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Analysis

Social Media Vetting of Visa Applicants Violates the First Amendment

Our lawsuit challenges the Trump administration’s policy of requiring visa applicants to register their social media handles as unconstitutional.

December 9, 2019
social media
Peter Byrne/Getty

This piece was originally posted by Just Security.

Since May, the State Department has required almost everyone applying for a U.S. visa — more than 14 million people each year — to register every social media handle they’ve used over the past five years on any of 20 platforms, including Facebook, Instagram, Twitter, and YouTube. The information collected through the new registration requirement is then retained indefinitely, shared widely within the federal bureaucracy as well as with state and local governments, and, in some contexts, even disseminated to foreign governments. The registration requirement chills the free speech of millions of prospective visitors to the United States, to their detriment and to ours.

On Thursday, on behalf of two U.S.-based documentary film organizations, the Knight First Amendment Institute and the Brennan Center for Justice sued to stop this policy, arguing that it violates the First Amendment as well as the Administrative Procedure Act. The plaintiffs, Doc Society and the International Documentary Association (IDA), rely on social media to support and engage with filmmakers from around the world. They also host events in the United States to connect those filmmakers with funders, advocates, and other partners. The registration requirement impedes these efforts by chilling foreign filmmakers’ online expression and by discouraging them from traveling to the United States to attend Doc Society’s and IDA’s events here.

The registration requirement dramatically deters visa applicants from speaking freely and associating with others online. The plaintiffs’ members and partners use social media to discuss an array of social and political issues, including corruption, human rights atrocities, women’s rights, climate change, racial injustice, and the global impact of U.S. policy. Now they must consider whether this kind of speech will lead U.S. officials to subject their visa applications to additional scrutiny, delay the processing of those applications, or deny the applications altogether. Because of the registration requirement, some Doc Society and IDA members and partners have stopped posting on social media, left online groups, stopped interacting with certain friends online, or deleted their social media posts or accounts completely.

The chilling effects of the registration requirement are particularly pronounced for individuals who use pseudonymous social media handles. Some plaintiffs’ members and partners use pseudonymous social media handles to conduct research in sensitive online communities, to avoid stalkers and trolls in public forums, to promote or participate in political demonstrations, or to speak out against their own governments. The registration requirement forces these individuals to surrender their anonymity and accept the risk that their handles will end up in the hands of rights-abusing governments, hackers, and others.

The registration requirement also deters talented international artists from applying for visas at all. This is an enormous loss for international cultural exchange. It is also a violation of the First Amendment right of Americans to hear from and engage with the citizens of other nations. By conditioning the ability of foreign documentary filmmakers to travel to the United States on their willingness to submit to surveillance of their social media activities, the registration requirement makes it more difficult for Doc Society and IDA to recruit these filmmakers to share their work and their experiences with U.S. members, partners, and audiences.

There is no evidence that the social media registration requirement serves the government’s professed goals. Despite the State Department’s bare assertion that collecting social media information will “strengthen” the processes for “vetting applicants and confirming their identity,” the government has failed — in numerous attempts — to show that social media screening is even effective as a visa-vetting or national security tool. For example, internal reviews of certain Department of Homeland Security social media screening pilot programs found that “the information in the accounts did not yield clear, articulable links to national security concerns.”

The registration requirement is a significant step in the Trump administration’s determined march to implement an oppressive “extreme vetting” program for immigrants and visitors to the United States. But it’s only an initial step: in September, DHS proposed to expand the social media registration requirement to a dozen other immigration and travel forms, which will affect another 33 million people every year, including legal permanent residents of the United States.

As the Supreme Court has recognized, social media platforms offer the most important spaces for people to participate in the “modern public square” or otherwise explore “the vast realms of human thought and knowledge.” This digital forum is interconnected and international in ways that profoundly benefit American cultural life. Subjecting it to mass surveillance threatens the creative freedom and potentially even the lives of artists and activists around the world, and deprives U.S. audiences of opportunities to hear from and interact with those individuals — whether online or in person. The registration requirement is misguided and inconsistent with core American values. The State Department should abandon it and leave the modern public square free for all of us.