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Analysis

Twitter and Reddit Support Lawsuit Challenging Social Media Vetting of Visa Applicants

The Trump administration’s policy of demanding social media account details before letting people visit the United States is unconstitutional.

June 5, 2020

Twit­ter, Reddit, and a trade asso­ci­ation repres­ent­ing over 40 major inter­net compan­ies told a federal court last week that the State Depart­ment’s policy requir­ing visa applic­ants to register their social media handles viol­ates the First Amend­ment.

Their friend-of-the-court brief comes in a lawsuit filed by the Bren­nan Center, Knight First Amend­ment Insti­tute, and the law firm Simpson Thacher on behalf of Doc Soci­ety and the Inter­na­tional Docu­ment­ary Asso­ci­ation. The suit argues that the regis­tra­tion require­ment gives their members and part­ners an unac­cept­able choice: be care­ful and possibly limit what they share on social media — or be denied entry to the United States, whether to visit or to live. In turn, it deprives Amer­ican film­makers of oppor­tun­it­ies to hear from their foreign coun­ter­parts. And it makes it harder for them to connect the world through film, an import­ant part of their missions.

The Elec­tronic Fron­tier Found­a­tion and a number of faith-based organ­iz­a­tions added their voices in addi­tional briefs about how the regis­tra­tion require­ment invades privacy and harms reli­gious minor­it­ies.

The brief led by Twit­ter and Reddit argues that requir­ing people to register their pseud­onym­ous accounts viol­ates the First Amend­ment’s protec­tion of anonym­ous speech. The compan­ies note that the import­ance of protect­ing anonym­ity didn’t start with the inter­net. Rather, it has “played a cent­ral role in Amer­ican history,” recog­nized worthy of wield­ing even by those closest to power. In the lead-up to inde­pend­ence, seminal Amer­ican docu­ments — such as Thomas Paine’s Common Sense — were writ­ten anonym­ously to avoid retri­bu­tion from English author­it­ies. Found­ing Fath­ers like James Madison and Alex­an­der Hamilton used pseud­onyms to debate rati­fic­a­tion of the Consti­tu­tion.

As the compan­ies argue, protect­ing anonym­ity is import­ant online, too, given that “many speak­ers use Inter­net forums like Reddit and Twit­ter to make state­ments that might provoke criti­cism or retali­ation from their communit­ies,” whether for polit­ical activ­ism, express­ing their sexual orient­a­tion, criti­ciz­ing the prac­tices of organ­ized reli­gious insti­tu­tions, or to report viol­ence or harass­ment. Our clients’ members and part­ners — just like prom­in­ent U.S. senat­ors — have used pseud­onyms online to protect their iden­tit­ies for these reas­ons. They include, for example, a person who researches Nazis by join­ing online discus­sion groups, a Syrian national who wants to shield against polit­ical perse­cu­tion, and others who “discuss concerns about the Trump admin­is­tra­tion, as well as … gun laws, abor­tion rights, and the selec­tion of Supreme Court justices[,]” our complaint notes.

EFF’s brief high­lights the fact that whether or not a handle is anonym­ous, the regis­tra­tion require­ment is extremely invas­ive. It lays out how “social media profiles can paint an alarm­ingly detailed picture of [visa applic­ants’] personal lives” and those of their friends, family, and asso­ci­ates. A person’s profile can include rela­tion­ships, group member­ships, polit­ical views, photos, videos, loca­tions, and more. The breadth of this inform­a­tion, combined with social medi­a’s inter­con­nec­ted nature, means that profiles “collect[] in one place many distinct types of inform­a­tion … that reveal much more in combin­a­tion than any isol­ated record.”

As EFF points out — quot­ing a concur­ring opin­ion by Supreme Court Justice Sonia Soto­mayor in case about privacy and tech­no­logy — the “‘wealth of detail’” revealed “‘about [their] familial, polit­ical, profes­sional, reli­gious, and sexual asso­ci­ations’” means a person’s privacy rights are implic­ated even if this inform­a­tion is openly shared. The Supreme Court has recog­nized this interest when consid­er­ing cases involving the govern­ment’s warrant­less use of a GPS device to compre­hens­ively track a person’s move­ments.

Finally, a filing by Muslim Advoc­ates, the Amer­ican Friends Service Commit­tee, T’ruah, and the Recon­struc­tion­ist Rabbin­ical Asso­ci­ation describes how the regis­tra­tion require­ment harms reli­gious activ­ity specific­ally. Among their points is that the rule’s effects corrode Amer­ica’s “long tradi­tion of hold­ing inter­faith dialogues,” some­times facil­it­ated by U.S.-based conven­ings.

Moreover, the faith-based organ­iz­a­tions under­score that reli­gious minor­it­ies are espe­cially vulner­able to perse­cu­tion facil­it­ated by the regis­tra­tion require­ment. Refer­en­cing the admin­is­tra­tion’s Muslim ban, which the govern­ment cited when it initi­ated the policy, they note that “Pres­id­ent Trump has expressed open hostil­ity and an intent to target [Muslims] for special govern­ment scru­tiny.”

Before imple­ment­ing the social media regis­tra­tion require­ment, the Depart­ment of State did not heed the vast major­ity of over 10,000 public comments contain­ing an array of perspect­ives oppos­ing it. Now that it has taken effect, many of these concerns have become real­ity. Indeed, the exper­i­ences of our clients and others clearly demon­strate that it stifles the freedoms of expres­sion and asso­ci­ation guar­an­teed by the Bill of Rights.