the Trump administration’s policy of requiring foreigners to list their social media accounts as part of their visa applications, alleging in a lawsuit filed Thursday that the policy violates federal law and runs afoul of the Constitution.

The requirement – implemented as part of the president’s controversial crackdown on immigration – amounts to an illegal surveillance dragnet that threatens to chill political expression online, according to a group of documentary filmmakers, who filed their case with the backing of two advocacy groups, the Brennan Center for Justice and the Knight First Amendment Institute.

Since May, the State Department has required visa applicants to list the names of all social media accounts they’ve had over the last five years on any of 20 services, including Facebook, Instagram and Twitter. The rules affect an estimated 14.7 million visa applicants each year, plaintiffs allege, and allow the U.S. government to identify not only their declared accounts but to learn the identities of their followers, family and friends.

The Departments of State and Homeland Security, which together manage the country’s borders and immigration policies, have defended the program as a critical tool for determining if foreigners pose national security risks. But critics fault the U.S. government for retaining the data indefinitely, and for sharing it with other U.S. agencies and potentially foreign regimes. In the lawsuit, plaintiffs said the system is “effectively a live database of their personal, creative, and political activities online” that far exceeds what immigration law permits.

“We believe it is both unconstitutional and illegal,” said Faiza Patel, a top lawyer at the Brennan Center for Justice. “The very fact the U.S. government is collecting social media identifiers sends a message to the whole world that we are watching what you say online.”

The plaintiffs in the case, the Doc Society and the International Documentary Association, contend the Trump administration’s social media policies specifically have imperiled their work with foreign filmmakers. Some of the U.S.-based groups’ members and partners have stopped using social media, fearing their views about the politics or the president – even those expressed under pseudonyms – could deter U.S. officials from granting them a visa, the lawsuit contends. Others have refrained from applying for U.S. visas entirely.

“Concerned that their political views will be used against them during the visa process, they self-censor to avoid being associated with controversial ideas or sensitive topics,” the attorneys wrote.

As a result, the policy harms foreign artists and activists as well as Americans, potentially constraining their ability to hear a wide range of cultural viewpoints and ideas, the filing alleges. They asked a federal judge in Washington, D.C., to declare the policy unlawful and prevent the government from using the data it has amassed.

Spokespeople at the State Department and DHS did not immediately respond to requests for comment.

The U.S. government first signaled its interest in collecting foreigners’ social media data during the Obama administration: DHS began work on what would later become a voluntary program asking travelers from certain countries to list their accounts on sites and services including Facebook and Twitter.

Even this more scaled-back program drew sharp rebukes from civil rights advocates including the American Civil Liberties Union as well as major tech companies, which argued it would chill speech online and potentially prompt other countries, including those with fewer protections for their citizens’ privacy, to demand the same of Americans.

Government watchdogs, meanwhile, similarly questioned the efficacy of these early programs to monitor social media: One 2017 report from the inspector general of DHS said federal agents lacked key data to determine if collecting such information actually improved U.S. national security.

Still, the government’s efforts to collect foreigners’ social media details expanded greatly under the Trump administration. It came in connection with the president’s so-called “extreme vetting” initiative, unveiled in 2017, which sought to more rigorously vet and monitor foreign visitors. Trump announced the proposals after courts struck down his initial travel ban targeting immigrants from majority-Muslim countries.

The government has not disclosed how many visa applicants have been rejected based on social media evidence. Roughly 4 million applications for temporary and immigrant visas were refused in the last fiscal year, State Department data show.

Officials at the departments of Defense, Justice and Commerce can also access the social media records, and the State Department can provide the information to local officials and foreign governments, the attorneys wrote.

The lawsuit questions whether the accounts would even be a useful tool for government officials: Social media is full of jokes and sarcasm, and often devoid of broader context or conversation, making it an unreliable reflection of a person’s views, the attorneys argue.

The risk of mischaracterizing a person’s thoughts or behavior is magnified, Patel said, by the fact that the accounts come from people across a wide range of cultures, countries and languages, making it more likely that an errant social media comment could be misconstrued.

Demanding immigrants and travelers share details of all of their accounts, including ones in which they use a pseudonym, could also expose them to political retaliation, online trolling or surveillance from their home government, the attorneys argued – the very risks that many of the documentary filmmakers had worked hard to avoid.

The scrutiny of applicants’ social media accounts could lead to more invasive profiling of Muslims and other foreigners, Patel said, and even to the scrutinizing of American citizens’ online speech, relationships and ideas.

She called social media reviews a “juggernaut that’s been moving forward without much thought being given either to the efficacy of these social media surveillance programs, or the impact they have on fundamental rights of speech and association.”

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