WASHINGTON – Two documentary film organizations—Doc Society and the International Documentary Association—today filed the first major legal challenge to new rules that require nearly all visa applicants to register their social media handles with the U.S. government. The documentary film organizations, represented by the Brennan Center for Justice, the Knight First Amendment Institute at Columbia University and Simpson Thacher & Bartlett LLP, argue that the social media registration requirement chills prospective visa applicants from engaging in constitutionally protected speech and association, deters them from applying for visas to travel to the United States, and burdens the ability of U.S. organizations and audiences to engage with filmmakers from around the world.
“Even the government’s own tests haven’t produced any evidence that social media screening works to reliably identify fraud or national security threats,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “And that isn’t surprising – officials are looking at posts in thousands of languages, and are trying to interpret jokes, slang, and sarcasm in digital spaces where people communicate differently than they would in real life.”
The State Department rules, which took effect in May, apply to an estimated 14.7 million visa applicants each year, requiring them to register all social media handles—including pseudonyms—that they’ve used on any of 20 platforms in the preceding five years. The State Department and the Department of Homeland Security can retain the collected information indefinitely, share it broadly among federal agencies, and disclose it, in some circumstances, to foreign governments.
The plaintiffs in the lawsuit are Doc Society, a non-profit organization committed to supporting documentary filmmakers and connecting them with global audiences, and the International Documentary Association, a non-profit, membership-based association of documentary filmmakers. Their members and partners include internationally acclaimed documentary filmmakers who come from a variety of countries and represent a range of social and political perspectives. Some use pseudonyms as their social media handles to protect themselves and their families from reprisal by repressive governments or private actors.
“We regularly work with filmmakers for whom the ability to maintain anonymity online can be a matter of life and death," said Jess Search, Director of Doc Society Inc. "As an organization committed to filmmaker safety, we believe the registration requirement is a deeply troubling and oppressive development, forcing filmmakers to choose between free online expression and their own security. The U.S. government should be championing freedom of expression, not taking actions which will inhibit it."
“Social media screening has already deterred some of our members from applying for visas, preventing them from participating in recent U.S. film festivals and limiting their ability to tell their stories to U.S. audiences,” said Simon Kilmurry, Executive Director of the International Documentary Association. “In our increasingly global world, the meaningful exchange of ideas and perspectives should be celebrated, not stifled.”
The lawsuit challenges both the registration requirement and related retention and dissemination policies. The suit contends that the registration requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests, and that it violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because the requirement is arbitrary and capricious.
“The registration requirement is the linchpin of a far-reaching and unconstitutional surveillance regime that permits the government to monitor the online activities of millions of visa applicants, and to continue monitoring them even after they’ve entered the United States,” said Jameel Jaffer, Executive Director of the Knight Institute. “The government simply has no legitimate interest in collecting this kind of sensitive information on this immense scale, and the First Amendment doesn’t permit it to do so.”
The plaintiffs ask the Court to declare the registration requirement unlawful and to halt its enforcement.
Read the complaint here.
Lawyers on the case include Jameel Jaffer, Katie Fallow, Carrie DeCell, Anna Diakun, and Leena Charlton (Knight Institute); Faiza Patel, Rachel Levinson-Waldman, and Harsha Panduranga (Brennan Center); and Paul Curnin and Sarah Eichenberger (Simpson Thacher).
About the Brennan Center for Justice
The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize and — when necessary — defend our country's systems of democracy and justice.
About the Knight First Amendment Institute
The Knight First Amendment Institute defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.
About Simpson Thacher
Simpson Thacher & Bartlett LLP is one of the world’s leading international law firms. The Firm was established in 1884 and has more than 900 lawyers. Headquartered in New York with offices in Beijing, Hong Kong, Houston, London, Los Angeles, Palo Alto, São Paulo, Tokyo and Washington, D.C., the Firm provides coordinated legal advice and transactional capability to clients around the globe.