DHS Takes First Step Towards Using Social Media to Investigate Applicants for Entry to U.S.

By Claudia Slovinsky, Principal and Founder and Leena Khandwala, AssociateDHS Takes First Step Towards Using Social Media to Investigate Applicants for Entry to U.S. by Claudia Slovinsky

Claudia Slovinsky and Associates, PLLC

{7 minutes to read} The Department of Homeland Security (DHS) has proposed a regulation aimed at broadening its authority to gather information about immigrants’ social media presence. The proposal is to add the following question, “Please enter information associated with your online presence—Provider/Platform—Social media identifier” to the I-94W (Nonimmigrant Visa Waiver Arrival/Departure Record) and the Electronic System for Travel Authorization (ESTA), both of which are required to be completed by travelers under the Visa Waiver Program prior to being admitted into the US. (The Visa Waiver Program allows citizens or nationals of 38 participating countries to travel to the United States for tourism or business stays of 90 days or less, without first obtaining a visa.)

This proposed regulation raises several troubling questions about the nature and scope of this information gathering, how the information gathered would be used and stored, and the privacy and civil rights implicated.

As an initial matter, it is not at all clear what type of information DHS is asking for. Social media identifiers are generally handles or usernames—the names or identities by which people identify themselves on social media. The ambiguous phrasing of the question could include, for example, the link to one’s Facebook or Pinterest page, one’s Twitter handle, the username for one’s Instagram, Tumblr, Snapchat, or Reddit account, or a multitude of other forums. Applicants may be legitimately confused about whether they need to disclose the usernames for all their social media accounts, both public and private. Some applicants could even misunderstand that they are required to provide the passwords to their private accounts, which is not the case.

Applicants also may well wonder, justifiably, what the consequences of disclosure would be. Does it mean that they are giving the federal government carte blanche to monitor or spy over all their public and private social media domains? Are there any temporal limits to the government’s ability to monitor their online presence? Or can the government continue to monitor them in perpetuity, even after they are no longer in the US? Also, applicants might legitimately wonder whether disclosure of their information could result in a denial of entry into the US.

Further, DHS says that the question is intended to be “an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information.” However the proposed language does not indicate that this is optional. Unless the question is clearly marked as “optional,” many applicants may not realize this is the case.

Additionally, applicants who decline to provide this information because of privacy concerns may also be worried. Could DHS draw a negative inference from this? Could their failure to disclose the information result in a denial of admission? Could DHS monitor them anyway or could they be subjected to greater scrutiny?

Another important factor that remains unclear is where this proposed language will be located on the paper I-94W form. For example, will it be part of the initial, biographical information listed on the first page, along with the name, date of birth, country of birth and citizenship, address and contact information, and particulars of the passport and airline, or will it be on page 2, which lists security and inadmissibility grounds, including criminal infractions, prior visa denials or cancellations, or denials of entry, and communicable diseases. Listing it on page 2 would likely be viewed as more of a red flag.

The stated rationale for this move is to enhance the agency’s investigative powers. As stated in the proposed regulation, “Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.” The agency does not explain how they would use this type of disclosure to weed out “nefarious” activity.

Monitoring of social media by DHS is not a new phenomenon by any means. Over the past few years there have been several initiatives to monitor media content, including social media data. In the wake of the December 2015 shootings by Tashfeen Malik, who, along with her husband, was found responsible for the shootings of 14 people in San Bernadino, CA, the agency has come under increasing pressure to have a more robust policy to identify potential security threats. Ms. Malik had entered the U.S. in 2014 with a K-1 fiancé visa, and investigations into her background after the shootings revealed that she had made postings on social media in favor of violent jihad prior to coming to the U.S.

In the wake of the shootings the agency was criticized for having missed an opportunity to diffuse a terrorist attack on the theory that had DHS monitored her social media posts, Ms. Malik’s K-1 visa would have been denied. Various lawmakers have proposed legislation, now pending in Congress, that would require DHS to collect social media information from foreign visitors, instead of making the disclosure voluntary.

The present regulation appears to be a preliminary step in gathering information about, and monitoring the social media presence of, individual visa applicants. But even this comes with potential for confusion, misstep and overreach, without any clear investigative benefit.

DHS is seeking feedback on the proposed regulation. Written comments can be submitted by August 22, 2016. Agency Information Collection Activities: Arrival and Departure Record (Forms I-94 and I-94W) and Electronic System for Travel Authorization

Claudia Slovinsky

Claudia Slovinsky
Principal and Founder
Claudia Slovinsky and Associates, PLLC
The Woolworth Building
233 Broadway, Suite 2005
New York, N.Y. 10279
(212) 925-0101
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