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Doc Society v. Blinken

The Brennan Center and co-counsel represent documentary filmmaker associations challenging the State Department’s dragnet collection of social media identifiers from nearly all U.S. visa applicants. The registration requirement, as well as related policies that permit the broad retention and dissemination of those identifiers, violate the First Amendment and Administrative Procedure Act.

Published: December 5, 2019

Case Background

On Decem­ber 5, 2019, the Bren­nan Center, along with the Knight First Amend­ment Insti­tute at Columbia Univer­sity and Simpson Thacher & Bart­lett LLP,  filed a lawsuit on behalf of two U.S. based organ­iz­a­tions that collab­or­ate with film­makers around the world, Doc Soci­ety and the Inter­na­tional Docu­ment­ary Asso­ci­ation (IDA), chal­len­ging the State Depart­ment’s drag­net require­ment that nearly all applic­ants for U.S. visas register on their applic­a­tion forms the social media iden­ti­fi­ers they have used over the past five years on a list of twenty plat­forms, includ­ing those like Face­book, Instagram, YouTube and Twit­ter. This regis­tra­tion require­ment, which took effect in May 2019 and affects about 15 million people a year, reflec­ted a major expan­sion of the govern­ment’s prob­ing into the social media activ­ity of trav­el­ers and immig­rants to the U.S. The lawsuit also chal­lenges the Depart­ment of Home­land Secur­ity’s (DHS) subsequent reten­tion and dissem­in­a­tion of those iden­ti­fi­ers.

The regis­tra­tion require­ment and related reten­tion policies lead people to self-censor. Part­ners and members of the organ­iz­a­tions we repres­ent use pseud­onym­ous handles to speak online about sens­it­ive or import­ant topics to protect them­selves from retali­ation, but they must now register them with the U.S. govern­ment, which claims the author­ity to dissem­in­ate them abroad. Even people who do not choose to remain anonym­ous reas­on­ably fear that govern­ment offi­cials will misin­ter­pret or misat­trib­ute posts made in online envir­on­ments where people inter­act differ­ently than they do in real life. DHS policies that contem­plate the reten­tion of applic­ants’ social media data for 100 years after their birth – and permit using it for broadly defined purposes – only magnify these chilling effects. As a result of these burdens on speech, Doc Soci­ety and IDA are forced to expend addi­tional resources to main­tain rela­tion­ships with non-U.S. film­makers, to learn about their work and issues confront­ing their communit­ies, and to encour­age them to travel to the United States to parti­cip­ate in their programs and engage with their U.S. audi­ences.

Drag­net social media surveil­lance harms free expres­sion, but there’s no evid­ence that it helps protect national secur­ity or enforce the immig­ra­tion laws. In 2017, the DHS Inspector General concluded that the social media screen­ing pilot programs it reviewed failed to meas­ure effect­ive­ness and could not justify scal­ing the prac­tice. Other internal DHS reviews poin­ted out that offi­cials found it diffi­cult to make use of social media data to identify national secur­ity threats. These find­ings are consist­ent with what expert and civil soci­ety organ­iz­a­tions have poin­ted out in oppos­ing propos­als to expand social media screen­ing. 

For these reas­ons, the lawsuit alleges that the State Depart­ment’s regis­tra­tion require­ment and related reten­tion and dissem­in­a­tion policies viol­ate the First Amend­ment because they deprive visa applic­ants of the rights to anonym­ous speech and private asso­ci­ation, and because they chill consti­tu­tion­ally protec­ted speech and asso­ci­ation, while being poorly tailored to the govern­ment’s stated interests. The regis­tra­tion require­ment also viol­ates the Admin­is­trat­ive Proced­ure Act because it exceeds the State Depart­ment’s author­ity under the Immig­ra­tion and Nation­al­ity Act and is arbit­rary and capri­cious. The govern­ment’s motion to dismiss the case remains pending before the court.

Case Docu­ments (No. 1:19-cv-03632, D.D.C.)

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