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US: legal issues over social media vetting

US visa rules, which require international students to register details of their social media accounts, will be challenged in court by two documentary film organisations.

The US Department of State's social media vetting rules are facing a legal challenge. Photo: Wikimedia Commons.

The rules apply to an estimated 14.7 million visa applicants

Doc Society and the International Documentary Association, filed the first major challenge to the vetting procedure this December.

“The government simply has no legitimate interest in collecting this kind of sensitive information”

They are being represented by the Brennan Center for Justice, the Knight First Amendment Institute at Columbia University and Simpson Thacher & Bartlett LLP, who argue the new requirements are deterring prospective visa applicants.

The rules, which took effect in May 2019, apply to an estimated 14.7 million visa applicants each year and request all social media handles—including pseudonyms—that applicants have used on any of 20 platforms in the preceding five years.

“The registration requirement is the linchpin of a far-reaching and unconstitutional surveillance regime that permits the government to monitor the online activities of millions of visa applicants, and to continue monitoring them even after they’ve entered the United States,” said Jameel Jaffer, executive director of the Knight Institute.

“The government simply has no legitimate interest in collecting this kind of sensitive information on this immense scale, and the First Amendment doesn’t permit it to do so.”

The lawsuit challenges both the registration requirement and related retention and dissemination policies.

The suit contends that the registration requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests. 

It also contends that the requirement violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because it is arbitrary and capricious.

In a statement, released earlier this year, a spokesperson from the State Department noted that national security is its top priority when adjudicating visa applications.

“Every prospective traveller and immigrant to the United States undergoes extensive security screening,” they said.

Currently, the updated forms collect social media identifiers from Ask FM; Douban; Facebook; Flickr; Google+; Instagram, LinkedIn; MySpace; Pinterest; QZone; Reddit; Sina Weibo; Tencent Weibo; Tumblr; Twitter; Twoo; Vine; Vkontakte; YouKu, and YouTube.

Collecting additional information helps to confirm the identity of applicants, and additional identifiers will be added at a later date, the spokesperson added.

But the screening has been challenged by co-director of the Brennan Center’s Liberty and National Security Program Faiza Patel, who says that the posts on social media are too nuanced to provide accurate information for security vetting.

“Even the government’s own tests haven’t produced any evidence that social media screening works to reliably identify fraud or national security threats,” she said.

“And that isn’t surprising – officials are looking at posts in thousands of languages, and are trying to interpret jokes, slang, and sarcasm in digital spaces where people communicate differently than they would in real life.”

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