New DHS Social Media Retention Practices Threaten Privacy, Freedom of Expression

Social media has become an integral part of everyday life for individuals around the world. In light of the growing role of online communication, last week the Department of Homeland Security (DHS) implemented a notable change to its collection and record-keeping of social media information and search results of non-U.S. persons (naturalized citizens, green card holders, immigrant visa holders, asylees, special immigrant juveniles, and student visa holders) in the United States. Per a notice issued in September, the information will be stored in DHS’ visa and immigration history records for each individual, also known as “Alien Files” or “A-Files.” Given the serious threats to freedom of association and privacy posed by this practice, OTI has signed onto a coalition letter expressing concern regarding DHS practices around social media collection and retention.

Prior to the introduction of the notice, this sort of social media data was already collected at the border and under specific situations. During the Obama Administration, DHS launched four pilot screening programs under which immigrants could voluntarily opt in to provide DHS officials with their social media information. However, what is most concerning about the new notice is the decision to aggregate collected social media information into an individual’s A-File, as it demonstrates how integral social media has become to the immigrant vetting process in the United States and also raises significant concerns regarding freedom of speech online for both U.S. and non-U.S. citizens, with little evidence to support the notion that such tactics will improve national security endeavors. 

One of the biggest concerns with the content of the notice is the lack of detail in its definition of social media information. According to the notice, DHS will collect information related to “social media handles, aliases, associated identifiable information and search results.” However, the notice fails to define the terms “social media” and “search results,” leaving the words open for broad interpretation, potentially including any online platform and any form of publicly available online content or communication. The lack of specificity in the notice could enable DHS to survey an individual extensively, permitting the agency to collect information on professional networks, romantic and personal relationships, political and religious beliefs, consumer behaviors and media consumption patterns.

Although some of this information is already available publicly online (through LinkedIn profiles and Twitter feeds, for example), the notion that this content is subject to government examination raises serious First Amendment concerns. The mass collection and aggregation of this information could easily create a “chilling effect” on speech, causing individuals to scrub or delete their accounts, self-censor their speech, and extricate themselves from online spaces. This would not only curtail one’s own freedom of speech and privacy, but the freedom of speech and privacy of communities and voices they associate with as well.

In addition, DHS’ 100-year file retention period will also affect immigrants who go on to become naturalized citizens, as the information collected on them will be retained by DHS for 100 years, after which it will be stored by the National Archives and Records Administration. The long-term collection and storage of this information by the agency also means that it can be used by and shared with other government agencies, state and local authorities, foreign governments, and even private parties (such as employers), demonstrating the extent to which online information can be used to shape and track an individual’s life far into the future.  

Furthermore, given the large population of immigrants and non-U.S. persons in the United States, interactions between U.S. citizens and non-U.S. citizens are common. Given these relationships, the collection of social media and online information of immigrant individuals will undoubtedly result in the collection of personal information of U.S. citizens communicating with immigrants. This not only threatens the privacy and freedoms of these individuals, but may also result in the isolation of immigrant communities as a side effect of protecting the freedoms of U.S. citizens.

DHS’ issuing of this notice—despite the fact that there has been no policy change—demonstrates the growing importance of social media and online tools in relation to national security and immigration practices. However, the reliability of assessing online speech in order to further national security goals is questionable. A recent audit of DHS’s social media pilot programs demonstrated the use of insufficient metrics for measuring program effectiveness thus calling into question the effectiveness of other programs that similarly rely on social media content.

OTI has previously challenged efforts that threaten immigrants’ privacy and freedom of expression at the border and has advocated against the collection of social media information such as passwords. In March, we signed on to a coalition letter about these practices that was sent to John F. Kelly, the Secretary of Homeland Security. In light of DHS’ announcement, we urge the agency to reconsider its policies, its practices, and the impact of both on basic human rights.