Earlier this month the Bureau of Information and Regulatory Affairs (OIRA), the White House office that reviews federal regulations, declined the proposal by the Department of Homeland Security to collect social media identifiers on travel and immigration forms. OIRA concluded that the DHS was “not appropriate” [demonstrate] the practical benefit of gathering this information ”, noting that the Muslim ban that ordered the proposal had been lifted.
The suggestionwho have the Brennan Center and our allies opposite asked in writing for approval to oblige approximately 33 million people annually to register every social media handle they have used over the past five years on one of 20 platforms including Facebook, Instagram, Twitter and YouTube. If the measure had been approved, a wide range of people would have had to give their social media handles to the federal government – including those eligible for short trips to the US without a visa, those seeking asylum or refugee status, and permanent US citizens are trying to become citizens.
Stopping the DHS collection is a big deal and we applaud it. But it’s only the first step. The Biden administration that is now Conduct A review of whether the collection of social media identifiers has “vastly improved screening and verification” should also end the State Department’s corresponding collection of approximately 14 million people a year who fill out visa applications. Like the DHS proposal, this State Department policy was underpinned by the Muslim ban and justified with practically identical evidence. As OIRA’s decision indicates, there is little evidence that social media screening is an effective screening tool. We know, however, that the Dragnet’s facilitation of surveillance of modern public space undermines freedom of speech and privacy, and places different effects on people who traditionally bear the brunt of government profiling in the name of national security.
Unsurprisingly, the DHS failed to demonstrate the “practical use” of its proposed collection. In fact, the agency’s internal testing has questioned the benefits of using social media to screen people coming to the US. In a transition in 2016 short Prepared for the future Trump administration, the DHS reported that in three of the four refugee screening programs, social media information “did not reveal clear, articulate links to national security concerns,” even when an applicant was identified as a potential threat from others Channels. (The department did not identify any derogatory information from the fourth pilot at all.) Among other things, officials indicated that it was difficult to understand “with certainty” the context and reliability of their reviews. They concluded that “mass social media screening” was a poor use of resources, preventing people from “the more targeted, improved screening for which they are well trained and equipped”.
Indeed, the DHS Inspector General in 2017 checked In the pilot programs for monitoring the social media of the department, it was explicitly stated that scaling the practice could not be justified as the DHS had not defined success criteria for measuring the programs. As the OIRA noted, the federal government has certainly not provided this if there is evidence that social media screening is an effective screening tool.
However, there is evidence that social media surveillance is preventing people from speaking and socializing freely online. We have documented this cooling effect in our document legal action Contested the collection of State Department social media identifiers on visa forms submitted by the Brennan Center in December 2019 with the Knight First Amendment Institute and the Simpson Thacher law firm. (The lawsuit has been suspended because the government is reviewing its screening programs, although the policy remains in effect.) For example, a member of a documentary filmmaking organization we represent “reviewed three years of social media activity and deleted posts containing the current one US government criticized for fear that the agencies could delay approval of their application. Another has “almost stopped voicing his views and interacting with others on social media” because he understands that the government can review and monitor his posts.
People censor themselves for a number of reasons. They reasonably fear that their speech will be misinterpreted, especially given that communication on social media is often very context-specific and fraught with problems slang and Jokes. This includes communication in non-verbal form that have no generally accepted meaning (for example, whether a “retweet” on Twitter signals a confirmation). Such interpretation difficulties are exacerbated when officials attempt to review posts in thousands of languages supported by a variety of customs and cultural norms, or when they rely on automated text interpretation tools that fall below 20-30 percent error rate the best of circumstances and even worse when applied to non-standard English.
Online language is also easily misallocated. Indeed, in 2019 officials turned away an arriving Palestinian student at Harvard (before finally bowing to public pressure to let him back into the country) after finding posts criticizing the US government on his social media timeline. In particular, the posts were not made by him, but by people on his friends list, and he had not interacted with those posts. This experience also shows why people may not be critical of the government on the internet when they are being monitored, as they have legitimate reasons to fear being punished for what they say (or what others say).
After all, social media offers a deluge of sensitive information about an individual that is not apparent from an immigration grant application and is irrelevant to what it is being checked for. For example, while State Department policies prohibit officials from considering certain attributes in order to deny visas (“Visas cannot be denied based on race, religion, ethnicity, national origin, political point of view, gender, or sexual orientation”), officials enjoy far Discretion in assessing immigration performance and behind closed doors. This is a recipe for subjective bias to infect decision making and produce discriminatory outcomes.
Worse still, both State Department policies and the DHS proposal emerged from the Muslim ban and preceded statements by Trump officials that it was a social media screening intended to facilitate ideological review for Muslims. The genesis of these guidelines only underscores how the Dragnet collection of social media identifiers builds a digital screening infrastructure ripe for deliberate, systematic profiling.
The rejection of the Biden administration’s DHS proposal to collect social media identifiers on their travel and immigration forms is a major victory for freedom of expression and privacy – both values enshrined in the U.S. Constitution. The new administration should also reset related social media monitoring programs like the State Department’s collections program, which are based on the same faulty premises. This would send an even stronger signal to the world that the United States continues to advocate for the right of people around the world to speak and associate free from state control.
