New State Department rules, effective since May of this year, require applicants for visas to enter the United States to disclose all of their social media accounts, including those that use a pseudonym. The applications are shared widely within the US government, and in some cases with other governments.
Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program at NYU, has joined with the Knight First Amendment Institute at Columbia University in suing the State Department to end the intrusive program.
In this WhoWhatWhy podcast, Patel explains that, while the rules are aimed at noncitizens, Americans can be affected because of their associations with foreigners in social media. She points out that the government’s own tests have produced no evidence that social media screening identifies any national security threats, and she is concerned that border agents are not trained to evaluate personal expression in other languages and cultures, which could include sarcasm, idiomatic speech, or harmless comments intended as humor.
Patel also talks about the unconstitutional inspection of the phones and computers of American citizens at border crossings, and the frequent “voluntary” collection of photos of travelers that comprise a growing database for facial recognition technologies.
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|Peter B. Collins:||Welcome to another Radio WhoWhatWhy Podcast. In San Francisco, I’m Peter B. Collins.
In May of 2019, the State Department imposed new rules on those who wish to visit the United States. Visa applicants are required to disclose all of their social media handles, and this raises a number of questions including the chilling effect on those who might want to visit the United States but not subject themselves to this level of disclosure. Faiza Patel is the co-director of the Brennan Center’s Liberty and National Security Program at New York University, and she joins me today because she and others have filed a lawsuit to challenge this program and see if we can revise it. Dr. Patel, thanks for joining me today.
|Faiza Patel:||Thanks for having me, Peter.|
|Peter B. Collins:||And let me begin by thanking you and your associates at the Knight First Amendment Institute at Columbia University – and the plaintiffs in the case that we’ll talk about in a moment – for bringing these issues to public attention. I find it amazing that Americans have been silent in the face of these intrusive procedures that are currently visited on those who want to visit the United States, but I suspect that American citizens will probably be next in this kind of surveillance.|
|Faiza Patel:||Yes. In fact, you know, the interesting thing is that actually they already are, because if you examine the social media of someone who’s coming to travel to the United States, so say my brother lives overseas and he wants to come visit me and if the State Department and the Department of Homeland Security started looking at my brother’s social media, they’re inevitably going to pick up information about me and what I say and what I think. So while the immediate impact, the sort of primary impact, is on people who are overseas who want to visit the United States, there’s definitely an impact on people in the United States already because they are interacting with these people.|
|Peter B. Collins:||Now, this is a result of President Trump’s call for extreme vetting of those who are permitted to visit or immigrate to the United States. But is there any indication, have there been any studies that show that this procedure, these requirements, actually have a useful impact?|
|Faiza Patel:||Actually quite to the contrary. There’s no study demonstrating that looking at people’s social media is going to allow you to identify threats to public safety. And, in fact, there have been some pilot programs that were run by the Department of Homeland Security and the Inspector General of the Department issued a report about these programs back in 2017 and found that DHS actually hadn’t bothered to evaluate whether these programs were effective in meeting their supposed goal, and that these programs didn’t provide a suitable basis for building out an entire new set of programs.|
|Faiza Patel:||And also back in 2016 when there was a transition between DHS, between the Obama administration and the Trump administration, these pilot programs were discussed in transition documents put together by DHS officials. And the consistency that we found in these documents was that they did not find these programs to be useful. They did not think that looking at social media helped them to identify security threats for a number of reasons, including the difficulty of interpretation, local language, different cultural norms. Just basically the way people work, talk on social media, which is often short form, or sarcastic. So for all of these reasons they had difficulty in… they didn’t find any national security use in social media. So not only is there no evidence that it works, there’s actually lots of evidence that suggests that it doesn’t really work.|
|Peter B. Collins:||Well, and I have a hard time investing power and authority in officers of the Customs and Border Patrol to properly interpret the information they get. Even if they only have my social media handle from Twitter or somewhere like that, these are bits of data that can be used to build profiles. And a profile could be as completely wrong as it might be accurate, depending on who is doing the interpretation.|
|Faiza Patel:||Right. So that in fact is exactly right. One of the things that we describe in the lawsuit is that what collecting social media handles from almost 15 million people each year means is that the State Department would be able to, and DHS which it shares the information with, will in essence to be able to build a registry of all of these people, and what they’re saying online and what their political views are, what their religious views are. So it is in fact basically the creation of this registry. And as I mentioned earlier, it’s not just the people overseas who are seeking to come here who are impacted, it’s also all of the Americans who they interact with. So social media is inherently an interactive thing. You don’t just talk to yourself on Facebook, you’re communicating with other people so they can see who your friends are, who your relatives are, what those people are saying. It is actually a very, very intrusive way of gathering information.|
|Peter B. Collins:||So professor, if I’m a foreign national, let’s say I’m Polish and I arrive at JFK and in my visa application I had to disclose all of my social media handles. Is it then appropriate, can they ask me to open my Facebook or open my Tik Tok account? Can they look at my pictures in Instagram?|
|Faiza Patel:||There’s two sets of issues over here. So one is that consulate officers are sitting in US consulates around the world are now able to look at these social media accounts. So even before you actually get to the United States, somebody is going to pry into what you’ve said online, whether you’ve expressed concern about U.S. foreign policy, whether you like the President or not, all of these kinds of things are available to consulate officers at the time that they issue a visa. Now that decision making is basically a black box to anybody. Those decisions are not reviewable and so you can never really tell where the impact has been of the social media on the decision making process for consulate officials. Then if you have been given a visa and you travel to the United States, there are two other things that are going to happen.|
|Faiza Patel:||So one is that as you mentioned, Customs and Border Patrol can question you when you’re coming into the United States. And there’s a fair amount of leeway given to CBP Officers to question travelers coming to the US. And the big issue around that has been whether or not they can get access to your electronic media. So whether you have a laptop or whether you have a cell phone – and you’ve been using social media on those devices – could leave them open to being examined by people at the border. So you saw a couple of months ago, there was this case of this young Palestinian student who was on his way to Harvard and got stopped at the border because the CBP officer didn’t like a comment that somebody else had made on his Facebook page. But that’s sort of the second level at which this stuff can be used.|
|Faiza Patel:||And then the third level, which is also really important for us to keep in mind, is that there is an initiative in DHS to continuously monitor people even after they’re in the United States. So even if you make it through the gauntlet of visa CBP officer, and you’re here, let’s say you’re a student, you’re here doing your undergraduate degree for four years, there is this possibility that they’re going to be monitoring what you’re saying online, and tracking your political beliefs in particular is something that we’re concerned about.|
|Peter B. Collins:||And Dr. Patel, this has a chilling effect on the expression of personal opinion. It boils down to examining people’s thoughts or the thoughts of people that they exchange thoughts with. And this becomes so treacherous in terms of who can evaluate what somebody else was thinking at a certain point in time. You don’t know the context, you don’t know the stimuli that caused somebody to make a tweet or some other kind of public comment. And I know that non-citizens do not enjoy constitutional rights or the coverage of the Bill of Rights when they arrive at our borders. What rights do they have?|
|Faiza Patel:||So the plaintiffs in this case are actually two documentary film associations who are located here in the United States. And these two, both of these documentary filmmakers associations have an international presence and their goal, one of the things that they try to do is they try to get filmmakers from around the world to come to the United States and present their work. And they connect with these filmmakers often over social media. Because you know a lot of times that’s how you discover new ideas, new creators and the like.|
|Faiza Patel:||And so this lawsuit is brought by Doc Society and International Documentary Association on behalf of their members. Now the members themselves may not be American citizens, but they are people who have connections with the United States. So they may have lived here for a time either to study or to work or do filmmaking. So they have the kinds of connections to the United States that actually brings them closer to the kinds of constitutional rights that U.S. citizens enjoy.|
|Faiza Patel:||And then the lawsuit is also brought on behalf of the two organizations themselves because these organizations actually use social media as I mentioned, to connect with film makers and creators around the world. And if those people are chilled, and are now reluctant to put their views forward, these organizations themselves are hampered in their work.|
|Faiza Patel:||I wanted to mention one other thing if I may, which is that a lot of people around the world use pseudonyms on social media. So if you are worried for example about retaliation from your home government as you talk about political issues or you are an activist or you’re documenting human rights abuses, you are going to likely be using a pseudonym online to prevent people from retaliating against you. And we’ve seen a lot of retaliation a lot of countries have done against what people post on social media. So it’s a pretty understandable thing.|
|Faiza Patel:||Now of course they would have to disclose those identities to the State Department if they wanted to come to the U.S. to continue with their work. And that I think is a particularly compelling case of how this kind of registration requirement would kill what people say on social media and potentially even make them vulnerable to retaliation.|
|Peter B. Collins:||The State Department rules indicate that once the information is collected, it can be kept indefinitely. It can be shared broadly among federal agencies and in some circumstances can be disclosed to foreign governments. Now if that’s Saudi Arabia, if it’s in some cases the Philippines right now, or if you are a Uighur or related to a Uighur in China, these disclosures to a host government could lead to incarceration or even in some cases execution.|
|Faiza Patel:||Exactly. And that’s exactly the issue that we’re trying to highlight here with these pseudonymous accounts, which is that when you look at the systems that have been built in the State Department and in the Department of Homeland Security, what you have is a very easy flow of information. So the entire database that is used for issuing visas, a consulate database, is actually mirrored inside DHS’s system. So you have all of this information housed by two big agencies and each of those agencies have their own very flexible rules, both about how long they can retain the information and then again, as you mentioned, about who they can share them with.|
|Faiza Patel:||And particularly if you think about the fact that it’s not just the social media handle of the person overseas but also the identity and views of people here in the United States who they are talking to online that could get picked up through this program. And then you consider that this information can be shared across different domestic agencies as well, that also creates a whole other set of very troubling implication.|
|Peter B. Collins:||Dr. Patel, this program is pretty new, but have you seen any indication that people have gone from a visa application disclosing their social media handles and ended up on the No Fly List?|
|Faiza Patel:||I have not. But, as I said, it’s very difficult to know whether your social media is the thing that might have impacted the issuance of your visa. And as you know, the No Fly List itself isn’t public. So it’s sort of like two black boxes combined giving us a very large black box.|
|Peter B. Collins:||Indeed, yes. So what are you asking the court to do as you challenge this State Department rule?|
|Faiza Patel:||So in essence we’re asking the court to give us a declaratory judgment that the registration requirement violates the First Amendment. We also have a challenge in the lawsuit under the Administrative Procedures Act so we basically want the court to enjoin this program going forward and to remove any information that might have been collected through this requirement.|
|Peter B. Collins:||Okay. And I want to talk a minute about a related issue, but I want to be clear to our listeners that I am shifting from talking about the rights of non-Americans to the rights of American citizens at the border. Because Dr. Patel, we have had chilling accounts in the past year alone of journalists who have been stopped at a border crossing. They are detained but not arrested. So they’re not permitted to make a phone call or engage an attorney or other legal counsel. They are told that they must cough up their devices, which are removed from them, taken to another room and presumably copied. And they are often peppered with very personal questions, including political questions, about their attitudes toward the President of the United States. And this is an incursion on our codafied constitutional rights. And yet I don’t hear a peep of criticism or any call to investigate these particular instances. And I feel like people are really getting used to these police state tactics and they just say, “Well, I don’t have anything to hide. You can look at my phone.”|
|Faiza Patel:||Yeah. So actually, there has been some legal developments in the space, so there is a decision that came out, gosh, I’m going to say even, I mean to be fair, a lot of this started before the Trump Administration and it’s just been magnified and increased during the Trump Administration. So well before 2016 this issue of border searches was one that was pretty live. And there was a court decision that came out, I’m going to say around 2015 or so, a Federal Appeals Court held that customs and border patrol couldn’t do these devices, couldn’t do what they call forensic examinations of devices unless they had some reason to suspect the person whose device they were searching.|
|Faiza Patel:||And so basically what that meant was that it sort of created this 2-tier system. So they could look cursorily at your device, but they couldn’t, as you mentioned, take it from you and go off and image it unless they had some reason to be suspicious of you. And DHS has, actually CBP and then more recently ICE, has revised their rules in order to reflect this. But they’ve given themselves a loophole, which is for national security, which they can use pretty easily.|
|Faiza Patel:||And then most recently there was another decision just a couple of weeks ago which also pushed back against this idea that we have no rights at the border. And that really has been, it’s been a slow movement, but I think it is something that’s building. DHS takes the view that if you’re at the border, all bets are off. We can do whatever we like. And that’s not correct. They have certain interests of the border relating to making sure there’s no contraband coming into the country and making sure you’re legally authorized to come into the country. But beyond that they don’t have and they shouldn’t have carte blanche to do whatever they like to people who are at an international border. And I think that has to change and I am hopeful that it will change over the next few years.|
|Peter B. Collins:||When you arrive from a foreign destination in the United States now, you are given the option of having a picture taken and they tell you that it’s optional. It will expedite your processing when you get to the officer who’s going to examine your documents. And I’m wary of this. I believe the government has enough pictures of me. And so do you advise people to decline that photo if they feel that way or is it better just to not make waves, go along with the system, allow what appears to be an incursion again on our constitutional rights? Where do we stand and fight and where are we better off to acquiesce?|
|Faiza Patel:||Yeah. I think there’s a couple of things to unpack in your question there. So one is obviously people have enrolled in programs like TSA Pre-Check and the like, which allow you to go through the booth and glide through the border, the passport control pieces at least. And then you have the more, as you say, the automated machines. And now more recently you have this push, which is not clear exactly what they’re doing, but where basically they want to test facial recognition at the airports.|
|Faiza Patel:||And it seems to me that the place for me particularly that I really draw the line at is at the facial recognition thing. I think if we allow facial recognition to become normalized at the border, at your local grocery store, at the subway, all the places where people are trying to use it, then we will very quickly find ourselves in a China style surveillance state and it will be much too late to do anything about it.|
|Faiza Patel:||That’s why it’s been really encouraging to see some municipalities including – well, really only on the West coast – who’ve been outlawing the use of facial recognition and I think we really need to be cautious about allowing the deployment of that without having a national conversation about what it means to live in a democracy where you can be tracked every single place you go. That really I think cuts to the core of our framework, our constitutional framework and our Fourth Amendment liberties and our liberty to speak and to associate with people.|
|Peter B. Collins:||Yeah. On some summer travel I ended up having to pose for a photo in Germany, in Canada and in the United States when I reentered. And I’m just very uncomfortable because we know that at least the current testing of facial recognition is replete with errors and false positives. And this is something that again, we’re not seeing much political pushback on. And I keep asking where are the civil libertarians among our elected leaders today?|
|Faiza Patel:||Yeah, so I think that we have to remember that we’ve been talking mainly about the border, but of course facial recognition isn’t limited to the border. It is also in our cities. And wherever you have surveillance cameras, American cities have a lot of surveillance cameras, you can retrofit those often with facial recognition. So you not only have pictures of you as you’re going into Germany and Canada and the United States, but when you’re going down to the grocery store. And that I think is really the, as you said, the place we need to stand and fight. And I think actually there are people in Congress who are worried about it and there was a hearing on facial recognition earlier this year, I think in the early fall. But it’s one thing to be worried about it but people actually have to move forward with legislation that regulates it.|
|Peter B. Collins:||Dr. Patel, I want to thank you for joining us today. And as we wrap up, could you just thumbnail for our listeners the central projects of the Brennan Center for Justice, because I know you work on election integrity issues. I recently interviewed Mike German, the former FBI agent who works hard to hold his former agency accountable. You’ve been working on these issues related to immigration. So could you just thumbnail for us what other key projects are underway there at the Brennan Center?|
|Faiza Patel:||Sure. I’d be happy to. So as you mentioned, voting systems are a big concern of ours. We want to make sure that all Americans have the right and the ability to vote in free fair elections. And that means both pushing back against voter suppression laws around the country, promoting automatic voter registration that would get millions more people on the rolls and ensuring that our actual voting machines are secure and not hacked by people seeking to influence the outcome of the election.|
|Faiza Patel:||We work also to push back against the impact of money in politics. We have proposals for small donor public financing that we believe is a better model than the current system, which where you have big money and dark money just flooding the system. We work on criminal justice issues to reduce mass incarceration. And finally, my program in particular works on national security and immigration issues. So in addition to the work that we’re doing around this intersection of national security and immigration, we’ve been working on police use of technology and also on emergency powers that the President can use and the need to reform those very expansive powers that have always been open to abuse and that have most recently been very clearly abused as in the use of emergency authority to fund the recalled border wall. So that’s a sort of a thumbnail of the things that we work on.|
|Peter B. Collins:||Well, I’m very pleased that you’re there every day working on behalf of American citizens and the contract with our government that’s called the Constitution. Faiza Patel, thank you for joining us today.|
|Faiza Patel:||Thank you very much.|
|Peter B. Collins:||Thanks for listening to this Radio WhoWhatWhy Podcast. Send your comments to firstname.lastname@example.org. And I’d appreciate any contribution you can make to WhoWhatWhy to support our investigative journalism.|
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