This review signaled that the Biden administration may eventually reverse (or at least curtail) this unwarranted and unconstitutional policy. But now the administration is doing the exact opposite, seeking to expand it to an additional 15 million people a year – visa-free visitors to the United States (many of them from European countries).
Current State Department policy casts a wide net. It requires nearly all visa applicants to disclose all social media IDs they have used in the past five years on any of 20 different platforms, including Facebook, Twitter and YouTube. The Department of State and the Department of Homeland Security may retain this information indefinitely, share it with other federal agencies, and release it, under certain circumstances, to foreign governments.
The net approach and the indefinite retention of information from social media have far-reaching effects, even if they are difficult to measure. Many people – scholars, artists and activists – will change the way they use social media if they know that the US government is systematically monitoring their speech and associations. Some will avoid controversial topics for fear that their speech will be misunderstood, opting for self-censorship rather than visa delays or denials. (There may be good reason to be muted: the nuances of different languages, cultures and backgrounds make interpreting social media posts extremely difficult, which may lead US authorities to ban entry to foreigners. due to misunderstandings.) Would-be travelers may also be hesitant to engage with others online, fearing that U.S. officials will one day impute an acquaintance’s talk to them. That concern is well-founded: In 2019, a border agent at Boston’s Logan International Airport allegedly turned away a Harvard freshman from Lebanon because of his friends’ social media posts.
Human rights activists, political dissidents and others who use pseudonyms have additional reason to fear the repercussions of disclosing their social media handles to the US government. These travelers are at risk of U.S. officials intentionally sharing their credentials with foreign governments or inadvertently sharing them with other third parties (through hacks, for example). Rather than risking retaliation from repressive regimes, many of these travelers will simply stop using social media, while others decide not to travel to the United States, reducing the chances of personal connection, professional collaboration and cultural exchange.
As a result, State Department policy not only hinders the speech and association of millions of people around the world, but also deprives Americans of opportunities to hear and interact with these people – whether in online or in person – in violation of our own First Amendment rights. For these reasons, more than 50 civil society groups have condemned the State Department’s policy and two documentary film organizations have filed a lawsuit challenging it. (Our organization, the Knight First Amendment Institute, represents the plaintiffs in this case.)
The government has never adequately explained, let alone provided evidence, of the need for this policy. Obama-era pilot programs have not shown that social media screening is a useful visa verification tool. And during the early days of the Biden administration, the Office of Information and Regulatory Affairs, which analyzes the costs and benefits of regulations, rejected a previous DHS proposal to expand State Department policy; he concluded that DHS failed to demonstrate the policy’s “practical utility” or justify its “monetary and social” costs.
And yet, the Biden administration now wants to double down on Trump-era politics by expanding it. Under the administration’s proposal, U.S. Customs and Border Protection (CBP) would require foreign travelers applying to enter the United States under the Visa Waiver Program to surrender their social media credentials to the government. . (At this time, this group, travelers from approved countries who want to come to the United States for short-term tourism or business trips, can choose not to release this information.)
The question is: Why? More than a year after the Biden administration began examining the usefulness of social media filtering for visa verification purposes, officials have offered no evidence or explanation to justify the policy they inherited from the Trump administration. Yet, through the CBP proposal, the Biden administration is now seeking to adopt this policy as its own. That’s why the Knight Institute filed a Freedom of Information Act lawsuit in April seeking to shed light on the findings of the administration’s review.
Whatever information this lawsuit reveals, it is clear that the policy proposed by the Biden administration would have dire consequences for the freedoms of expression and association. This is the kind of politics we usually associate with authoritarian states, not open societies. It does a disservice to our democratic values and, based on all available evidence, it is not even effective. Biden should abandon that net, not expand it.
