Another Invasive, Costly DHS Proposal Chilling Free Speech At the Border

Written by Taylor Moore

Earlier this year, the Department of Homeland Security (DHS) issued a proposal to begin requesting information pertaining to Chinese visitors’ social media identifiers on the Electronic Visa Update System (EVUS) form. The EVUS is the online form that Chinese citizens who hold long-term visas to visit the U.S. must complete in order to be admitted to the U.S.

This is not the first time we have seen this type of proposal from DHS: in 2016, CDT submitted comments opposing a DHS proposal that asked people traveling to the U.S. through the Visa Waiver Program (VWP) to volunteer information about their “online presence” and social media use. In our comments and a joint statement signed by over 30 organizations, CDT raised concerns that this proposal amounted to an expansion of surveillance of U.S. visitors and residents alike.

Last week, CDT submitted comments in response to the most recent proposal, arguing that the new proposal would raise the same issues as the VWP program.  It would be highly invasive and create a significant burden on the freedom of expression of Chinese citizens. The proposal is also not likely to be effective, and would impose significant additional costs to the visa update system. And, because the EVUS targets Chinese citizens, the proposal raises particular concerns with tracking and recording the use of social media by citizens of a country notorious for its censorship of the Internet.

A request for information about an individual’s “online presence” is an open-ended inquiry that is highly invasive. Unlike a request for an individual’s address, which is a distinct question that yields a specific, static data point, the DHS proposal is asking Chinese travelers to give CBP an open window into their online lives and activities. Travelers may not be fully aware of how much access they are giving CBP to a broad array of their online communications. Public social media accounts can contain years’ worth of messages, photos, and videos, including posts from the individual and comments from others. It is not clear what CBP might consider relevant, or what sort of information could lead to an adverse decision against admitting someone to the U.S.  Indeed, Chinese visitors may be more likely to provide a lot of information in response to this “voluntary” prompt out of concern that their application with be rejected otherwise. Through this and other programs, CBP could end up amassing a substantial amount of information from travelers — and the U.S. citizens in their social networks — that may then be shared with other parts of the intelligence community. These databases also create a significant risk to individual privacy in the event of a data breach.

A significant concern of this invasive information collection is the chilling effect on the freedom of expression for Chinese travelers. Travelers from China already face significant surveillance and censorship from their own government of their communications and the information they post online. By listing their “online identifying” information, Chinese citizens may risk disclosing activity that is prohibited by the Chinese government and linking their offline identity to their online activity. There is also a risk to Chinese travelers if this information were disclosed through a breach of CBP records or potential information-sharing between governments.

Moreover, online communications are highly contextual and susceptible to interpretive error. There is a risk that Chinese visitors will mistakenly be denied entry to the U.S. due to misunderstandings of language or necessary cultural understanding.  This risk could lead Chinese travelers to feel pressure to self-censor by curating their online accounts so that they do not reflect potentially controversial or sensitive information.

We also question how effective the proposed information collection would be because of the ease in which an individual could sidestep the entire process. DHS notes that the purpose of collecting online identifiers is to stop terrorism. However, travelers with ill intent can edit, remove, or fabricate public social media postings and are not likely to volunteer information that would raise questions about their admissibility to the U.S. The most likely result of the proposed change to the EVUS is that DHS will be inundated with useless information from innocent travelers who feel compelled to disclose information.

Overall, the collection of online identifying information of any travelers will undoubtedly chill free expression and would be a tremendous administrative burden. This proposal also creates unique harms to Chinese visitors because of China’s strict censorship and surveillance methods for its citizens, and the chilling effects they would face from additional government scrutiny of their online activity. CDT urges DHS to withdraw the proposal.

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