It looks like being the wrong kind of American will result in the mandatory collection of social media account handles and aliases. New rules on social media snooping have been floated several times with varying degrees of sincerity, but this time the DHS actually means it.
The Department of Homeland Security published the new rule in the Federal Register last week, saying it wants to include "social media handles, aliases, associated identifiable information, and search results" as part of people's immigration file. The new requirement takes effect Oct. 18.
This will affect all immigrants, whether or not their legal status says they should be treated like US citizens. The rule covers permanent residents and naturalized citizens, not just visa applicants and visitors. And it will proceed despite two important missing elements: clear legal authority and any proven national security value.
The DHS admitted in a letter to Ron Wyden it had no authority to search Americans' social media accounts. All it could point to was the "border exception" upheld by courts as a valid Fourth Amendment bypass thanks to its national security nexus. But as for laws explicitly allowing the government to gather social media info from Americans, it had nothing.
Critics of this stepped-up demand for information point out it's a reactionary move by the DHS, aligning it with the repeated failures of the constantly one-step-behind-the-terrorists TSA.
Alex Nowrasteh, an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity, said the expansion seems to originate from concerns about Tashfeen Malik, one of the San Bernardino shooters in late 2015.
“This is another example of the government changing security protocols based on a previous incident that will impose an enormous cost and that is of dubious value for the future,” Nowrasteh said. “Social media has been used in immigration courts for years but there’s little evidence that it’s helped with visa vetting.”
But it's not just libertarian-leaning entities making this point. DHS oversight has said the same thing. A report released by the DHS Inspector General says the DHS has no plan in place to measure the effectiveness of social media account searches.
[T]hese pilots, on which DHS plans to base future department-wide use of social media screening, lack criteria for measuring performance to ensure they meet their objectives. Although the pilots include some objectives, such as determining the effectiveness of an automated search tool and assessing data collection and dissemination procedures, it is not clear DHS is measuring and evaluating the pilots’ results to determine how well they are performing against set criteria. Absent measurement criteria, the pilots may provide limited information for planning and implementing an effective, department-wide future social media screening program.
As the report notes, the policy shift was inspired by a terrorist attack the searches might have done little to prevent. The pilot programs rolled out December 2015, meaning the planned intrusiveness expansion predates President Trump's grandiose border plans.
This is bound to have a chilling effect on Americans who don't even plan to travel out of the country. Anyone spending much time interacting with immigrants/visa holders/permanent residents on social media can expect to have their sides of conversations revealed by these searches, even if they're natural-born US citizens located well outside the DHS's Constitution-free zones. The latent threat of exposed convos could steer US citizens away from engaging with anyone whose nationality might not be 100% American.
The new rule is silent on the subject of passwords, but it's pretty clear reluctance to turn over this info will result in "incomplete" searches of immigrants' devices. The best case scenario is they're free to go… without their devices. The worst case is hours of detention while CBP/ICE agents attempt to talk detainees into handing over this information.
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