In this day and age social media is a part of most people’s daily lives. Updating your status on Facebook, posting pictures on Instagram, making witty commentary on Twitter, and checking up on colleagues on LinkedIn have all become part of our day-to-day activities. But it’s not just family and friends who may be viewing your updates. The Department of Homeland Security (DHS) recently announced that it intends to monitor the social media of immigrants—even permanent residents and naturalized US citizens. Additionally, in May this year, the Trump administration approved a new questionnaire that asks for social media handles going back five years for visa applicants worldwide. Historically, consular officers and USCIS adjudicators have, on occasion, also used Google searches and checked social media to research visa applicants and verify information on the submitted paperwork. For all these reasons, it couldn’t be a better time to discuss how various government agencies might be using the information on foreign national’s social media sites, specifically in regards to adjudicating visa applications and determining admissibility to the United States.
What is the government looking for on social media sites?
There are many things the government could be looking for when examining a foreign national’s social media feed. Apart from the obvious one: looking for foreign nationals who are a national security threat, for family-based immigration cases, they could be looking for Facebook posts and status updates to see when a couple actually got engaged in order to assess whether foreign nationals who entered on a visitor visa had the intent to stay in the US before they entered. They could also be looking for obvious fraud where a social media account shows a person is actually in a relationship with someone other than the person they are petitioning for (or being petitioned by).
For employment-based immigration, the government could be looking to see if the foreign national has violated past visas to the US by working in the US without authorization. For example, an actor posting about his performances in the US while on a visitor visa would likely encounter a problem when trying to get a future visa. Was that the Empire State Building in the backdrop of a commercial photograph taken of a model clearly working while in the US on a student visa? If so, that model may not be granted another visa on the theory that violation of a past visa makes it likely they may violate a future visa.
What about for nonimmigrant visas including H-1Bs, L-1s, and O-1s?
Officers could also use social media to verify someone’s professional title. For example, consular officers at a US Embassy/Consulate may research social media for either L-1 or H-1B applicants to see if their LinkedIn page reveals that they are in a position which contradicts what was said on the visa application. For example, L-1A applicants must show that they have recently been in a management or executive level position for a company outside the US. If their LinkedIn account shows otherwise, they could be in trouble. Analogously, an H-1B visa applicant coming to the US Embassy/Consulate to obtain an extension of their H-1B whose LinkedIn account shows them as an administrative assistant when they are supposed to be acting in a professional-level role could be refused a visa.
For O-1 visas, consular officers could be examining social media sites to get a sense of career accomplishments. If foreign nationals use an alias and all their publicity is under a different name than their legal name, the government could be getting an inaccurate view of their level of renown. Of course, pointing this out to the officer at the consular interview or including the alias name in a visa application can go a long way to prevent this problem.
Why is the government monitoring social media?
One of the main reasons the government is monitoring foreign nationals’ social media is for national security, the Trump administration says. They want to examine what websites the foreign national has been visiting, what they may have posted and tweeted, or what others may have posted on their social media pages to determine if the person has ties to terrorism or other nefarious groups. The government may also examine sites to look for instances of fraud or misrepresentation on visa applications or petitions.
Can the government force me to provide my login and password?
This is the question of the moment right now. As we mentioned, the government introduced a questionnaire earlier this year to be completed by all visa applicants. This questionnaire includes an item requesting the usernames and handles for all social media accounts a person has used in the last five years. Although providing this information is voluntary at the moment, the questionnaire explains that failure to provide such information could potentially delay or prevent visa processing.
At the airport or other ports of entry to the US, Customs and Border Protection (CBP) could ask for phone passwords and also examine social media accounts. This applies to not only foreign nationals but also American citizens. There have been multiple cases of CBP forcing US nationals to give their phone passwords to border officers. It seems no one is guaranteed a border crossing without the potential for these types of questions.
Due to the searches, Senators Ron Wyden and Rand Paul introduced a bill earlier this year that would make it illegal for border officers to search or seize cellphones or electronic devices for US citizens without probable cause. "Americans’ Constitutional rights shouldn’t disappear at the border," Senator Wyden said at the time. "[T]his bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans’ personal photos and other data."
Wait, is this all “legal”?
The Fourth Amendment protects people from unreasonable search and seizure and even though the government has much more latitude to conduct searches at the border than it does anywhere else, federal judges have found that searches at the border still need to be “reasonable.” While DHS might argue that the Fourth Amendment doesn’t even apply to foreign nationals, privacy advocates argue that it does and while ordinarily there are limited Fourth Amendment rights at the border for US citizens and foreign nationals alike, a search of an online account isn’t actually happening “at the border” because technically it’s happening wherever the server is located. It's not entirely clear if the right extends that far. Al Gidari, the director of privacy at the Stanford Center for Internet and Society, tells the Atlantic: “While the reasonable-suspicion standard for a border search is pretty low, it would at least preclude a blanket rule that every traveler disclose their passwords to online material and services.”
So is it legal or not?
The argument about the government’s ability to force a person to reveal their password is still in flux. Travelers should be prepared to be asked for passwords and possibly face lengthy delays or denied entry if they do not provide the requested information.
Earlier this year while testifying in front of the House Homeland Security Committee, former DHS Secretary and now White House Chief of Staff John Kelly seemed to summarize the administration’s sentiment on foreign nationals and social media: “If they don’t want to give us that information, then they don’t come." This statement would certainly be in line with what is usually DHS’s policy about admission—namely, that foreign nationals seeking entry are asking for a benefit from the US government. It is up to the US government to determine how and when they will issue that benefit. If the US government wants to demand that foreign nationals provide a password as a condition of admission, DHS maintains it has a right to do so.
The current administration is using every tool at its disposal to assess a foreign national’s admissibility. Checking social media is one of these new tools and travelers to the US should be aware of this development. With the increasing restrictions and hurdles that travelers to the US are facing, it’s no surprise that there has been a dramatic decline in visitors this year. Social media and cellphones are integral to our lives, and in the coming months and years it will be seen if these potentially invasive searches cause more travelers to go elsewhere.
UPDATE JANUARY 12, 2018: US Customs and Border Protection have released new guidelines for searching electronic devices at the border and ports of entry. With the release of the guidelines, CBP official John Wagner said in a statement that "border searches of electronic devices are essential to enforcing the law at the US border and to protecting the American people.” The agency claims the searches are not a violation of privacy rights.
Under the new guidelines that are intended to formalize the practice of searching devices and how the information is handled, travelers may be asked to unlock their electronic devices for inspection or provide pass codes (which codes would afterwards be destroyed by the government). Travelers can disable the devices’ data transmission since for a “basic” search only information stored on the device—not cloud-based—would be subject to search. If officers have reasonable suspicion of a criminal act or potential threat to national security, with a supervisors’ authorization they can perform an "advanced search” of the device and copy its information.
Democratic Senator Ron Wyden, a prominent supporter of privacy rights, called the new CBP guidelines "an improvement" but said they still go too far for American citizens. He said in a statement: "Manually examining an individuals' private photos, messages and browsing history is still extremely invasive, and should require a warrant. I continue to believe Americans are entitled to their full constitutional rights, no matter where they are in the United States.”