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State Department Must Abandon Discriminatory Visa Policy

The Brennan Center, Electronic Privacy Information Center, and other civil society groups called on the Department of State to abandon a policy that would undermine Constitutional rights and lead to discrimination.

Yester­day, the Bren­nan Center and the Elec­tronic Privacy Inform­a­tion Center (EPIC), along with 55 other civil soci­ety organ­iz­a­tions, submit­ted comments to the U.S. Depart­ment of State rais­ing a host of funda­mental objec­tions to a proposed State Depart­ment policy that would under­mine rights guar­an­teed by the First Amend­ment and result in discrim­in­a­tion on the basis of national origin, reli­gion, and ideo­logy.

On March 30, 2018, the U.S. State Depart­ment published two 60-day notices regard­ing a policy to collect addi­tional inform­a­tion, notably social media iden­ti­fi­ers, from nearly all visa applic­ants except certain diplo­mats – about 15 million people. This expands upon a 2017 policy requir­ing similar inform­a­tion from a subset of about 70,000 people who had been determ­ined to warrant addi­tional scru­tiny. Propos­als by the federal govern­ment to use social media to make adverse visa determ­in­a­tions have been consist­ently opposed by privacy, civil liber­ties, civil rights, and other civil soci­ety groups, includ­ing the Bren­nan Center and EPIC.

Our letter to the State Depart­ment makes four prin­cipal objec­tions:

  • The Proposed Collec­tion Excess­ively Burdens Visa Applic­ants for Spec­u­lat­ive National Secur­ity Bene­fits: 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;
  • The Proposed Collec­tion Will Primar­ily Burden Applic­ants on the Basis of National Origin, Reli­gion, or Ideo­logy: The history of the vetting proced­ures suggests an intent to make national origin and reli­gious-based distinc­tions among applic­ants, with a focus on Muslims. Indeed, docu­ments support­ing the collec­tion justify it in part based on mandates from Exec­ut­ive Order 13780, second in a sequence of “Muslim ban” exec­ut­ive orders that tie national origin to a terror threat, and which were enjoined by federal courts for reflect­ing reli­gious animus;
  • Inform­a­tion Collec­tion May Facil­it­ate Bulk Data Mining and Algorithmic Analysis Efforts that Amplify Privacy and Discrim­in­a­tion Concerns: The notices do not say in concrete enough terms how the State Depart­ment will use, store, or share the data it obtains. Exploit­ing this data for bulk mining or algorithmic analysis – for which there may be conduits –  would further amplify many of the privacy and discrim­in­a­tion-oriented concerns, espe­cially given that about 15 million people yearly will have to disclose their data to enter or obtain resid­ency in the United States;
  • There is No Evid­ence that Foreign­ers Pose a Signi­fic­ant Threat to the U.S.: Empir­ical evid­ence shows that the risk of an attack on U.S. soil perpet­rated by a foreign person who has been improp­erly vetted is infin­ites­imal. Indeed, the U.S. has one of the world’s most thor­ough visa vetting systems, built to identify national secur­ity threats; 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.

Policies should be based on proof. And while no proof has been offered that this proposal will enhance national secur­ity, its draw­backs and risks are evid­ent. The Bren­nan Center, EPIC, and our allies urge the State Depart­ment to aban­don this effort and others like it.   

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.