Today, the Brennan Center, joined by 48 other civil and human rights groups, submitted comments raising a host of fundamental objections to a proposed State Department policy that would disproportionately burden travelers from Muslim countries and chill speech protected by the First Amendment and international human rights standards.
On August 3, 2017, the U.S. State Department issued a 60-day notice of a policy to collect supplemental information from approximately 65,000 visa applicants; this policy continues the information collection put into place on an emergency basis in May 2017, to which the Brennan Center and 34 other groups objected.
The supplemental questions would require visa applicants to provide 15 years’ worth of personal information, as well as all social media platforms and handles they have used during the previous five years. They would predominantly be asked of persons seeking to travel to the U.S. from Muslim-majority countries that President Trump has targeted with categorical travel bans. This policy is in furtherance of the government’s “extreme vetting” policy initiative, which has been criticized for unfairly targeting certain groups based on religion and national origin as well as placing an excessive burden on visa applicants without sufficiently showing that the additional information is useful or relevant to national security concerns.
The letter to the State Department makes six principal objections:
- The proposed collection excessively burdens visa applicants for speculative national security benefits: The request for fifteen years’ worth of details on travel, address, and employment imposes an excessive – and potentially exclusionary – burden on affected applicants without commensurate benefits for national security;
- Request for social media platforms and identifiers is ambiguous and broad: The term “social media platforms” is not defined, and may be interpreted to include an incredibly broad array of online activities. Additionally, the scope of the request raises the risk that travelers will be held accountable for posts on a profile for which they exercise only partial control;
- Information that is captured will be difficult to interpret and the process will chill free expression: Communications on social media are difficult, if not impossible, to interpret accurately, even more so in the context of unfamiliar cultures and languages, and applicants and their American contacts may proactively censor themselves;
- Muslims will be primarily burdened: The history of these vetting procedures suggests that they are likely to be applied disproportionately to Muslim applicants, disfavoring individuals on the basis of their religious beliefs;
- Information collection may facilitate bulk data mining and algorithmic analysis efforts that amplify privacy and discrimination concerns: The report does not specify how the State Department will use or store the data it obtains, and exploiting this data for bulk mining or algorithmic analysis would further amplify many of the existing concerns about discrimination and invasion of privacy;
- There is no evidence that foreign visitors pose a significant threat to the U.S.: Over the past ten years, Americans have been more than ten times as likely to drown in a bathtub or die in a lightning strike than to die in a terrorist attack perpetrated by a foreign born terrorist on U.S. soil, and entry screening would have been unlikely to stop the attacks that were perpetrated by foreign-born terrorists.
In sum, the Department of State’s rushed information collection initiative will create unnecessary burdens for those seeking to come to the United States, implement an overly-broad and ambiguous social-media policy with unclear future implications, and create an infrastructure through which policies that discriminate against Muslims may be administered. The Brennan Center and its allies urge the State Department to abandon its proposal.