Immigration In The Age Of Social Media

By TL Loke Walsh

DHS plans to collect social media information on all immigrants

On September 18, 2017, the U.S. Department of Homeland Security (DHS) quietly published a rule that extends the data collection system for storing information of individuals who undergo the U.S. immigration process — adjudication of benefits, investigation of immigration violations, or enforcement actions.

Currently, DHS creates Alien Files — called “A-Files” — for these individuals in two formats: Paper A-Files or electronic A-Files within the Enterprise Document Management System (EDMS). The new system, which will take effect on October 18, 2017, will now include a third format, in which DHS can store applicants’ immigration records — through a combination of paper and electronic records and supporting documentation.

While there’s nothing really alarming about DHS trying to keep its system on par with current technology, tucked right in the middle of its list of changes to the current data collection system, is DHS’ plan to request, among other things, applicants’ “social media handles, aliases, associated identifiable information, and search results.” The regulation includes a provision to:

(5) expand the categories of records to include country of nationality; country of residence; the USCIS Online Account Number;  social media handles, aliases, associated identifiable information, and search results;  and information regarding the DOJ Executive Office for Immigration Review (EOIR) and BIA proceedings;

The regulation also includes a provision to request “publicly available information obtained from the Internet:”

(11) update record source categories to include  publicly available information obtained from the internet , public records, public institutions, interviews, commercial data providers, and information shared obtained through information sharing agreements;

While the program may be voluntary for now, privacy advocates are concerned that immigrants will feel pressure to divulge their social media information.

It is important to note that A-Files are assigned only to certain applicants for immigration benefits, mostly applicants for legal permanent residence (i.e. green card applicants).

CBP has been asking for social media information from ESTA (Visa Waiver Country) travelers

The U.S. Government’s interest in social media is nothing new. As early as June 2016, the U.S. Customs and Border Protection (CBP) added the following social media question to its Electronic System for Travel Authorization (ESTA) application:

 Please enter information associated with your online presence—Provider/Platform—Social media identifier. ” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.

ESTA applies to foreign nationals seeking to travel to the United States under the Visa Waiver Program (VWP) and requires that VWP travelers provide information electronically to CBP before traveling to the United States without a visa.

This change went into effect in December 2016.

DOS will require social media information for visa applications at U.S. embassies and consulates

Another data collection change that includes requests for applicants’ social media information was published in May 2017, this time by the U.S. Department of State (DOS). As part of the visa application at U.S. embassies and consulates, DOS would like certain visa applicants to provide “social media platforms and identifiers, also known as handles, used during the last five years.”

According to DOS:

The additional questions may be sent electronically to the applicant or be presented orally or in writing at the time of the interview. Consular officers will not request user passwords and will not attempt to subvert any privacy controls the applicants may have implemented on social media platforms. Consular officers are directed not to engage or interact with individuals on or through social media; not to violate or attempt to violate individual privacy settings; and not to use social media or assess an individual’s social media presence beyond established Department guidance.

These additional questions will be given to applicants where more information is needed to confirm and individual’s identity or when “more rigorous” national security vetting is deemed necessary. While answering the question on the form is voluntary, failure to provide the requested information is likely to cause delays or even end up in denials.

Publicly available information obtained from the Internet

This latest development is something that is not unexpected. It was just a matter of time before DHS started to collect social media information from individuals applying for immigration benefits. It is the next step in a series of changes that the government already started in 2016.

However, the issue that raises the most concern is DHS’ plan to include applicants’ publicly available information obtained from the Internet, where anyone can publish information about everyone. Applicants could end up having unverified online information as part of his or her permanent immigration record.

This new DHS data collection system is set to take effect on October 18, 2017. Privacy advocates are likely to challenge the rule.