Why You Should Be Concerned About the DHS Plan to Collect Social Media Info on Travelers

In the immediate aftermath of the San Bernardino, Calif. massacre on Dec. 2, 2015, major media outlets, including the New York Times, reported that the Department of Homeland Security had failed to adequately monitor attacker Tashfeen Malik’s social media postings about her support for “violent jihad.” This narrative quickly gained traction, though it was soon proven to be false, as acknowledged by FBI Director James B. Comey when he said two weeks after the attacks: “So far in this investigation we have found no evidence of the posting on social media by either of them at that period of time and thereafter reflecting their commitment to jihad or to martyrdom. I’ve seen some reporting on that.”

Yet, the veracity of this reporting did not appear to matter to other political figures, including presidential hopeful Ted Cruz, who errantly told CNN in March 2016, “If you look at the San Bernardino terrorists, the female terrorist had publicly posted on social media calls to jihad. And yet the Obama administration, in yet another nod to political correctness, refused to even to look to social media.”

Coming at a time of heightened incitement against Muslims and refugees during the 2016 presidential election cycle, false claims about the social media postings of the San Bernardino attackers intensified pressure on federal authorities to escalate their dragnet surveillance of online activities. Now, at least one government agency, DHS, is moving to aggressively expand its powers to collect and monitor the social media information of people seeking to enter the United States through the visa waiver program. Civil liberties advocates say the plan is a human rights disaster that will come down hardest on Muslims, Arabs and people of color.

DHS announced in late June that it proposes to monitor and collect social media and other online information about millions of people seeking to enter the U.S. through the visa waiver program, which allows some foreign nationals from designated countries (currently numbered at 38) to travel to the country for tourism or business for up to 90 days without obtaining a visa. The agency would accomplish this aim by modifying key documents—ESTA and Form I-94W—to include a line that states, “Please enter information associated with your online presence—Provider/Platform—Social media identifier.”

DHS claims that the addition, which would be under the purview of U.S. Customs and Border Protection, will “be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information.” The agency asserts, “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.”

But Rachel Levinson-Waldman, senior counsel for the liberty and national security program at the Brennan Center for Justice, told AlterNet that the proposed change is alarming and potentially far-reaching. “The concern that stands out the most is the chilling effect that this could have,” she said. “The request is so vague; it asks for information about social media and online presence, but there is no definition of what that means. This gives enormous discretion to Customs and Border Protection officers who are looking at information and asking travelers for that information. Any traveler who is coming to the country and thinks he or she might be asked for it, even if it is not officially a requirement, might reasonably think, 'I should be very careful about what I am posting online.’”

In a public statement released Monday, more than 30 civil liberties organizations echoed these concerns, arguing that, “the scale and scope of this program would lead to a significant expansion of intelligence activity.” Their warning was one of many issued as part of a two-month public comment period that closed Monday. DHS is reconsidering heightened social media screenings after previously rejecting a 2011 proposal, according to an MSNBC article by Ari Melber and Safia Samee Ali. For this latest proposal, DHS is required to solicit public input, but the ultimate decision-making power lies with the government agency.

The American-Arab Anti-Discrimination Committee, National Day Laborer Organizing Network and other groups expressed concern that DHS will further expand the federal government’s spying powers. “DHS collection of online identity information is an intelligence surveillance program clothed as a customs administration mechanism,” they wrote. “All of the information collected through ESTA is shared, in bulk, with U.S. intelligence agencies and can be used to seed more intelligence surveillance unrelated to the applicant’s eligibility for a visa waiver. It is likely to be used to augment existing lists and databases for tracking persons of interest to law enforcement and intelligence agencies, with consequences for innocent individuals swept up in those programs.”

According to comment submitted by the ACLU, the proposed change could open the door for the collection of millions of social media users, as well as “the collection of personal information on the tens of millions of social media contacts of those individuals.”

Meanwhile, there is reason to believe that, in practice, such a policy would disproportionately expand surveillance of Muslims and Arabs. “The risk of discrimination based on analysis of social media content and connections is great and will fall hardest on Arab and Muslim communities, whose usernames, posts, contacts, and social networks will be exposed to intense scrutiny,” declared the human rights organizations in their joint statement. “Cultural and linguistic barriers increase the risk that social media activity will be misconstrued.”

Such fears are not hypothetical. The visa waiver program already discriminates against people based on national origin by excluding those hailing from countries the U.S. deems at greater risk of “terrorism.” For example, the state department website explains that “nationals of VWP countries who have traveled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011” are ineligible to enter the country under the program. Earlier this year, the U.S. government provoked outcry after it implemented sweeping changes to its visa waiver program that expand discrimination against people of Iraqi, Iranian, Sudanese, and Syrian descent.

Levinson-Waldman said it is troubling that baseless narratives in the aftermath of the San Bernardino massacre likely contributed to a proposed change that itself is based on false assumptions. "The notion that you can look at somebody's online presence and know what their ideology is, what their risk level is, that is so questionable,” she said. “We are talking about 38 countries with multiple languages and nuances of communication. This is so easy to get wrong. This is so ripe for misinterpretation.”


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