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How ICE and Other DHS Agencies Mine Social Media in the Name of National Security

Through its vast and deeply flawed social media monitoring, the Department of Homeland Security jeopardizes the rights of travelers, immigrants, refugees, and many others.

Cross-posted from The Hill.

In June 2018, more than 400,000 people protested the Trump admin­is­tra­tion’s policy of separ­at­ing famil­ies at the border. The follow­ing month saw a host of demon­stra­tions in New York City on issues includ­ing racism and xeno­pho­bia, the abol­i­tion of Immig­ra­tion and Customs Enforce­ment (ICE), and the National Rifle Asso­ci­ation.

Given the ease of connect­ing online, it is unsur­pris­ing that many of these events got an organ­iz­ing boost on social media plat­forms like Face­book or Twit­ter. A recent spate of articles did bring a surprise, however: the Depart­ment of Home­land Secur­ity (DHS) has been watch­ing online too. Congress should demand that DHS detail the full extent of social media use and commit to ensur­ing that the programs are effect­ive, non-discrim­in­at­ory, and protect­ive of privacy.

Last month, for instance, it was revealed that a Virginia-based intel­li­gence firm used Face­book data to compile details about more than 600 protests against family separ­a­tion. The firm sent its spread­sheet to the Depart­ment of Home­land Secur­ity, where the data was dissem­in­ated intern­ally and evid­ently shared with the FBI and national fusion centers; these centers, which facil­it­ate data shar­ing among federal, state, local, and tribal law enforce­ment, as well as the private sector, have been heav­ily criti­cized for viol­at­ing Amer­ic­ans’ privacy and civil liber­ties while provid­ing little of value.

In the mean­time, Home­land Secur­ity Invest­ig­a­tions — an arm of ICE created to combat crim­inal organ­iz­a­tions, not collect inform­a­tion about lawful protests — assembled and shared a spread­sheet of the New York City demon­stra­tions, labeling them with the tag “Anti-Trump Protests.” And as Cent­ral Amer­ican cara­vans slowly traveled north, DHS’s Customs and Border Protec­tion (CBP) drew on Face­book data to create dossiers on lawyers, journ­al­ists, and advoc­ates — many of them U.S. citizens — provid­ing services and docu­ment­ing the situ­ation on the south­ern border.  

As shock­ing as these revel­a­tions are, DHS’s social media ambi­tions are both broader and opaque. A recent report I co-wrote for the Bren­nan Center for Justice, based on a review of more than 150 govern­ment docu­ments, exam­ines how social media is used by four DHS agen­cies — ICE, CBP, TSA, and the U.S. Customs and Immig­ra­tion Service (USCIS) — and describes the defi­cien­cies and risks of these programs.

First, DHS now uses social media in nearly every aspect of its immig­ra­tion oper­a­tions. Parti­cipants in the Visa Waiver Program, for instance — largely trav­el­ers from West­ern Europe — have been asked since late 2016 to volun­tar­ily provide their social media handles. The Depart­ment of State recently won approval to demand the same of all visa applic­ants, nearly 15 million people per year; this data will be vetted against DHS hold­ings. While inform­a­tion from social media may not be the sole basis for denial, it could easily be combined with other factors to justify exclu­sion, a process that is likely to have a dispro­por­tion­ate impact on Muslim trav­el­ers and those coming from Latin Amer­ica.

Trav­el­ers may have their social media data examined at the U.S. border as well, via warrant­less searches of elec­tronic devices under­taken by CBP and ICE. Between 2015 and 2017, the number of device searches carried out by CBP jumped more than threefold; one report suggests that about 20 percent are conduc­ted on Amer­ican trav­el­ers. (ICE does not reveal its figures.) CBP recently issued more strin­gent rules, though it remains to be seen how closely it will follow them; a Decem­ber 2018 inspector general report concluded that the agency had failed to follow its prior proced­ures.

ICE oper­ates under a decade-old policy allow­ing its agents to “search, detain, seize, retain, and share” elec­tronic devices and any inform­a­tion on them — includ­ing social media — without indi­vidu­al­ized suspi­cion. Remark­ably, ICE justi­fies this author­ity by point­ing to centur­ies-old stat­utes, equat­ing elec­tronic devices with “merchand­ise” that customs inspect­ors were author­ized to review under a 1790 Act passed by the First Congress. This approach puts the agency out of step with the Supreme Court, which recently recog­nized that treat­ing a search of a cell phone as identical to a search of a wallet or purse “is like saying a ride on horse­back is mater­i­ally indis­tin­guish­able from a flight to the moon.”

The breadth of DHS’s social media monit­or­ing begs the ques­tion: Is it effect­ive? It is notable that a 2016 DHS brief repor­ted that in three of four refugee vetting programs, the social media accounts “did not yield clear, artic­ul­able links to national secur­ity concerns,” even where a national secur­ity concern did exist. And a Febru­ary 2017 Inspector General audit of seven social media pilot programs concluded that DHS had failed to estab­lish any mech­an­isms to meas­ure their effect­ive­ness. 

Indeed, content on social media can be diffi­cult to decode under the best of circum­stances. Natural language processing tools, used for some auto­mated analysis, fail to accur­ately inter­pret 20–30 percent of the text they analyze, a gap that is compoun­ded when it comes to unfa­mil­iar languages or cultural contexts. Even human review­ers can fail to under­stand their own language if it’s filled with slang.

We now know far more about the scope of DHS’s efforts to collect and use social media, but there is much that remains obscured. Without robust, ongo­ing over­sight, neither the public nor lawmakers can be confid­ent that these programs are serving our national interest.