DHS’s Misguided Social Media Retention Policy Jeopardizes Fundamental Freedoms

Last month, the Department of Homeland Security (DHS) issued an alarming notice that DHS would now retain social media information in Alien-Files (A-Files). A-Files are government records, generated in the immigration context, that include the records of an individual as they pass through the United States immigration process, and are retained by DHS for 100 years after the individual’s birthdate. Including a person’s public social media postings in A-Files would expose them to routine scrutiny of their expressive activity and could have a major chilling effect on their participation in online life. After receiving immediate criticism for this announcement, DHS subsequently stated that “[t]he notice did not announce a new policy” and that it “simply reiterated existing DHS policy regarding the use of social media.”

But retention of social media information should not be brushed off as ‘business as usual’ for DHS. This policy, and its negative consequences for the free expression and privacy rights of both immigrants and U.S. citizens, will affect many individuals: Alien Registration numbers, and their related A-Files, are assigned to immigrants, and also to certain categories of nonimmigrants who are granted employment authorization while they are visiting the U.S. Individuals with A-Files include naturalized citizens, lawful permanent residents (green card holders), immigrant visa holders, asylees, and special immigrant juveniles, and student visa holders with optional practical training.

CDT, along with 26 civil liberties, human rights and immigrants’ rights organizations submitted a letter urging DHS not to retain social media information in A-Files.

The coalition opposes DHS’s social media retention policy for multiple reasons:

Retention of Social Media Information Will Be Highly Invasive

A request for social media identifiers jeopardizes the right to anonymous speech online and benefits that stem from it, and exposes particularly sensitive information (like an individual’s religious and political beliefs) to government scrutiny. The content retained under this notice is stored indefinitely, and may be broadly shared with government and private entities. Also, the number of people impacted by this policy is massive– all individuals with A-Files, and the individuals that interact with them on social media.

Retention of Social Media Information Will Chill Free Speech and Free Association

Knowing that their social media content will or could be monitored, immigrants and the individuals that interact with them will feel pressure to self-censor, delete their social media accounts, and disengage from online spaces. Furthermore, citizens’ engagement with immigrants may be inhibited due to their fear of surveillance, chilling the exercise of free association rights while stigmatizing and isolating immigrant communities.

Retention of Social Media Information Invites Abuse with Little Security Benefit

Online communications are incredibly contextual and prone to interpretive mistakes–and the stakes for immigrants are high: Mistakes could lead to findings of inadmissibility, removability (i.e. deportation), or a negative finding of good moral character (which can affect an individual’s ability to naturalize, and attain other immigration benefits). Additionally, collection and retention of social media information creates the risk that improper negative inferences will be drawn from an immigrant’s personal beliefs or opinions. In return, there is no reason to believe that this policy will yield a significant security benefit. Social media screening is easy for bad actors to circumvent; would-be wrongdoers can simply manipulate their social media presence to evade detection.

Indefinite Retention of Naturalized Citizens’ Social Media Information Effectively Treats Them as Second-Class Citizens

Under this notice, the government will routinely and indefinitely retain stores of social media content associated with a naturalized citizen. DHS retains A-Files for 100 years after a person’s birthdate, at which point they are archived, meaning that these records will effectively be retained by DHS for the rest of a naturalized citizen’s life and beyond.  The existence of a persistent dossier of a naturalized citizen’s social media activity will mean that these citizens face scrutiny of their past social media record in ways that U.S.-born citizens will not routinely face.

The Notice and DHS’s Statement Lack Clarity

Many questions have been raised since the notice was issued. For example, it’s unclear if the retention and screening of social media information will occur solely at the time an individual applies for a benefit, or if the surveillance be ongoing. This uncertainty creates confusion and fear for the immigrants impacted by this policy, which, as noted above, will manifest in a retreat from online communities at great personal and public cost.

CDT has worked with coalitions of human rights organizations to oppose DHS’s past attempts to incorporate social media screening into visa processes, and recently opposed the State Department’s regulations seeking to permanently incorporate social media screening into its “extreme vetting” procedures. These proceedings, and many others, are part of a troubling increase in government policies singling out immigrants for disfavored treatment and substantially expanding the government’s routine collection, retention, and sharing of individuals’ social media information. In the context of the past year,  this DHS social media retention policy will unquestionably disproportionately impact Muslims and immigrant communities of color. CDT will continue to strongly oppose government collection, retention, use, and sharing of social media information.