Would you feel comfortable if a U.S. immigration official reviewed all that you post on Facebook, Reddit, Snapchat, Twitter or even YouTube? Would it change what you decide to post or whom you talk to online? Perhaps you’ve said something critical of the U.S. government. Perhaps you’ve jokingly threatened to whack someone.
If you’ve applied for a U.S. visa, there’s a chance your online missives have been subjected to this kind of scrutiny, all in the name of keeping America safe. But three years after the Trump administration ordered enhanced vetting of visa applications, the Biden White House has not only continued the program, but is defending it — despite refusing to say if it’s had any impact.
On Monday, in response to one of two lawsuits filed by the Knight First Amendment Institute, the State Department refused to release a report detailing the effectiveness of enhanced vetting, which requires the nearly 15 million people who apply for U.S. visas annually to hand over all social media handles they used in the prior five years. That includes anonymous accounts, private ones, public ones and those they barely use.
Putting aside the ethical quandary of whether a visa-processing official can be trusted to judge someone’s intent from their internet presence, the policy might be illegal, according to a complaint filed by the Knight First Amendment Institute in December 2019 in the District Court for the District of Columbia. The Knight Institute — affiliated with Columbia University — accused the government of hobbling the free speech not only of people seeking to enter the U.S., but also of those already here.
“We think this violates the First Amendment,” Anna Diakun, a staff attorney at the Knight Institute, told Protocol. “It chills the speech and association of not just the visa applicants — many of whom have expansive ties to the United States — but also the people in the United States who want to engage with them.”
The policy conditions someone’s “ability to obtain a significant benefit (a U.S. visa) on their willingness to register their online speech and associations with the U.S. government,” Knight Institute attorneys wrote in a brief. In essence, the Knight Institute argues that the procedure and the cascading decisions it creates for visa applicants casts a pall over speech for countless individuals.
The State Department and Department of Homeland Security have moved to dismiss the Knight Institute's suit. Photo: Yasin Ozturk/Anadolu Agency via Getty Images
The State Department did not respond to requests for comment. Attorneys for the Department of Justice, on behalf of the State Department and the Department of Homeland Security, have moved to dismiss the suit and allege that the Knight Institute does not have standing or a valid First Amendment claim.
“The social media policy passes constitutional muster,” attorneys for the agencies wrote in a June 10 brief. “The policy plausibly relates to the Executive Branch’s goal of strengthening screening and vetting protocols for foreign nationals who seek to enter the country, especially with regard to ‘detecting foreign nationals who may commit, aid, or support acts of terrorism and [...] preventing those individuals from entering the United States.’”
The Trump administration implemented social media screening in 2019 after proposing it alongside other new immigration policies, including the infamous restrictions that became known as the Muslim travel ban. While President Biden revoked the Muslim travel ban upon taking office, he kept the social media vetting in place and pledged a report on the impact of the policy.
A little over a year later, in February 2022, the Biden administration proposed expanding the program to include nearly everyone who travels to the United States without a visa, such as those who are not required to obtain visas as they’re staying 90 days or fewer. That proposal is still awaiting approval or rejection from the Office of Information and Regulatory Affairs. Customs and Border Protection justified the proposed expansion as a way to “enhance our vetting processes and assist in confirming applicants' identities.”
The Knight Institute has filed two lawsuits in response to the social media policy: one seeking to have a federal judge throw it out, and the other demanding that the Biden administration release its report on the policy’s impact. A judge has yet to rule on the request to have the policy declared invalid.
In response to the other lawsuit, the Biden administration cited several Freedom of Information Act exemptions for keeping the report private, including one that allows the president to withhold documents used solely for presidential decision-making.
“We expect that the report does address whether or not this is effective — if there are benefits, what they are; if there are costs, what they are. And we think the public deserves to know this information,” Diakun said.
The Knight Institute is negotiating with federal attorneys to try to release other related documents, such as emails about the report’s conclusions, and will eventually try to fight the government’s refusal to release the full report.
As for the Knight Institute’s attempt to have the entire policy thrown out, Diakun said there’s no telling when the judge will rule on that.
Even if the social media handles are used just to verify identity, the Knight Institute attorneys and those they represent — filmmakers for two documentary organizations — fear the longer-term consequences of social media collection. Those records aren’t deleted after someone enters the country, but are instead stored by DHS in an immigration file system for 100 years after someone is born. Other U.S. federal agencies can sometimes access that information, and other countries have information-sharing agreements with DHS that could potentially give them access to the same data, according to the lawsuit.
“We think that requiring 15 million people a year to turn over this information is wildly overboard and unnecessary,” Diakun said.
Finally, legality aside, there’s that simple ethical question about the stated use of a policy that, to most U.S. citizens, sounds far-fetched and even dystopian.
“Take bias of the reviewers, linguistic challenges, not understanding cultural context, misunderstanding hyperbole or sarcasm,” Diakun said. “We think it is a flawed way of trying to determine who is eligible for a visa.”