Social Media and Immigration

It is a common refrain: “Be careful what you put on social media!” The idea, of course, is something might come back to bite you later, such as in a job interview.

The immigration authorities–including the consulates abroad, the border officers, and the USCIS interview officers–are interested as well. Through a series of Federal Register notices, the federal agencies have requested authority to collect social media information on persons seeking entry into the United States.

The Department of State today requested emergency approval of a supplemental questionnaire to be used in select visa interviews. Of course, the facial reason for the request is to identify true terrorist threats, which everyone wants. The questionnaire seeks information going back 15 years, instead of the standard 5 years, and collects information on family relatives, employment history, and travel history (including source of funding). The questionnaire also asks for “all social media platforms and identifiers, also known as handles, used during the past five years.”

Similarly, the Department of Homeland Security’s border security agency, Customs and Border Protection, published notice of its intent to collect social media information platforms and handles in February. The announcement garnered the attention of the American Civil Liberties Union and the Electronic Frontier Foundation, as well as many media outlets. In 2016, the agency added an optional field to its visa waiver form so that applicants could volunteer their social media handles.

Immigration authorities have a great deal of discretion in seeking information to make determinations of admissibility. It seems that the agencies are quickly moving in the direction of requiring that social media handles be provided as part of the application process.

As with all expansions of government authority, there will be intended and unintended consequences. Terrorists and zealots use social media to find new recruits. Theoretically, social media might help identify someone who should not be issued a visa or admitted. Of course, this presumes that the bad-actor volunteers their information in the first place. While unlikely, developing a repository of such information could theoretically provide security dividends.

There are other considerations. The ACLU and EFF point to privacy interests. The digital age feels different, when it comes to search and seizure, with so much information retained on devices, in the cloud, and on social media platforms. Some of the privacy issues will inevitably be litigated. In general, I expect the courts to favor the national security interests inherent in border searches, though not without some measure of reason.

We increasingly observ officers walking over to a computer to conduct “Google” searches of applicants for admission. In fact, this does seem to be more common with the new Administration. I expect there will be even more digital searches, as agents peruse social media histories, to form an opinion on the person before them. Intrusive, yes, but also at times inefficient. These searches take time, and lead to more questions, which also takes time, and leads to frustrations. Most people are on several social media platforms. It’s not hard to picture someone being penalized for failing to volunteer their Instagram account, while yet disclosing Facebook, Twitter, and Linkedin. It’s also easy to imagine that nonsensical lines of questioning will be more common. Fishing expeditions.

The agencies are really only formalizing something they already do in select cases. Every week I hear of persons who were asked for passwords to their computers and phones, as well as social media handles. The question with these Federal Register notices is whether this is going to be routine for all travelers. How often and how deep will they choose to dig? Hopefully, these requests for social media information handles catch terrorists and other bad guys, and don’t become just another burden on travelers to the U.S.