Why is the U.S. still probing foreign visitors social media accounts?

Graph on immigration. Photo: courtesy Cato Institute

The day he took office, President Joe Biden revoked former president Donald Trump’s ban on travel from primarily Muslim countries, calling it “a stain on our national conscience.” In the same proclamation, Biden ordered a policy review encompassing a related component of Trump’s “extreme vetting” program: a State Department policy requiring nearly 15 million visa applicants per year to submit their social media handles to the U.S. government. This review signaled that the Biden administration would eventually reverse (or at least narrow) this unjustified and unconstitutional policy. But now the administration is doing the exact opposite. Rather than rescind or restrict this surveillance policy, the administration is seeking to expand it to another 15 million people per year – adding visitors to the United States who do not need visas (including many from European countries).

The existing State Department policy casts a wide net. It requires nearly all visa applicants to disclose all social media handles they’ve used during the previous five years on any of 20 different platforms – including Facebook, Twitter and YouTube. The State Department and the Department of Homeland Security can retain this information indefinitely, share it with other federal agencies, and disclose it, in some circumstances, to foreign governments.

The dragnet approach and the indefinite retention of social media information have far-reaching effects, even if they are hard to measure. Many people – scholars, artists, and activists – will change the way they use social media if they know that the U.S. government is systemically surveilling their speech and associations. Some will steer clear of controversial topics for fear that their speech might be misunderstood, opting for self-censorship over visa delays or denials. (There may be good reason for self-muting: The nuances of different languages, cultures, and contexts make interpreting social media posts extremely difficult, potentially leading U.S. officials to bar foreigners from entry through misunderstandings.) Would-be travelers may also hesitate to engage with others online, concerned that U.S. officials may someday impute an online acquaintance’s speech to them. This concern is well-founded: In 2019, a border agent at Boston Logan International Airport reportedly turned away an incoming Harvard freshman from Lebanon because of his friends’ social media posts.

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Human rights activists, political dissidents and others who use pseudonymous handles have additional reasons to fear the repercussions of revealing their social media handles to the U.S. government. These travelers face the risk that U.S. officials will intentionally share their handles with foreign governments or inadvertently share them with other third parties (through hacks, for instance). Rather than risk exposure to retaliation by repressive regimes, many of these travelers will simply stop using social media, while others will decide not to travel to the United States at all – decreasing opportunities for personal connection, professional collaboration and cultural exchange on both sides of the border. Because of these chilling effects, more than 50 civil-society groups have condemned the State Department policy and two documentary film organizations have sued to challenge it. (Our organization, the Knight First Amendment Institute, represents the plaintiffs in that case.)

The government has never adequately explained, let alone provided evidence of, the need for this policy. Obama-era pilot programs failed to show that social media screening is a useful visa vetting tool. And during the early days of the Biden administration, the Office of Information and Regulatory Affairs, which analyzes the cost and benefits of regulations, rejected a previous DHS proposal to expand the State Department policy; it concluded that DHS had failed to demonstrate the policy’s “practical utility” and to justify its “monetary and social” costs.

And yet, the Biden administration is now doubling down on the Trump-era policy, by expanding it. Under the administration’s proposal, U.S. Customs and Border Protection (CBP) would require foreign travelers who apply to enter the United States under the Visa Waiver Program to turn their social media handles over to the government. (At present for this group, submitting that information is voluntary.)

The question this move demands is: Why? More than a year after the Biden administration began a review of the usefulness of social media screening for visa vetting purposes, the administration has offered no evidence or explanation to justify the State Department policy it inherited from the Trump administration. Yet through the CBP proposal, the Biden administration now seeks to adopt that policy as its own. That’s why the Knight Institute this month filed a Freedom of Information Act lawsuit seeking to bring the findings of the administration’s review to light.

Whatever information that suit turns up, it’s clear that the Biden administration’s proposed new policy would vastly expand the social media surveillance dragnet cast by the Trump administration, with terrible consequences for freedoms of speech and association. This is the kind of policy we ordinarily associate with authoritarian states, not open societies. It does a disservice to our democratic values, and from all available evidence, it’s not even effective. President Biden should be ditching this dragnet, not expanding it.

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Anna Diakun is a staff attorney at the Knight First Amendment Institute at Columbia University.

Carrie DeCell is a senior staff attorney at the Knight First Amendment Institute at Columbia University.

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