OTI to State: Abandon “Extreme” Social Media Vetting

This week, New America’s Open Technology Institute (OTI) joined a coalition of civil liberties organizations in comments to the State Department urging it to abandon its proposal to collect troves of social media data on some 15 million annual visa applicants to the United States. As the coalition explained, the mass collection and analysis of social media data could chill global free expression online, impinge on First Amendment protections in the United States, and have discriminatory effects on marginalized groups and people of color—and all for a merely speculative national security benefit. This tradeoff is counterproductive to the goals of ensuring a safe and efficient immigration system and the proposal should be scrapped

In March, the State Department published two notices for comments on a proposal that would require most visa applicants to the United States to provide any social media identifiers they have used in the past five years for “identity resolution and vetting purposes.” An applicant’s activity on certain designated platforms, if deemed troubling, would then presumably be factored into adverse visa decisions. The new data collection appears to build on a similar 2017 policy that began collecting social media data from 70,000 individuals deemed to pose a heightened risk. But details on this latest “extreme vetting” program are otherwise vague. For instance, it isn’t clear how the content would be translated and evaluated, what types of content would flag an applicant for rejection, nor how the content would be weighed against more traditional forms of security vetting.

The State Department’s proposal resembles a similar “extreme vetting” program that was recently abandoned by Immigration and Customs Enforcement (ICE) after advocacy groups and members of Congress raised serious concerns. The so-called Visa Lifecycle Vetting (VLV), widely known as the “Extreme Vetting Initiative” (EVI), would have scanned publicly available social media data and generated a list of the 10,000 people deemed to pose the greatest risk to national security. ICE claimed the VLV would help predict whether a visitor posed a criminal or terrorist threat or, rather, was likely to be a “positively contributing member of society.” In a March letter to Congress, OTI urged members to use their legislative authority to stop the program, and expressed concerns that the VLV would contribute to a “digital space characterized by fear, censorship, and chilled freedom of speech.” In its place, ICE opted for a labor contract, whereby approximately 180 people would be charged with manually monitoring the publicly visible social-media activity of “high-risk” foreign visitors.

As with the scrapped ICE proposal, the State Department’s data collection plan excessively burdens visa applicants for unproven national security benefits. A February 2017 audit of DHS’s existing social media vetting programs found that they provided minimal value. This inefficacy is unsurprising and would certainly extend to the State Department’s program. As our comments state, it is unlikely that an applicant for a U.S. visa would willingly provide a social media handle that he or she used to engage in extremist or incriminating activity. The comments also point out that there are difficulties with interpreting the content, which may be misconstrued outside of its specific linguistic, political, cultural, or interpersonal context. For example, a British citizen was denied entrance to the United States because he tweeted that he would “destroy America”—a slang reference to partying that DHS agents misinterpreted as a threat. Such incidents raise the risk that social media vetting could chill free expression online abroad, and impinge on the First Amendment rights of U.S. citizens with whom visa applicants communicate. For instance, American family members, friends, or colleagues of a visa applicant to the United States might be less inclined to discuss sensitive political matters on Facebook for fear their comments could be misinterpreted by government authorities and bar their relative from visiting.

Another concern the coalition raises is the likelihood that mass social media vetting will have a discriminatory impact on individuals of certain religions or from certain regions of the world. This is a particularly pernicious risk given the Administration’s “Muslim ban” executive orders, which targeted a set of Muslim-majority countries that have no clear nexus to terrorism or national security. Finally, it remains unclear how the State Department plans to store, use or share the troves of personal data they would collect under this program. The notices do not make it clear whether the data will be manually or algorithmically analyzed, but the latter is likely necessary given the sheer quantity of data 15 million applicants would generate. The coalition warned that algorithmic analysis would “further amplify many of the privacy and discrimination-oriented concerns.”

The State Department should heed the concerns raised by the coalition and follow ICE in abandoning this misguided, invasive, and ultimately rights-threatening program. Harvesting the social media data of millions of visa applicants would undermine core American values of free expression, non-discrimination, and privacy, and would not make us any safer in return.

The coalition letter can be read here.